HL Deb 09 May 2002 vol 634 cc1284-340

4.31 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 House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Deputy Chariman of Committees (Viscount Allenby of Megiddo) in the Chair.]

Clause 18 [Governing Bodies]:

The Deputy Chairman of Committees (Viscount Allenby of Megiddo)

Before calling Amendment No. 93, I must inform the Committee that if that amendment is agreed to, I cannot call Amendments Nos. 94 to 96.

Baroness Ashton of Upholland

moved Amendment No. 93: Page 11, line 42, leave out paragraphs (a) and (b) and insert—

  1. "(a) persons elected or appointed as parent governors,
  2. (b) persons elected or appointed as staff governors,"
The noble Baroness said: I shall begin by explaining the changes which lie before the Committee today in terms of governance. The past 20 years have seen progressive delegation of funding and responsibilities from local education authorities to individual schools. Schools are now largely self-managing, responsible for their own budgets and accountable for all aspects of their performance.

The public accountability of governing bodies is an essential feature of current arrangements in which schools, rather than education authorities, are the key unit of delivery. That has brought about a dramatic increase in the weight and range of governing body responsibilities. Concerns about how governing bodies are made up and the role they have played has been debated at length.

That led to a public consultation in November 2000 and to the Way Forward Group, on which all the main national governing body organisations and the churches were represented. It was established in April 2001 and led to the consultation paper, The Way Forward. I shall go into more detail about those arrangements, but I now turn to the amendments.

Amendment No. 93 serves three purposes, which I shall take in turn. First, the proposed changed wording of subsection (2)(a) will allow us to address parent governor recruitment and representation issues. Under current legislation, if it proves impossible to find a parent of a registered pupil at the school, governing bodies are allowed to appoint a parent of any child of compulsory school age. As currently drafted, that option would no longer be available to governing bodies. The amendment therefore allows us to maintain the status quo in that respect.

Secondly.. Amendment No. 93 proposes a change to Clause 18(2)(b). Subsection (2) sets out the categories of governor that a governing body must consist of. 'The amendment prescribes that: persons elected or appointed as staff governors must be on the governing body. The advantage of the proposed change is that the phrase, employed to work at the school is not used here. That phrase could be interpreted restrictively to mean only staff employed under contracts of employment, which would be unhelpful and contrary to our intentions. Staff who work at a school under a contract for services, for example, catering staff, are currently able to serve as staff governors and we want to put beyond doubt that such staff will continue to be eligible to serve as a school governor. It is important to have clear definitions in the Bill, and that is what the amendment aims to achieve.

Thirdly, the proposed changes to paragraphs (a) and (b) create consistency in the definitions used in paragraphs (a) to (e) of this subsection, and thus give this provision in the Bill greater clarity and transparency.

1 should like also to take this opportunity to alert the Committee to a further amendment, which will be needed and which I shall table on Report. There is a drafting error in Clause 18(2)(d), which relates to community governors, formerly known as co-opted governors. As drafted, it would mean that every school must have a community governor. Voluntary aided schools have never had such governors and we did not propose any change to that in the consultation. I apologise to the Committee. I shall table an amendment to provide that Clause 18(2)(d) does not apply in the case of voluntary aided schools. I hope that the Committee will agree that Amendment No. 93 will benefit governing bodies, and I trust that noble Lords will accept it.

I turn to Amendment No. 106. Paragraph 3(4) of Schedule 1 relates to the powers of governing bodies to borrow money and grant security. The wording of this paragraph is intended to replicate the current provision in Schedule 10 of the School Standards and Framework Act 1998, which currently states: The power to borrow sums and grant security mentioned in sub-paragraph (2)(a) may only be exercised with the written consent—

  1. (a) of the Secretary of State, or
  2. (b) if an order under sub-paragraph (4) so provides, of the local education authority".
It was always intended to carry forward the provision that governing bodies would have to seek consent from either the Secretary of State—or in Wales the Welsh Assembly—or from their LEA where an order required that. However, as currently drafted, governing bodies would have to seek consent from the Secretary of State or the Welsh Assembly as well as from their LEA, where an order requires that under subparagraph (5).

The amendment is needed to make approval by the Secretary of State or Welsh Assembly and approval by the LEA alternative options as we intended, and as is currently provided for in the School Standards and Framework Act 1998. I hope, therefore, that the Committee will accept the amendment. I beg to move.

Baroness Blatch

I have a number of concerns about the amendments. First, I am concerned that if Amendments No. 93 and 106 are accepted—we know that the noble Baroness will ask that they are—there will be no debate today on the inclusion of teachers in the governing bodies. I think that that is monstrous. For that reason I want it to be recorded that, by their amendments, the Government have made it impossible for us to discuss what the nature of staffing members will be.

Baroness Ashton of Upholland

I apologise to the Committee. Until the Deputy Chairman said that, that was not my intention. My intention was, indeed, to debate the group of amendments tabled by the noble Baroness. I am completely in the hands of the Deputy Chairman. That was not my understanding of what would happen if we agreed to the amendments. Had I known that, I would not have asked for them to he debated in this order.

Baroness Blatch

The noble Baroness would not have had any choice about debating the amendments in this order because they come in this part of the Bill. I do not know how many officials are helping the noble Baroness on this matter. It is not the Deputy Chairman who should have enlightened her as she stands up in the Chamber; her own officials should have enlightened her. I believe that they are remiss. This will inhibit debate on the composition of governing bodies as regards the nature of staffing members, which is monstrous.

Even with the letter received from the noble Baroness and the explanation we have had today, I find it difficult to understand the technical difference between persons who at the time of their election are parents of registered pupils at the school or persons elected or appointed as parent governors. One way or another they will be parents. They usually are parents of registered pupils at the school. If they are not, there is always a fallback position as with other statutes. There is no reference in Clause 18, and certainly no reference as far as concerns the two amendments, to that applying specifically to voluntary aided schools. The noble Baroness referred to an amendment which will be tabled on another day. However, we are talking about the words of the amendment today. I find that particularly disturbing.

I refer to a letter received from the noble Baroness. I suspect that anyone else with any involvement in the Bill has also received the same letter. The part which refers to Clause 18 states: The amendments to Clause 18", that is, Amendments No. 93 and 106, concern the definition of parent and staff governors". Simply to say, persons elected or appointed as parent governors does not make it any clearer. So the idea that this is the better definition of parents and staff governors is wrong. It does not do that. It continues, Current regulations state that parent governors should be drawn from the parents of children at the school. When that is not possible,"— as I hinted earlier, there is a fallback position— current regulations allow the governing body to appoint a parent of a registered pupil or where that is not possible a parent of a compulsory school age child". It then states: The latter route is not available to Voluntary Aided schools". What tells us that it is available to voluntary aided schools in the amendment? I certainly do not see that in the amendment. It continues: Partners"— I assume that the partners are Church communities— have raised this issue and, on reflection,"— that is to say, the Government have reflected— we think it sensible to provide that VA schools also have this option". I have no objection to that. In fact, I wholeheartedly support voluntary aided schools enjoying that if that is what they want. I also hope—although I cannot presume because it is not in my field—that voluntary aided schools would want the staff to be represented by teachers in the school. Again, we shall not be free to have that debate today. That is unfortunate.

The Government then say that they have taken the opportunity to clarify the definition. I do not believe that they have done that either for parents or staff. It continues, (the definition of staff governor having also been the subject of representations to the Department), following advice from Parliamentary Counsel that this would provide greater consistency with the rest of that clause". I think that they have failed on all counts in these amendments. I just lament the fact that we shall not be able to discuss our amendments about the nature of the staffing members, including teachers.

Lord Peston

I am slightly appalled and I am also a little taken aback because if Amendment No. 93 were grouped with the remainder, we could debate them all together. I do not understand why we just do not group the amendments together. That would solve the problem. It would not distress either the Minister, the Official Opposition or me—me counting a great deal in this regard.

I have one or two points to make. But perhaps I may first inquire whether we can group the amendments so that we do not ruin our whole afternoon's proceedings.

Baroness Blatch

Before the Minister answers that, perhaps I may make another suggestion. If she does not move Amendments Nos. 93 and 106 today they will both be left on the table. It would leave us free to discuss all the other amendments in their normal groupings.

Baroness Ashton of Upholland

I am grateful to my noble friend Lord Peston. I should prefer to take these amendments with the bigger group and have the kind of discussion which the Committee would welcome on the whole area.

Lord Peston

If that is agreeable to Members of the Committee, perhaps I may proceed as if we were in the group. However, I want to talk about Amendment No. 93 for the moment.

My difficulty, to which I hope my noble friend will reply, is that the amendment does not do what I thought it would. In particular, it does not make sure that the parent governors are parents of children at the school, or that the staff governors—and we shall define the staff in more detail later—should be staff at the school because it says, elected or appointed as". My understanding of the English language is that anyone could be "elected or appointed as" and then told, "Well, you are the staff governor". It does not say that, a member of staff should be elected or appointed as", and it does not say that a parent in the school should be elected or appointed as". I know that the parliamentary draftsmen are fantastic people. We may well be told in due course—as I have been when dealing with many other Bills—that the English language seems to tell us something completely different, but it means what I have just said that it should mean. Subject to that, we need some explanation that the amendment does the trick. Certainly, in terms of ordinary parlance, it does not do the trick. It does not remotely tell us that the staff governors will be staff and that the parent governors will be parents.

Amendment No. 93 is not in the large group, but none the less I think that it would be helpful to debate it as an amendment in the group. I shall certainly, as will other Members of the Committee, be talking about other amendments in the group in due course.

4.45 p.m.

Baroness Walmsley

I rise to speak to Amendments Nos. 94 and 97 which I now understand are in the group. The amendments seek to ensure the representation of both teacher and staff governors. As the Minister wants to amend the clause, the Bill would only require, persons elected or appointed as staff governors". It is not stated on the face of the Bill that we have both a teacher and a member of the support staff as staff governors. The Explanatory Notes state in paragraph 73: The regulations will also establish a single staff governor category … and … within that category one place should be reserved for a teacher". From these Benches, we believe that teacher governors are very important to the deliberations of governing bodies. A well-informed governing body, which listens to the professional views of those responsible for its pupils, is less likely to make mistakes on decisions relating to the curriculum and the morale of the school.

The status quo allows for representation of both teacher and support staff on the governing body. Indeed, it is not long since support staff gained the right to sit on governing bodies. In my personal experience, they make a very important contribution. They have a completely different perspective from that of teachers. Therefore, I believe that it is important to ensure that both those categories of people employed at the school are represented on the governing body.

All members of a school community should be represented on the governing body and be able to contribute to the improvement of their school. However, simply replacing one category of governor with another is not the way to ensure an inclusive and representative body. So, whatever the Government's reasons for the amendments, I believe that it is essential that when changes—in particular, to the curriculum—are proposed the role of both teaching and non-teaching staff is protected.

The Lord Bishop of Blackburn

I rise to speak to Amendments Nos. 99 and 100. However, before I do, I would seek to advise the Minister—but who am Ito do that?—that I do not intend to press these amendments today. There is a real cause for concern about clarity. I did not want to get into the debate about teachers and other members of the staff. It is not so much to do with the English language, but it is to do with common expectation. People expect governors from the staff of the school to include, at least, the teachers, who are absolutely vital to the school and the curriculum and so on. There is also the worthwhile part played by other members of the staff. If there is any doubt about that, we should pause.

I am grateful to the Minister for her willingness to table an amendment in the area of community governors in voluntary aided schools. My amendments seek to preserve in primary legislation, so far as concerns governance, the position of the churches and other voluntary bodies in relation to the schools that they have founded.

I appreciate that the Government have made clear that they want the Bill to concern principle rather than detail, which will follow in regulations. Amendments Nos. 99 and 100 deal with a point of principle. We regard a majority of two foundation governors as a requirement if the religious character—the special character—of the school and its distinctiveness are to be retained. That was set out in the definition of a foundation governor in Section 78(2) of the 1996 Act.

Similarly, in the case of a voluntary controlled school, we seek to ensure that there are at least two foundation governors or such number as constitute a quarter of the governing body.

That in no way undermines what the Government seek to do. It seeks to do no more than continue the principle enshrined in the 1944 and subsequent Education Acts. It also fulfils the commitment given in November 2000 by the then DfEE in its consultation on school governing bodies in paragraph 21. That stated that the new model—that is the size of existing voluntary aided governing bodies—would protect the existing position whereby foundation governors hold a majority of two or three places. It is for that reason that I bring forth these modest amendments which we hope will be seen as a principle and therefore should he on the face of the Bill.

Baroness David

I shall speak to Amendments Nos. 96 and 98, tabled by my noble friend Lord Peston and I. As my noble friend said when moving his first amendment to the Bill, we have no intention of dividing the Committee.

Amendment No. 96 refers to teachers and support staff. I agree with the noble Baroness, Lady Walmsley, about the importance of having support staff on the governing body. The status quo allows for representation of both teachers and support staff. All members of a school community should be represented on the governing body and able to contribute to the improvement of their school. However, simply replacing one category of governor by another is not the way to ensure an inclusive and representative body. To replace a specific category of teacher governor with a generic staff governor would seriously undermine the effectiveness of the school.

There seems to be little rationale to change the constitution of governing bodies as they have only recently—in 2000—been reconstituted. In their consultation document, The Way Forward: A Modernised Framework for School Governance, the Government propose that there should be a single stakeholder group referred to as staff governors. The Explanatory Notes state: The regulations will also establish a single staff governor category to replace separate teacher and non-teacher staff categories and will also establish that within that category one place should be reserved for a teacher". I cannot agree with that.

The National Association of Governors and Managers argues that no stakeholder group should form a majority on the governing body. The National Union of Teachers agrees with that principle and therefore opposes the proposal to form a single governor stakeholder group to represent staff employed at the school. Teachers and other staff groups reflect different perspectives and there should be adequate representation of both of them. The staff and groups of staff are now so many: we have the kitchen staff, dinner ladies, cleaning ladies, lollipop men and women and people who deal with sports grounds. They are innumerable but they should be represented and could make a great contribution to the governing body. I hope that my amendments and those tabled by the noble Baroness, Lady Walmsley, are accepted.

I turn to the question of pupil governors, which is perhaps more controversial. I am clear that we should have pupil governors. I have worked with them, although it is true that that was in a sixth-form college. We had two pupil governors, who were a help to each other—in a big school, that is suitable. Attitudes have changed and the climate is much more friendly to young people in school having a greater voice.

Let us consider the background. In the White Paper, Schools: Achieving Success, the Government state that they will encourage students' active participation in the decisions that affect them, about their learning and more widely". The whole of Chapter 3 of the new SEN code of practice, which has statutory status, is devoted to pupil participation. It states: Pupil participation should be the goal for all children and opportunities for such participation should expand as pupils develop". On average, children spend 12 years in an environment where they have no legal right to be consulted or involved in decisions that affect them—in their own education, the running of their schools or the formation of wider educational policy and practice. A place on the governing body would put that right, increase their experience and make them a little more knowledgeable in the ways of the world. It is widely recognised that listening to and involving children and young people in schools plays a key role in preventing and combating disaffection.

With the introduction of the citizenship and personal, social and health education curricula from September 2002 and the requirement at key stages 3 and 4 to teach children about the, legal and human rights and responsibilities underpinning society", it is inconceivable to deny them the right to participate in school life. Furthermore, participation of pupils in a democratic process—through debate, listening to the opinions of others and taking responsibility for decisions and the resulting consequences—would make a vital contribution to the curriculum, and, indeed to the running of the school, through practical experience. That was recognised by the Advisory Group on Citizenship in 1998.

So what do we know about the Government's intention? In recent months they have suggested that they are prepared to issue non-statutory guidance on pupil participation but have reservations about placing statutory requirements on governing bodies and teachers. The Government should be bolder. They have taken some steps towards pupil representation. They should take that extra step. Let us at least have a pilot scheme for pupil governors, which I hope could be made universal.

Baroness Sharp of Guildford

I shall speak to Amendments Nos. 94 and 97, which concern teacher governors and support staff governors. It is important that both groups are represented on the governing board. It is extraordinary that having only just arrived at that position with the new regulations in 2000, we are now moving away from it. In particular, I should like to endorse the remark of the noble Baroness, Lady David, that there is an increasing number of support staff in schools. There is an increasing number of teaching assistants and we want to expand that number. It is absolutely right and proper that they are represented, but if they are, it is extraordinary to think that teachers should not be represented.

I do not understand why, having finally conceded in the last round that support staff should be represented, the Government are now going back on that—other than because of pressure in the background from head teachers, who have been worried about the number of people represented from schools. I do not understand why the government are caving in to that pressure. Both groups are stakeholders in the schools and it is vital that they are both separately represented.

5 p.m.

Baroness Blatch

I assume that we are discussing Amendments Nos. 93 to 101 and 106. I shall speak to Amendment Nos. 95 and 101. Amendment No. 95 follows the theme of our debate. Reference to teachers is conspicuous by its absence. We can only assume that somewhere in the bowels of the department a view has been taken—supported by Ministers—that it should not prescribe that teachers specifically, necessarily and in their own right should form part of the governing body. We know that it is not just possible but probable that members of staff will include a teacher, but teachers are not specifically mentioned, so the Minister must tell us why the department has chosen not to do so.

If the department believes that the provision should be widened from teachers to include other members of staff, is it entirely happy to accept that any member of staff representing other interests in the school could be chosen, or is it just assuming that one or more would be teachers but wants other sections of the staff to be represented? I do not know; I pose it as a question. It is important that the question is asked specifically.

I have tabled Amendment No. 101 to tease out from the Government the meaning of "other persons". The words, such other persons as may be prescribed". are a catch-all phrase. The Government may think of someone later and are not sure who that may be. I prefer powers of co-option to a governing body. We should specify the categories of people who would belong to it. I have been carefully through the categories. I find it difficult to imagine anyone outside those categories. The catch-all category is paragraph (d) which refers to, persons appointed as community governors". They could be anyone from within the community: the business, commercial, voluntary or charitable sector. That is the catch-all part of the clause. It is difficult, therefore, to envisage why we have the words, such other persons as may be prescribed". I intend to take the provision out of the Bill in order to give the Government the opportunity to state on this part of the clause the composition with regard to categories of people.

I assume from the Bill that the regulations will come forward under the negative resolution procedure. I shall ask the Minister to consider their coming forward under the affirmative resolution procedure. With regard to the regulations governing their operation, I regard composition as more important. Once the composition is established, one should leave the governors to get on with the job of governing the school. Therefore the affirmative resolution procedure seems appropriate.

The debate is somewhat unsatisfactory. We are talking about a disparate aspect. However, there is a common theme running through some of the amendments contained in the second group: the importance of teachers as a specific category. Not only on the face of the Bill but in government amendments to the Bill teachers are conspicuous by their absence.

I return to my original point about Amendments Nos. 93 and 106. I am not sure that the provisions are any clearer than they were in their original form.

Baroness Massey of Darwen

I refer to Clause 18(2)(d) with reference to, the term of office of governors". I understand that a parent can stay on as a governor, even though the child is no longer at the school, but only for a certain period. I believe that a teacher governor has to relinquish that post once he or she leaves the school. Perhaps I may have clarification on that.

Lord Peston

That is an important question which is worth clarifying. Perhaps I may add a few words to my noble friend's remarks on pupils in schools. My daughter was among the first, if not the very first, pupil to be a governor of a school in Haringey. We were very proud and asked, "What was it like'?". She said, "It's a complete waste of time". We inquired why. She said, "The teachers are hopeless"—not surprisingly because that was her view of teachers generally. But in particular the governors were not merely hopeless but ignorant and had no idea about what went on in the school. That shattered me at the time, but it leads me to two views. First, being a governor undoubtedly involves having a great deal to do with the school. It is not something that one puts on a CV and assumes that that is it. Nowadays it involves a great deal of commitment. It requires one to have people who really know about the school.

The group which, overwhelmingly, knows most about the school is the pupils. The idea that such a group should be optional seems absurd. I have never considered that one needed much in the way of formal teacher assessment. One just asks the children who teaches well and who does not, who bunks off and who does not. One needs no investigations. Therefore, I am genuinely surprised that at best pupils are an optional category when it should be compulsory. Equally, although we make the usual remarks in this Chamber about local democracy, the need of the community, and so on—I stand second to none in my support of those views—the fact is that we do not require the kind of people I have met on other bodies who talk a great deal at the relevant governing or other meeting and consider that as their contribution. Anything involving work or involvement is beyond them. Under another heading, we shall come to multiple governors and so on, which makes the matter even worse.

I strongly press my noble friend to face the reality of the school and the importance of governors, realising how important are those we have mentioned, the teaching and non-teaching staff and the pupils. I reiterate my noble friend's question. I am concerned to be assured that "parent governors" means parents of children at the school and that the staff are people on the staff rather than those who may have had some connection at some time.

We shall return to other topics in which we are interested. Amendment No. 106 seems to have nothing to do with what we are talking about. I assume that until we ran into our earlier troubles it was for the convenience of the Minister to group the two amendments together although that made difficulties unknown to any of us. I do not understand Amendment No. 106 and apologise, therefore, to my noble friend. I am sure that it is completely right and deserves all our support.

Lord Dearing

We are having a relaxed discussion and I presume, therefore, to join in, confessing my lack of detailed knowledge. First, perhaps I may say yes to pupil governors. However, before returning to the issue on Report, or whenever, on reflection perhaps we may satisfy ourselves that there are no legal impediments to having a minor as a governor, accepting all the legal responsibilities that go with being a governor. That may need to be thought through.

Secondly, one tends to have in one's mind a typical, fairly large, school. But there are a vast number of tiny primary schools in rural areas. When we think of having perhaps a teacher governor and a non-teacher staff governor, one may have the whole staff of the school on the governing body. We need to think through that angle too.

Baroness Blatch

The noble Lord, Lord Dearing, reminds me of a point relating to another clause. Where a school forms a company, we are putting on the governors a special and different responsibility. When considering the composition of governing bodies, we need to think of them as being members of companies, coming under the full panoply of company law.

Baroness Ashton of Upholland

I say to my noble friend Lord Peston that I, with other noble Lords, pay tribute to the work that governors do. Until last year, I was a chair of governors—perhaps a slightly easier job than I have today. Nonetheless, I thoroughly enjoyed that job and know from that experience over seven years, as do others, how much work governors do on behalf of us all in supporting schools and our children.

I view this debate against that backdrop. We seek to address the point reflected on by the noble Lord, Lord Dearing, about how different schools may be and creating flexibility. I know that noble Lords will regard it in that spirit. These debates are important. The Government's objective is to ensure that we get the matter right.

In reply to my noble friend Lord Peston, the current legislation is framed so that the elected parent governor is a parent with a child at the school. Sometimes such a parent cannot be found so we consider that other categories of people should be included, such as parents of school-aged children. That is quite rare—I have never come across it—but I gather that it happens. Another category is carers of children who may not necessarily be parents.

We want to re-enact the current position so that there is a broader meaning in law. We are doing precisely that in what, clearly, I have not set out well. I hope that clarifies the position. I apologise that we are not where I had hoped we would be, but I shall address the individual amendments. My noble friend Lady Massey is right to say that parent governors serve out their term of office, which is up to four years, and that teacher governors—staff governors—resign on leaving the school.

Baroness Blatch

The noble Baroness quite rightly describes the situation as it is at the moment, and the letter states: When that is not possible, current regulations allow the governing body to appoint a parent of a registered pupil or where that is not possible a parent of a compulsory school age child". That is the current situation. I do not understand what the amendment does to widen that further. In what way does it widen it further.

Secondly, the letter goes on to say, The latter route"— appointing a parent of a school-aged child— is not available to Voluntary Aided schools". In these amendments, what makes it available to voluntary aided schools.

Baroness Ashton of Upholland

The purpose is to put on the face of the Bill the wider definition of "parent" so that in regulation the current position can continue. We approach the matter in that way to ensure that we can continue as we want. We also want to address in regulation the same issue in regard to voluntary aided schools. Up to now they have not had that freedom. By putting that wider definition on the face of the Bill, within regulations we can say that that would be available for all schools.

Of course, wherever possible it is important to recruit parent governors from the parents of the children who attend the school. I believe that the Committee will agree that such a provision should include carers. We have said, in terms of the stakeholder model, that if, at the end of the day, that proves impossible—we know that in some special schools it has proved quite difficult—to have someone who is a parent, and who approaches issues from a parental point of view, would be of use.

Lord Roberts of Conwy

Is the noble Baroness aware that Amendment No. 93, which substitutes, persons elected or appointed as parent governors", for what is currently in the Bill, excludes direct reference to parents of registered pupils at the school". That implies that the Government have changed the balance of the appointment.

Baroness Ashton of Upholland

On the face of the Bill we have "parents of registered pupils". That excludes any other category of parent. We are seeking to achieve the opposite of what the noble Lord suggests. We are widening the definition of "parent" on the face of the Bill so that in regulation we can stipulate that schools should look initially to parents within the school, but if that is not possible—I have described the situation of some special schools—they can look more broadly. That should be allowed to happen for all categories of schools, and it is a power that voluntary aided schools have wanted.

We are not trying to take anything away from parents of children attending the school. Of course, wherever possible they should be the parents involved, but if we were unable to achieve that we feel, as we have for some time, that we should still have a parental viewpoint or a carer's viewpoint. I hope that makes the position clear.

5.15 p.m.

Baroness Blatch

I may have a mental blockage about this. That is the current position so why do we need an amendment? Which statute prevents voluntary aided schools from enjoying that extension? What is there in the extension under the proposed amendment of the noble Baroness that includes voluntary aided schools? They are not named in the amendment at all.

Baroness Ashton of Upholland

I am sure that the noble Baroness does not have a mental blockage. The way in which the Bill has been framed takes away from the current position. That is why we need to amend it. As of today, the position is that if a school is unable to find a parent from within its ranks who is willing to serve, it can look more widely. The way in which we have framed the Bill removes that provision. My amendment puts it hack. Voluntary aided schools have not had that opportunity. By widening the position on the face of the Bill we can, by regulation, allow the voluntary aided schools to have that right.

Lord Peston

Perhaps I can reassure my noble friend that I understand what she is doing. Therefore, I believe she should soldier on as she has taught at least one person, out of all those present, something.

Baroness Ashton of Upholland

Thank you. If I can convince one other person of the point, that proves that I have understood it. I turn to the amendments that are now in this group, and speak, first, to Amendments Nos. 94, 95 and 97.

We have approached this matter through a consultation group called The Way Forward. Represented on that group were all the major stakeholders, including the National Association of Governors and Managers, the National Governors' Council and various other representatives of whom Members of the Committee will be aware. I was fortunate enough to chair the final meeting, having just been appointed. The purpose of the group was to consider some of the issues that governing bodies raised with it. Following those discussions I met with groups of governors around the country in order to test our proposals.

On the single staff stakeholder group, I fully understand why concerns have been raised. We had 4.385 replies to the consultation. The proposal was supported by 77 per cent and, to some extent, the support from head teachers and other staff was 78 per cent.

As the noble Baroness, Lady Walmsley, said, non-teaching staff are very much part of the school team. The amendments before us would alter the balance struck within The Way Forward group. I offer the noble Baroness reassurance by saying that we shall safeguard teacher representation on the governing bodies by making provisions in regulations that prescribe that at least one place on the single staff stakeholder group should be taken by a teacher. If no teacher stands for election, we want to ensure that the position is filled rather than being left unfilled. So a position is held for a teacher within that group on the understanding that if no teacher comes forward, the school should be able to fill the place, if it felt that was appropriate. We agree with those who have argued—a large percentage of those directly affected—for flexibility.

I turn to Amendment No. 96 in the name of my noble friend Lord Peston. The Way Forward group recommended that at least one member of the staff group should be a teacher. We believe that the level of support indicates that that is the right approach. Non-teaching staff make an important contribution. I hope that we shall be able to see that the maximum flexibility being created within the group enables schools to develop the model that suits them. We want to create a flexible model wherever possible to enable schools to develop the size, the type and the style, within the Way Forward group's proposition of the stakeholder model, that has been carefully worked out with them.

Perhaps I may turn to the subject of pupils and Amendment No. 98. I agree with everything that has been said about pupils being at the heart of education. It is important to consider how to involve them. However, over the years, it has become very clear to us that governing bodies have been given increasingly strategic—and, I would say, demanding—responsibilities: they set out the strategic direction of schools; they monitor and evaluate the performance to provide support and challenge the role of the "critical friend"; and secure accountability. So they have a tremendously demanding role to play.

In the light of what has been said about school companies by the noble Baroness, Lady Blatch, and by the noble Lord, Lord Dearing, I believe it would be helpful if I were to say a little about the legal position of governing bodies, because of the implications involved. When we debated school companies, we discussed at great length the issue of the body corporate. However, as those deliberations made clear, the governing body does have a distinct legal identity, which is separate from that of the individual governors who exercise their powers through collective decision making.

Thus a governing body in its own name can enter into contracts, and, depending on the category of school, hire and manage staff, acquire and manage the premises occupied by the school, open a bank account, and hold and manage the school budget. Provided that the governing body acts responsibly and in good faith, individual governors are protected from any personal liability for debts or obligations incurred by the governing body.

A body corporate can sign documents upon which third parties are entitled to rely as evidence of legal commitment. Therefore, it is important that those who deal with a body corporate are confident that it will act in a responsible manner. That depends to a large extent on the quality of the individual people who make the corporate decisions. To protect third parties, legislation that regulates public bodies, charities and companies—all of which are "bodies corporate"—is concerned with who may and who may not participate in corporate decision making through membership of the controlling body.

A lack of legal capacity in corporate decision making is a ground for disqualifying potential members from being members of bodies corporate. That is generally accepted to cover persons under the age of majority; that is to say, 18 years of age. For pupils under 18 to be eligible for governorship would, at best, be inadvisable. However, I believe that pupils' voices should be heard. They can, of course, make a valuable contribution to decision making. Pupils can already attend governing body meetings and committees at the invitation of the governing body. We know that a number of schools do so on a regular basis.

I want to ensure that there are clear mechanisms for taking pupils' views into account. I therefore intend to provide in regulations for governing bodies to be able to appoint pupils to a committee or committees as associate members. The regulations will, of course, be subject to public consultation—

Lord Peston

I am sorry to interrupt my noble friend, but is she saying that those pupils who previously served as school governors were behaving illegally? We are not inventing school governors here. As far as I know, schools have had pupil governors for some time. After all these years, I am a little taken aback to discover that there was a legal side to the matter. I should never have let a child of mine become remotely involved if I thought that there was any legal commitment, because I may well have ended up with a similar problem. This is absolutely news to me. I am not saying that it is incorrect, but perhaps my noble friend could clarify the situation.

Baroness Ashton of Upholland

Those young people who serve as school governors are unable to vote; and, therefore, are not members of the governing body because they have no voting rights.

I am trying to offer an appropriate category for young people, so that we can bring them into the process in a positive way. I strongly emphasise the fact that I want governors to be recognised for the valuable contribution that they make, and for the responsibilities that they carry. It is my view that associate membership is a good way of involving that participation. If people become governors, they should recognise that they are taking on a serious responsibility—I know that governors do—which has some effect in law. I make that distinction in the hope that it will address the issue raised by my noble friend. This amendment would make it compulsory to have pupil governors. I hope that I have persuaded my noble friend that that would not be the right way forward, and that he will agree not to press his amendment.

Perhaps I may move on to Amendment No. 99, tabled in the name of the right reverend Prelate. The guiding principle for foundation and voluntary controlled schools was that up to and including one-quarter of the places will be reserved for foundation or partnership governors. In our policy statement, which has been made available to noble Lords, we set out our commitment to implement the proposals of the Way Forward Group in this respect. I am pleased to have the opportunity to repeat that commitment here in Committee. We shall be implementing the proposals recommended by the Way Forward Group, and supported through consultation.

The provisions of Clause 18 ensure that there will be at least one governor place in each of the categories listed. The right reverend Prelate made clear that the Churches are seeking a minimum representation of two, or one-quarter where this is the greater. We have had discussions with Church representatives on this point, and are exploring how we might go some way towards meeting the point of concern. I am pleased, therefore, to offer a commitment to provide in regulations for a minimum of two foundation or partnership governor places at foundation and voluntary controlled schools.

As our proposals received such widespread support in consultation, I am sure that noble Lords will appreciate that I am keen to ensure that we do not depart significantly from the principles that I previously outlined. I hope that my offer of providing for a minimum representation of two foundation or partnership governor places at foundation schools will be sufficient to meet the primary concern of the right reverend Prelate.

I should also like to draw attention to an additional safeguard for the Churches that applies to voluntary controlled and voluntary aided schools, as well as to foundation schools with foundation governors. At the local level, the LEA will be unable to make an instrument of government detailing governing body membership for any governing body having foundation governors, unless the foundation governors themselves, the trustees, and any diocesan body, are content. Where the parties cannot agree, the disputed instrument will be referred to the Secretary of State for determination. These are existing provisions, which have worked to resolve disputes. We shall carry them forward into the regulations governing the process for making instruments of government. As for voluntary aided schools, I can confirm that the guiding principle for these schools is that foundation governors outnumber the other governors by two.

If we were to define one stakeholder group's membership in the primary legislation, I am sure that the Committee will appreciate that we would undoubtedly receive similar requests from all other stakeholder groups. If we distinguish between the various groups, that would imply differences in parity of esteem.

However, I can confirm that there is no disagreement on the level of foundation governor representation on voluntary aided school governing bodies. The Way Forward Group proposed that foundation governors should outnumber the other governors by two. Responses to the consultation showed that over 90 per cent supported, at least in part, the proposals on representation—there was 88 per cent support from voluntary aided school respondents. I am pleased to have the opportunity to place on the record a specific commitment to provide in regulations for a majority of two for the foundation governors at voluntary aided schools.

I hope, therefore, that the right reverend Prelate the Bishop of Blackburn will appreciate why we are not defining the level of the majority on the face of the Bill, believing, as we do, that that is a matter for regulations. None the less, I listened most carefully to what the right reverend Prelate said. I know that this is an important point for the Churches. I recognise the importance of foundation governors in relation to voluntary aided schools. I trust, therefore, that we can meet the concern of the right reverend Prelate, without changing our general approach in the area.

I am prepared to bring forward on Report a government amendment that would establish the principle of a majority for the foundation governors for voluntary aided schools. I can confirm that we shall provide in regulations for the foundation to have a majority of two. I hope that this approach, which enshrines the principle in primary legislation, will meet the concern of the right reverend Prelate and that he will not seek to press his amendment.

Finally, I turn to Amendment No. 101. When discussing Amendment No. 95, I mentioned that the stakeholder model has been consulted on, and has received widespread support. I should like to reiterate our commitment to that model, and to preserving the balance between the different stakeholders: parents, staff, LEA appointed governors, community governors: and, for voluntary and foundation schools, foundation or partnership governors. The Way Forward Group emphasised the importance of maintaining the commitment to the stakeholder model of school governance.

Clause 18 defines the categories of persons who must be represented on the governing body, and thereby holds true to the principles of safeguarding representation of the key stakeholders. But there is a limited number of other persons whom we want to allow to be included on governing bodies, if governing bodies so choose. These are sponsor governors, and governors nominated by the Education Action Forum, if the school is part of an education action zone. To achieve this we need the provision that is the subject of this amendment; namely, that regulations may provide for governing bodies to consist of, such other persons as may be prescribed", as set out in Clause 18(2)(f).

I hope that I can reassure the noble Baroness, Lady Blatch, by saying that we shall provide in regulations for a maximum of two sponsor governors per governing body. We intend to set a maximum of two, because we are committed to the stakeholder model. We want to ensure that the balance between stakeholders is maintained. However, we believe that it is right to extend the definition of sponsor governor beyond the current definition in Schedule 1 to the Education (School Government)(England) Regulations 1999, which applies only to individuals providing substantial financial assistance or benefits in kind, excluding services, to schools. Naturally, such individuals must declare an interest and withdraw from discussions on any issue relevant to that interest.

We plan to extend the current definition to include other external partners providing advice and support, including the provision of assistance by providing services to the school, as we explained in our recent consultation paper. Those offering support to a school—for example, through partnership working—could make a valuable contribution to the governance of the school, particularly by strengthening governance arrangements if the school is in difficulties. That might include, for example, a successful school, FE college or other body supporting or partnering another school. It is right that there should be scope for the school or body that is providing support to be represented on the governing body. That could be an important way of strengthening weaker governing bodies.

In the interests of parity, it is important to allow anyone providing a school with such potential benefits through a partnership to have an equal right to be represented on the governing body as those providing financial benefits, if they and the governing body of the recipient school so choose. I hope that, with the reassurances that I have given, the noble Baroness, Lady Blatch, will not move the amendment.

5.30 p.m.

Lord Peston

I want to ask my noble friend two questions. She has clarified some things but has left me feeling rather lost on the subject of pupil governors. My understanding of what the Minister said is that no person under the age of 18 can be a pupil governor. That is what she seemed to say. That is news to me, and it would represent a drastic change. That is what puzzles me. I do not need the answer to that question today.

My other question relates to religious schools. Much as I am opposed to religious schools in all forms, I understand that, if we are to have such bodies, the religious sponsors should have a dominant role. It would make no sense otherwise. Subject to my general attitude to such schools, I was glad to hear my noble friend's reply. However, bells started ringing none the less. Can I have an assurance that, in all other schools, none of the interested parties will have a guaranteed majority or be allowed to consider having such a majority? That frightens the life out of me with regard to some of the new forms of school in which the Government have taken an interest. Can I assume that everybody else will be in a definite minority on governing bodies.

Baroness Ashton of Upholland

I thought that I had addressed the point about pupil governors. Pupil governors as currently designated are students who are part of the governing body but do not vote. They are not full members of the governing body. The amendment would have made them full members. I hope that I have elucidated the reasons why that would not be appropriate and why there is the new category of associate members, which gives them status and a role, without their having to carry inappropriate responsibility as members of a governing body.

The noble Lord is right about the other schools. The position is exactly as he described it.

Baroness Blatch

One of the difficulties with this group of amendments is that not only does the Minister move the lead amendment, but she winds up the debate on the group. I am not blaming the Minister; it is a quirk of our procedures. However, it is true.

I am grateful for the detail given by the Minister, and I shall not press Amendment No. 101. On the subject of the responsibilities of governors should their school and/or schools and/or joint working with other companies form companies, the Minister said that, as long as an individual acted responsibly and in good faith, he or she would be protected. That is no different from the position of, for example, trustees of charities.

I had an experience as a trustee of a charity that is seared into my mind. We had decided collectively to sell a piece of land, but that decision was challenged by a group of local people. The only thing that saved us was that we had taken counsel's opinion, for which we paid, before we took the decision. The case went on for five years and came all the way to the House of Lords. It was only at that stage that we were cleared of a debt of about £5 million that had been hanging over each of us. I hope that the Minister and her officials will be mindful of such cases. We acted in good faith, as was ultimately proven. However, if we had not taken counsel's opinion, even if we had made the same decision and acted in the same good faith, we would have lost our homes and all our wherewithal. That is an important point, if we are to make school governors responsible under company law.

Baroness Sharp of Guildford

Can the Minister clarify the position in respect of the new academies? As I understand it, there is a majority of foundation governors in foundation schools. Presumably, that would also apply to the new city academies that are to be established.

The Lord Bishop of Blackburn

I am not sure about the right procedures, but I thank the Minister for her answer and her commitment in making instruments for voluntary-aided schools. It is right that we should continue existing provision. I shall read the Minister's reply carefully; I think that it was in line with what I sought. I will not move my amendment.

Lord Dearing

I shall ask the Minister to clarify one point and apologise for not having followed what she said sufficiently closely.

I am concerned about very small schools with a head teacher, one other teacher and one non-teaching staff member. I am worried that the position of the head teacher would be undermined, if that one teacher and the one non-teaching staff member were on the governing body.

I am sorry. Shall I say it again? I was asking whether there might be a problem with micro-schools.

A Noble Lord


Lord Dearing

No? I shall shut up then.

Baroness Ashton of Upholland

I apologise to the noble Lord for being unable to hear him. I meant no disrespect, and I thank whomever it was who responded to him.

To the noble Baroness, Lady Sharp of Guildford, I say that the position depends on the nature of the academy. We will debate academies later, and I shall set out the model clearly for her then.

Baroness Sharp of Guildford

Am I right in thinking that foundation schools have a majority of foundation governors.

Baroness Ashton of Upholland

No—yes. I apologise for that. I shall now give the noble Baroness the correct answer: they are not in a majority. That is where I began my answer.

On Question, amendment agreed to.

Baroness Walmsley

had given notice of her intention to move Amendment No. 94: Page 12, line 1, after "work" insert "as teachers The noble Baroness said: With reference to the Minister's comments on Amendment No. 94, can I ask whether she thinks it odd that teacher governors should not be mentioned in the Bill, given the Government's determination to raise the morale of the teaching profession? I also understand that the Way Forward group had no teacher representatives.

Baroness Blatch

When speaking to these two (now composite) groups of amendments, the Minister named all the groups that were in favour. The NAHT, the NAS/UWT and the NUT, which represent a large proportion of teachers, do not support the leaving out of teachers. They support the demarcation and inclusion of teaching and non-teaching staff, but they include them as separate entities on the list. They also are not mentioned.

The Deputy Chairman of Committees (Lord Elton)

The words to which Amendment No. 94 is addressed have been withdrawn by the amendment to which the Committee has already agreed. The amendment has, therefore, been pre-empted, and I should not have allowed it to be moved. In any case, it was in a group that had been spoken to.

[Amendment No. 94 not moved.]

The Deputy Chairman of Committees

Amendment No. 95 is also subject to pre-emption.

[Amendment No. 95 not moved.]

[Amendments Nos. 96 to 101 not moved.]

Baroness Sharp of Guildford

moved Amendment No. 102: Page 12, line 8, leave out "may" and insert "shall The noble Baroness said: I rise to move Amendment No. 102 and to speak at the same time to Amendments Nos. 105, 108 and 109. The amendments address some of the issues that we have already discussed, but they also seek to question some of the central tenets of the new school governing arrangements being proposed in the aftermath of the consultations on The Way Forward which took place last year.

The question which the Committee has to address is whether we need any new regulations governing the management of maintained schools. As has already been said, the last set of regulations came into force only two years ago. Discussions I have held with a wide range of organisations indicate a broad agreement that those regulations—the current regulations, which were finalised after a long period of trial and error—are about right. That process took a long time, developing gradually through a series of education Acts from the time of the Taylor report, published in the 1970s, onwards in which the role of governors was honed. As a result, many feel that we have now got things about right. Why then is there a need for change.

It appears that the pressure for change came from two sources. First, from quite a number of head teachers who were rightly concerned at the burdens being shouldered by governors, and, given the responsibilities borne by governors, were also concerned at the difficulty of recruiting people to fill those positions. Secondly, from the Government themselves who, as always, are wedded to the notion of modernisation and change. They believe that all innovation is good and that shaking up established institutions is worthwhile. However, in that process of shaking up, sometimes the Government forget that such continuous change can in fact destabilise institutions.

Be that as it may, the result of all that was the establishment two years ago of the Way Forward Group to discuss the future of school governance. That group met only four times. It had representatives of head teachers, governors, the Churches and, from local government, those who train governors. However, it did not include any representatives of teachers or parents. I understand that, far from finding the way forward, the group actually rather lost its way and drifted into a fog. Nevertheless, as the Minister has already indicated, the outcome was the publication of a consultation paper, The Way Forward—A Modernised Framework for School Governance.

As we all know, it is easy to run a consultation when one starts from a certain set of premises and then asks which, from a series of changes that are going to be made, would the consultees prefer. That, essentially, was the way in which the consultation took place. As a result, I believe that it was a somewhat flawed exercise. The outcome was agreement to the proposals put before the Committee today.

One of the main findings of the Way Forward Group was that there should be much greater flexibility and that schools should be able to vary the rules of governance from one school to another. Do we really need to do that? Amendments Nos. 102 and 109 are technical amendments which change the "may's" to "shall's" in Clauses 18(3) and 20(3). This approach would have the effect of requiring the Secretary of State to lay down national rules and structures for governing bodies. I agree that it may seem a little odd for noble Lords on these Benches to argue for more centralisation rather than less, although in this case there has been centralisation.

What is being proposed is to give schools greater discretion on matters such as the size of the governing body, who would be eligible to serve on it, what would constitute a forum, what sub-committees should be set up and so forth, along with addressing the standing orders framework required of governing bodies. From these Benches we would argue that it is more suitable for such matters to be laid down centrally rather than that they should vary from school to school.

I seek that position for a number of reasons. First, writing the rules is a time-consuming function to which the clerk for the head teacher would have to give a great deal of time and attention. Secondly, it would put too much power into the hands of the head teacher to restrict, for example, the number of staff governors or to marginalise their rules through the rules governing working together. The influence of head teachers on revision of the rules, such as restricting the role of support staff appointments, could also be rather too strong. Thirdly, national rules confer prestige and weight to a governing body. Being a school governor is a responsible position and is acknowledged as such by its national identity and framework—just as the magistracy, too, has a national identity. It is another volunteer body, but through its national framework it acquires a national identity.

I think that it is unsatisfactory for boards to determine their own size and composition within a set of general principles. For example, there is no requirement for non-teaching staff to be represented, even though we have already debated the fact that that requirement was finally included on the statute book only two years ago. Similarly, a minimum teacher representation of one person regardless of the size of the school is something that we feel is desirable. In larger schools it is important for there to be at least two teacher representatives. Indeed, all these reforms to governing bodies will put power into the hands of head teachers at the expense of parents, teachers and the community as a whole.

Because it has been only two years since the last set of reforms, which in general were welcomed and did introduce long-needed changes such as a role for support staff on the governing body, I do not understand why the Government propose to turn everything upside-down again.

Amendments Nos. 105 and 108 refer respectively to subsection (7) in Clause 18 and subsection (4) in Clause 19. Both foresee the possibility of federations of schools being formed under one governing board. Those of us who remember the pre-Taylor days in the 1960s, when 10 or even 20 schools were often grouped under one governing board, know what a difference individual governing boards have made to the ethos and morale in schools. Quite frankly, we do not want to go back to those days. The clauses in question are Clauses 23 and 24. I shall return to those when we consider whether they should stand part of the Bill.

I should like Members of the Committee to bear in mind that the pre-Taylor days were not good days in terms of school governance. We have moved a long way from that position. Where we have discovered good methods, then we should now stick with them. Stirring everything up and introducing changes is not always the right way forward, modernisation or no modernisation.

For the moment, I go back to Amendment No. 102 and the need for there to be national rules and national structures for governing boards. I beg to move.

5.45 p.m.

Baroness Blatch

I feel that we might be talking at odds on these amendments. I certainly agree with the fundamental question put by the noble Baroness: why do we need to make changes? It appears that some pretty good arrangements are already in place. However, I am worried about the arrangements being controlled entirely from the centre. Flexibility at the local level is quite important and schools should be free to determine how they are going to operate, but within the framework of the law.

Turning to federations, my own view on including the clauses on federations rather than removing them, as the noble Baroness seeks to do, is that I, too, have grave reservations about the overall proposal for federations, which we shall come to later. However, if they are to be set up, then there have to be certain rules setting out how they are to be governed. It would be quite wrong to leave the proposal for federations on the face of the Bill without the Government setting out some view of how such schools are to be represented and how the different interests in particular schools would be protected. Those interests may be ones covering special needs, specialist matters or protecting the interests of professional versus non-professional staff. Whatever might be the interests, there will need to be some regulation.

For that reason, I would not be able to argue against the inclusion of subsection (7) in Clause 18 and subsection (4) in Clause 19. They should stand part of the Bill if the Government succeed in establishing federations of schools as a possible way forward.

Baroness Ashton of Upholland

I turn first to Amendment No. 102. I agree with the noble Baronesses, Lady Sharp and Lady Blatch, that there is a need for an appropriate level of prescription on the constitution and procedures of governing bodies to ensure that the necessary safeguards are in place.

It is our current intention to make regulations covering the specific items listed in Clause 18(3). We have set out our intention in our policy statement which has been available to the House. The point about "may" is that there may come a time when such regulations are not needed. Making unnecessary regulations would impede governing bodies' ability to choose and adopt arrangements that best suit their particular circumstances and it would thereby risk making governing bodies less effective.

For example, within the clause, paragraph (1) provides for, other matters relating to the constitution or procedure of governing bodies". Paragraph (j) refers to, the appointment of persons other than governors to serve on committees of governing bodies". Subject to consultation, those paragraphs may not require regulations under the proposed new arrangements. It may be more appropriate and helpful to governing bodies to cover those areas in guidance rather than in regulations.

I turn to Amendments Nos. 105 and 108. We shall debate the whole concept of "federation" and I look forward to doing so. However, the purpose behind it is to enable schools to collaborate strategically.

Amendment No. 105 would mean that each individual school which chose to federate would have to retain its own individual governing body. That in turn would mean that the governing body of the federation would effectively be an overarching structure that would sit above each school's individual governing body. It seems to me that this amendment would result in the worst of both worlds. The existence of a supra-governing body for the federation of schools would undermine the role of the individual governing bodies while adding greatly to the workload and bureaucracy.

I do not consider that that would be a way forward. It is our intention—we shall debate the matter at length—that when a school chooses to federate, it will come under the auspices of a single governing body for the whole federation in order to minimise bureaucracy and retain and increase accountability.

As regards Amendment No. 108, perhaps I may make it clear that when schools decide to federate under a single governing body, it is our intention that the governing bodies will make a request to the LEA to draw up an instrument of government for the federation. As Members of the Committee will be aware, the instrument of government for a school is an important document that sets out the constitution.

In our view, drawing up an instrument of government is the only sensible mechanism through which to make a change to the constitution of the governing body. I emphasise that the federation approach is not about the merger of two or more schools into one. Indeed, within the federation each school will retain its character and structural arrangements.

As regards Amendment No. 109, perhaps I may reassure Members of the Committee that it is indeed our intention to make regulations setting out the terms of reference for the governing bodies of maintained schools; to define the respective roles and responsibilities of the LEA, the governing body and the head teacher in the conduct of the school; and to confer functions on governing bodies and head teachers.

We intend to build on the existing regulations to include one important additional element. Schools have greater autonomy than ever before, but there are a number of areas where the local education authority does have a role and responsibility in the conduct of individual schools; for example, in offering advice on head teacher appointments to community and voluntary-controlled school governing bodies, or taking direct responsibility where the delegated budget has been suspended.

The role of the LEA in school education has been fully described in the revised code of practice on LEA school relations, issued last year. It is not our intention to amend in any way LEA roles or responsibilities, but rather to ensure that governing bodies are fully aware of the issues.

I hope I have reassured the noble Baroness that we intend to regulate on all the areas provided for. The use of the permissive "may" is not intended to water down that commitment, but rather to recognise in legal drafting terms that there is no over-riding requirement to have such regulations in existence in order for governing bodies, head teachers and LEAs to conduct their statutory responsibilities. As time progresses, it may be that in certain areas we would want to rely more on guidance than regulations, but for the present time I can assure Members of the Committee that we fully intend to regulate in this area and that the existing regulations will remain in force until we have done so.

I hope that in the light of those assurances the noble Baroness will feel able to withdraw her amendment.

Lord Peston

We appear to be having the debate under a misconception. I have previously enunciated to Members of the Committee the golden rule of opposition. It is that every time the word "may" appears it is the duty of the Opposition to substitute -shall" and that every time the word "shall" appears it is the duty of the Opposition to substitute "may". I did that for many years when I was desperately trying to make a contribution to a Bill I did not understand.

It is inconceivable that we could have governing bodies if they did not have regulations. Therefore, I do not see what the debate is all about. Clearly there will be regulations and I do not know why we are debating that. As the noble Baroness, Lady Blatch, pointed out, we shall need to debate the regulations when they are published. However, I say to my old friend the noble Baroness, Lady Sharp, that I do not see why we have spent so much time debating the issue. Can she give me an example of how this world can proceed with no regulations? We would have no governing bodies.

Baroness Sharp of Guildford

In response to the noble Lord, Lord Peston, I was on this occasion changing "may" to "shall", thereby obeying the particular rule that he laid down! Part of the idea of the reorganisation of governing bodies is to move to a situation in which there is variable geometry and where governing bodies can vary. The proposed draft regulations indicate that there can be considerable variation but there are problems with that. Problems arise when we do not have national rules about what shall constitute quorums and instruments of government. That is the issue about which I was concerned.

I thank the Minister for her reply. I am somewhat reassured by it because she appears to have in mind some of the issues about which I was concerned. I am most reassured by what she has said about federations. If she is right that they are largely a strategic function, it is all the more important that schools should be able to preserve their own individual boards. They may come together for particular issues, but there is a considerable difference when schools have their own boards of governors. We shall debate that matter when we discuss federations but, meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch

moved Amendment No. 102A: Page 12, line 18, leave out paragraph (h). The noble Baroness said: In rising to move Amendment No. 102A, I shall speak also to Amendment No. 102B. I hope that the noble Lord, Lord Peston, will not feel that I ought to be rebuked for delving yet again into the shape of the regulations.

I do not argue that there should be no regulations. There are many issues for governors and the governing body which need the protection of a framework within which to work. However, I question whether there need to be regulations relating to how governors elect their chairman or vice-chairman. I am delighted to see the word "chairman" on the face of the Bill, but the way in which he or she is elected should be a matter for the governing body. I am happy for the regulations to state that there shall be a chairman and a vice-chairman, but I do not believe that the method of their election should be covered by regulations.

I turn to Clause 18(3)(i). Having served on governing bodies—and on more than one at any given time—I know that some will have a finance and general purposes committee, some will have an administration sub-committee and others will have other forms of committees. Governing bodies do not all have the same types of committees. They will meet their legal obligations, whatever they may be, but in their own way. In the spirit of genuinely devolving some flexibility to the governing bodies, at least paragraphs (h) and (i) should be removed from the list. I could argue that one or two others are suspect, but for the moment I believe that paragraphs (h) and (i) are otiose. I beg to move.

6 p.m.

Baroness Ashton of Upholland

I am intrigued to know what the noble Baroness thought would be there if the word "chairman" was not there. I presume it would be "chairperson" or some such other term.

Baroness Blatch

When Cambridgeshire ceased to be a Conservative controlled authority when I was the leader, the following morning I went to meet the leaders of the other two parties. I found that we had gone from being "chair" to being "spoke". For a while I was called "Madam spoke" but for much of the time we were just called "spokes". I was described as an "equal member of an egalitarian triumvirate" at the time. It was absolute nonsense. I like to be called "chairman" or "Madam chairman", but I do not like to be called "chair", "spoke" or any other such word.

Baroness Ashton of Upholland

My noble friend Lord McIntosh says "triumvirate" is sexist too. I am perfectly happy with the word "chairman". When I have been in the position of a chairman, that is what I have been called. I thank the noble Baroness for her explanation.

I hope I have made clear that we have a commitment to deregulating governance legislation where it is possible and appropriate. But we want to ensure a balance between safeguards and flexibility, and while I can confirm that we will consider carefully what level of detail the regulations should contain I do not want to give the impression that we would wish to deregulate this area completely.

The positions of chair and vice-chair are crucial to the performance of a governing body. They ensure the good conduct of meetings, that the meeting does its business well and that responsibilities are carried out. Certainly, having performed that function myself, I am well aware that chairmen of governing bodies spend a great deal of their time working closely with head teachers and with staff. They are, if you like, the first port of call for issues involving governing bodies. Their role is crucial.

When governing bodies are looking to the "centre", if I may describe it as such, to support them, they want to know how to do certain things. It is not natural for everyone to be able to design and devise their own way of doing things. As we encourage more people to become involved in governing bodies, we do want flexibility, but we also need to lay the ground rules that will help them in their task.

I appreciate that the provisions which at present require the clerk to seek nominations in advance from individuals and to list those names on the agenda for the meeting, and so on, were brought in to bring more openness and transparency into the procedure. However, I am prepared to reflect on the points that the noble Baroness has made and take them into account in revising the regulations. But if we deregulate in this area, each governing body could then determine how to elect its own chair. There would be a lack of consistency and I am not sure that there would be a clear safeguard to ensure a fair process. It is possible that chairs could be appointed without election.

We want to do as much as we can to remove burdens. I hope that I can reassure the noble Baroness by saying that we will include only the minimum provision necessary in regulation to safeguard a transparent and fair election process for chairs and vice-chairs.

As to Amendment No. 102B, my concern is about accountability, which is a key function of a governing body. There may be scope to deregulate some of the current provisions that apply to the establishment of committees—I hope I can reassure the noble Baroness by saying that we will consider this carefully—but a certain level of prescription is needed to clarify and safeguard accountability lines. For instance, if a governing body gives delegated authority to a committee, then the committee is accountable for the decisions it takes. It is therefore important to prescribe that the majority of members on that committee must be governors, as opposed to associate members who can be appointed to committees but are not governors, as I described earlier in relation to pupils.

Governing body committees also deal with a number of statutory duties, such as staff discipline and, in some cases, admissions. Here again it is important to safeguard transparency and fairness by making some provision as to the membership of these committees.

With the commitment that we will deregulate the provisions on elections of chairs and vice-chairs and the establishment of committees, where possible, within the safeguards that I have indicated, I hope that the noble Baroness, Lady Blatch, will feel able to withdraw her amendments.

Lord Peston

Before the noble Baroness, Lady Blatch, responds, perhaps my noble friend will be able to clarify one issue. My noble friend said that she will reflect on what has been said on this matter. Can she tell me, either now or later, if we do not make provision for these matters by regulation, are we certain legally that the governing body could do these things? Perhaps I may make a not perfect analogy. After your Lordships had set up my economic affairs Committee I discovered that you had not set it up with any powers to establish sub-committees. When I suddenly announced that we were going to establish a subcommittee I was told, "No, you can't, because no one has given you that power".

If my noble friend were to leave some of these matters out of regulations, can we be sure that the governing body would be allowed to do them? I do not need an answer now. I would like the same answer my noble friend gave earlier, that she will reflect on these matters before coming to a final conclusion on the regulations.

Baroness Ashton of Upholland

I hope that I have indicated that we do wish to reflect. As I said, it is a question of achieving a balance between ensuring that we have consistency and fairness and, in terms of responsibility, that the governing body is given support and regulation to ensure that it operates effectively, while at the same time recognising that some of the ways in which we have tied up our governing bodies in procedural terms could be altered and changed. As I said, I shall reflect on all of those issues and come back to the Committee on them.

Baroness Blatch

I am grateful to the Minister for saying that she will reflect on the amendments. However, whatever happened to "trust the people"? If one looks at the regulations which I have not sought to remove from the Bill, such as, the number of governors, or of governors falling within any category, the person or persons by whom, and the manner in which, governors are to be elected or appointed, eligibility for election… the term of office of governors, resignation or removal from office of governors"— I shall not read them all out but they are pretty considerable—anyone who gets through those rules that far is capable of being either a chairman or vice-chairman of a governing body. Certainly they would be a group of people capable of forming committees and sub-committees and running them because they would have to meet their legal obligations under the Bill anyway.

In answer to the point made by the noble Lord, Lord Peston, I thought that the basis of law in this country was that you could do anything as long as there was not a bar in law to prevent you from doing it. So, for example, if paragraph (i) was removed from the Rill, it would not mean that no governing body could form sub-committees in order to carry out their work.

Lord Peston

We do not live in a society where you can do anything you like. We live in a society where all kinds of bodies, public and private, are subject to laws which empower them to do certain things corresponding to what they were set up for and which prevent them from doing other things. It may well be that the law exists to enable the governing bodies to do all the things that the noble Baroness wants them to do. I was simply inquiring whether that was actually the case. My experience when serving on a body is that when dealing with matters which look reasonable to you and which you feel you should be able to do, you often discover that you have not got the powers to deal with them, even though you thought you did I am merely asking my noble friend, who has promised to do exactly what the noble Baroness wants—that is, to look at this issue—to bear that in mind. It seems a perfectly reasonable thing to ask and I am delighted with her reply that she will look at these matters. I do not wish to rebuke the noble Baroness, Lady Blatch, but I do not know why she is persisting with her remarks on this issue.

Baroness Blatch

It is because I believe implicitly that the governing bodies will get on with it and do an extremely good job. There is no evidence anywhere that there has been an abuse of this procedure. I was told a long time ago that rules and regulations are only there as a guide for when things go wrong. I was always told that a body which worries about its rules and regulations is usually a body failing. By and large, governing bodies do the right thing in the interests of their schools, their children and their parents. I trust them to do that.

I certainly trust them to appoint from within their number a chairman or vice-chairman. In answer to my question about that, the noble Baroness said that it is possible that a chairman could be appointed without an election. The governing body would have to guide that. If someone put their hand up and said "I would like to be chairman", and the governing body were happy with that and everyone said "Fine", that would be an endorsement by the governing body and perfectly all right. It does not usually happen like that. There is usually more than one person who wants to be the chairman, although in other governing bodies and in some parts of the country, getting someone to be a governor, let alone to be the chairman of governors, is quite difficult.

I want to go down the road of trusting the people. I hope that the noble Baroness will come forward with an amendment to satisfy me in that regard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102B not moved.]

Baroness Walmsley

moved Amendment No. 103: Page 12, line 25, at end insert— provided however that such regulations may not make different provision for different governors, nor for different categories of governors, save as may be necessary to give effect to requirements for the election of governors in certain categories The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 104.

This is a probing amendment. It seeks to ensure that all the various categories of governors are governed by the same or similar regulations. As my noble friend Lady Sharp of Guildford said earlier, the Government last changed the constitution of governing bodies only just over two years ago. The vast majority of head teachers, governors and teachers believe that there is completely and utterly no need to make further changes to the constitution of governing bodies at this stage. The status quo has evolved and is deemed by most to be satisfactory.

Therefore, will the Minister clarify the issue of teachers standing to be parent governors in their own school? Currently, a teacher with a child in the same school as the one in which he or she teaches is able to stand either as a parent governor or as a teacher governor.

The DfES consultation document, The Way Forward, proposed to prevent teachers who have a child in the same school from standing as parent governors. Yet the Bill makes no reference to that. What are the Government's intentions on the issue? Although I can see the potential difficulties and conflicts of interest that may be seen to arise in such cases, the Government must be able to trust all governors and governing bodies to function professionally and in the best interests of the school as a whole.

Therefore, it seems counter-productive to set up unnecessary barriers to teacher-parents when it is difficult enough to recruit and retain parent governors, as in the cases referred to earlier by the Minister in which the parents of children who are not at the school sometimes have to be recruited. What impact does the Minister think these proposals will have on the recruitment and retention of governors.

Amendment No. 104 seeks to prevent a reduction in the number of teaching and support staff governors on school governing bodies within the stakeholder group, unless the teaching and support staff governors have conducted the necessary ballot to approve the reduction. The amendment would mean that no change could be made to the status quo regarding the constitution of existing governing bodies without the agreement of the majority of teaching and non-teaching staff in schools.

It is important to note that the status quo allows for representation of both teachers and support staff on the governing body—which is clearly welcome, not only to Members of the Committee, given the debate earlier, but to all the governing bodies I know. My noble friend Lady Sharp reminded us that the number of teaching assistants in schools is set to rise; therefore, it is vitally important that they, too, have the opportunity to serve on the governing body. I beg to move.

Baroness Massey of Darwen

I again seek clarification on an issue raised by the noble Baroness, Lady Walmsley. It is my impression that a person who teaches in a certain local education authority cannot be a governor in a school under that authority unless the person is elected to be a teacher governor in his or her own school.

Baroness Walmsley

Frankly, I am not sure whether that is correct. I understood that the person could be either a teacher governor or a parent governor. Perhaps we could be advised by the Minister.

6.15 p.m.

Baroness Ashton of Upholland

I am happy to deal with the matter of teacher and parent governors, although it does not follow directly from the amendment. The amendment, as I understand it, seeks to ensure an equal voice on the governing body in terms of stakeholders. Perhaps I may address that specific matter and then turn to the points raised by the noble Baroness, Lady Walmsley.

Our stakeholder model was the subject of full discussion and negotiation. Although I appreciate the comments that have been made about history and background, we were very clear that we needed to arrive at a point where the model made the best sense for all the stakeholders. Within that model, we do not have complete parity between the different groups. It is, for example, our view that parents and staff should represent a third of the governing body, and so on. We can discuss the stakeholder model at another time. The consequence of the amendment as drafted would be parity—which would, of course, include the sponsor governors to whom I referred, who would be additional governors. It is a consequence that we do not want.

To take the specific issue of staff and parent governors, in deliberations on The Way Forward and in all the discussions that I have had with governing bodies around the country, we discussed the matter at length and put our proposals forward to hear different views.

All staff will be able to put themselves forward. So those parents who are also teachers or lunch-time supervisors, or are connected with a school in any other way, will be able to put themselves forward to be elected by their peers as staff governors. We believe that that is the best way to ensure that those people who have a relationship with a school are defined in one category or another.

The current position is that staff cannot be co-opted as governors in the schools where they are employed. We are simply extending that principle to say that, in the case of a staff member, that is his or her primary role within the school and that is the group to which he or she should be elected to the governing body. In the case of parents, it is people who are not connected with a school in terms of drawing a salary or having some kind of contract with the school. That is the principle. We are defining parents in that way and saying that, while we very much welcome people who are parents and who are involved in the school as teachers or other staff, they should stand in the category of staff governors. I hope that that makes our position as clear as possible.

Turning to Amendment No. 104, we have attempted to get the maximum amount of support for our proposals. I am pleased with the level of support that we have received for this model. It is designed to give increasing flexibility and to recognise that schools are different and have different needs. We believe that governing bodies are best placed to decide what works for them, taking account of local and specific circumstances. That is partly in response to what I believe the noble Baroness, Lady Blatch, is partly looking for from us.

The approach that we are advocating is about giving governing bodies a choice while ensuring that the balance between the different stakeholders is maintained. But in that context I do not believe that it is right to say that there can be a veto in terms of allowing certain groups of stakeholders to say that they will not accept it. For example, a governing body might decide that it wished to change its size. It would then have to hold ballots—which we believe would be a serious disincentive. Nor do I think it right to allow schools to retain separate categories—for example, staff and teachers—and the option to retain existing numbers. What we are attempting to do is to set out guiding principles, the model around which schools are able to determine what they want to do.

That is our position. I recognise that this change has come at the end of other changes. However, we have committed ourselves to giving governing bodies three years to adopt a new constitutional model. We shall not move on these matters until 2006, so they will have the time for that. It is important also to emphasise that existing governors will be able to serve out their term, but we shall ask governing bodies to move by that date to the new stakeholder model with the flexibilities it entails. I hope that with those reassurances the noble Baroness will feel able to withdraw her amendment.

Baroness Blatch

Perhaps I may put a question to the Minister about community governors. In the policy document, the noble Baroness reminds us that the School Standards and Framework Act refers to the community governor as the person who is appointed a member of the school's governing body by being co-opted by governors who have not themselves been so appointed. As I understand it, the regulations will extend that, and it is not made clear in which way.

It is my understanding that a teacher in the community—who may not necessarily be a teacher at that particular school—up until we left office was available for co-option or even for election as a governor at the school. I am not sure how the present definition in paragraph 1 of Schedule 9 in the School Standards and Framework Act is to be re-written in the regulations, and in what way they will be extended to include wider interests.

As to the draft regulations, it would be enormously helpful to all sides if we could have sight of those before we reach the next stage of the Bill.

Baroness Ashton of Upholland

I am certainly happy to take away the noble Baroness's request to look at draft regulations. The position of a teacher who does not teach at the school and who might be co-opted through the community route is as it was. As a co-optee, that would be perfectly appropriate. The purpose of extending and looking at the community group is specifically to see whether we can widen out within that co-opted group. For example, if the school has a number of looked-after children, one of the cooptees might be someone from social services who has particular expertise in that area. A school might look to co-opt around particular groups of children people who have expertise in special educational needs, and so on. We want to enable schools to think creatively about who can bring additional support and interests to the school. Another example might be someone with a particular interest in a curriculum subject. We are trying to broaden things out in that way. I shall take the noble Baroness's request on board and I repeat again that teachers at other schools can be community governors.

Baroness Walmsley

I think that the amendments have served their purpose in clarifying the Government's position. As I understand it, under the regulations a teacher with a child at a school will be able to serve on the governing body only as a teacher and not as a parent. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 104 and 105 not moved.]

Clause 18, as amended, agreed to.

Schedule 1 [Incorporation and powers of governing body]:

Baroness Ashton of Upholland

moved Amendment No. 106: Page 129, line 18, leave out "and" and insert "or On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Clause 19 [Instrutnents of government]:

Baroness Sharp of Guildford

moved Amendment No. 107: Page 12, line 43, leave out subsections (2) and (3) and insert— ( ) The local education authority shall make the instruments of government for all its maintained schools and shall determine matters to be dealt with in such instruments, the form of such instruments, and the review and variation of such instruments. The noble Baroness said: The amendment would re-establish a principle currently in primary legislation. Every school has an instrument of government controlling who is a member of the governing board. Since the Education Act 1980, these have been made by the local education authority. Before that, the LEA made the instrument for county schools and the DES for voluntary schools.

The current law requires that the local education authority makes the instruments of government for each school. The Bill will make subject to regulations the body that will approve the instrument. It does not say that the LEA will do it, although until now the LEA has been written into primary legislation as the body that shall do that. There is no suggestion that the regulations are not going to designate the local education authority as the body to do it. It is the obvious body to do so. It has local knowledge of the schools and it has the authority to do it. Moving the principle that the LEA should make the instrument of government out of primary legislation and into secondary legislation seems pretty pointless. It has the opposite effect to the Government's desire to deregulate and creates more bureaucracy. Why is it necessary to make the change? I beg to move.

Baroness Ashton of Upholland

We propose that the procedures will be largely a continuation of the existing arrangements in Schedule 12 to the School Standards and Framework Act 1998. I assure the noble Baroness that local education authorities will continue to he responsible for making instruments of government for all maintained schools and that the requirements for consulting interested parties will not be changed. Those assurances are contained in section 4.2 on page 18 of the policy statement that has been put in the Library.

We believe that it is necessary that regulations are provided in this way. Noble Lords will be aware that existing legislation obliges LEAs to ensure that all maintained schools have an instrument, but allows the governing body to prepare and submit a draft instrument to the LEA for authorisation. The governing body of any school with foundation governors is required to submit a draft to other relevant parties, such as those who appoint foundation governors, the trustees and the diocesan authority.

The existing arrangements are consistent with the flexible approach of the new stakeholder framework and are therefore being carried forward. They reflect the spirit of the new framework, which allows governing bodies to choose their membership in response to the particular needs and circumstances of the schools. We believe that they are therefore best put in regulations. With that explanation, I hope that the noble Baroness will agree to withdraw the amendment.

Baroness Sharp of Guildford

I seek a little clarification from the Minister. Am I right in thinking that the change that she is proposing is that schools should be able to make their own instruments of government, which would be vetted by local education authorities to make sure that they met the required principle? Whereas primary legislation currently puts responsibility for making the instruments of government into the hands of the local education authority, that responsibility can now shift to the schools.

Baroness Ashton of Upholland

Existing legislation allows that schools can draft their own instrument and submit it to the LEA for authorisation. We are putting the issue in regulations because we think that that is a simpler way. That does not change the substance. We think that it contributes to simplifying education legislation and adds no extra bureaucracy. There will be a partnership between schools and local education authorities in the drawing up of the instrument, but the responsibility is firmly with the local education authority.

Baroness Sharp of Guildford

I thank the Minister for that reply. There seems little need to change current legislation, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 108 not moved.]

Clause 19 agreed to.

Clause 20 [General responsibility fir conduct of school]:

[Amendment No. 109 not moved.]

Clause 20 agreed to.

Clause 21 agreed to.

Clause 22 [Clerk to the governing body]:

Baroness Blatch

moved Amendment No. 110: Page 14, line 6, at end insert "provided that, for a foundation or voluntary aided school, the body shall be the governing body The noble Baroness said: I echo the comments of the noble Baroness, Lady Sharp. We seem to have pages and pages of changes, but we have to ask what they are improving, what they are changing and what is their purpose. A great deal of time could be saved, as could a great deal of anxiety on the part of schools. When we pass a new Act of Parliament, schools start to worry about what new things they have to do. In an attempt to be helpful, the Minister constantly tells us that the proposals are no different from what schools are doing at the moment, so they need not worry and there will be no extra burdens. The underlying question is: why change.

I shall speak to Amendments Nos. 110 and 111 and argue that the clause should not stand part of the Bill. Paragraph (b) says that regulations shall cover, prescribing the body by whom any such appointment is to be made and any restrictions or other requirements relating to any such appointment". In foundation and voluntary aided schools, that should be a matter for the governing body. Paragraph (c) refers to, the dismissal of any such clerk and the procedure to be followed in connection with his dismissal". For a foundation or voluntary aided school, the decision to dismiss a clerk should be taken by the governing body.

One of the reasons why the body that represented grant maintained schools went along with the proposals to give them the option to become community schools or foundation schools was the promise that they would continue to enjoy a great deal of autonomy on how they ran their affairs. It is important to continue to honour that pledge. The governing body should be given responsibility in such cases.

I then argue against myself and ask why we should have regulations at all. Let the governing bodies get on with what they do well. This is an area that does not require regulating; that there should be a clerk to the governing body is sufficient. How it appoints the clerk or how he or she operates as a clerk to the governing body and whether he or she does his job well, badly or indifferently should be a matter for the governing body. Whether a clerk should be dismissed should also be a matter for the governing body. I hope that the noble Baroness will be sympathetic to that argument. I beg to move.

6.30 p.m.

The Lord Bishop of Blackburn

I feel that I ought to be grateful to the noble Baroness, Lady Blatch, for raising this matter and, indeed, I am. However, I am in some difficulty because it is not clear to me who is the prescribed body for other schools. It seems to me to make perfect common sense, given that voluntary-aided schools and foundation schools appoint head teachers and so on, that this small task should be given to them. However, I should have thought that all governing bodies would he perfectly capable of handling that task and would not need some other body to do it. As I do not have the regulations, I have tried to study the Explanatory Notes but they do not help me in this regard. Therefore, I should be grateful for some clarification on the matter. I hope that we shall receive some elucidation on who appoints clerks to all schools.

Lord Peston

I, too, wish to ask a question or two for elucidation. I take it that we are still discussing maintained schools here and not any other schools. I am intrigued that the Bill uses the words "appointment" and "dismissal" with regard to clerks. However, it does not use the word "employment" with regard to clerks. Therefore, I ask whether there is some special significance in the word "appointment"? I would normally assume that whoever employs a person has the right to dismiss him or her. However, is a clerk in some relevant legal sense not employed but appointed? If "appointment" here simply refers to the employer and we then assume that a governing body is the employer, there can be no doubt whatsoever who is the correct body to dismiss a clerk. However, if I am completely wrong and the clerk is not employed but appointed and that means something different, it does not follow logically that the governing body is the relevant body to dismiss him, in which case the noble Baroness, Lady Blatch, is correct to say that as that is the appropriate body we ought to make it clear that it is the relevant body or rather the legally entitled body.

However, no problem arises of the kind that the noble Baroness, Lady Blatch, mentioned if the governing body is the employer of the person we are discussing. If the governing body is the employer, it may dismiss that person. That is very clear. I raise these points in the form of questions. It is important that we have been enabled to do so as a result of the amendment of the noble Baroness, Lady Blatch.

Baroness Blatch

I shall not answer on behalf of the Minister, as I do not know what the response is for the generality of cases. However, my local school had a clerk to the governing body for about 35 years. He was a volunteer, as were the governors. Therefore, he was not employed but he had duties under the law. He was appointed by the governors. He carried out the job extremely well. It was for the governors to appoint him and for them to say that they no longer wished to retain him as clerk if they were dissatisfied with him.

Lord Peston

In that case, the amendment is not needed. If it is simply the case that the governing body appoints the person, it can "unappoint" the person. There is not a problem there and I do not see what the fuss is about. However, I am sure that there is some subtlety here that I am completely missing.

Baroness Ashton of Upholland

I shall try to enlighten my noble friend Lord Peston. I shall, as it were, "park" for a moment the volunteer clerk mentioned by the noble Baroness, Lady Blatch. Clerks in many schools are paid. As regards foundation and voluntary-aided schools, the governing body is the employer. As regards community and voluntary-controlled schools, the LEA is the employer. That is the employment position.

I take a moment to eulogise clerks. Anyone who has served on a governing body—I am sure that the noble Baroness, Lady Blatch, will agree with this point—will know that clerks are truly vital people. They play an important role in ensuring that governing bodies operate effectively. It is their job to ensure that procedures are followed. They keep in touch with local education authorities. Many have developed further expertise through training and understand issues of law. It becomes obvious if such clerks are lacking in a governing body. Governing bodies can get into difficulties if they do not have an efficient clerk. Many schools have excellent clerks but that is by no means universal.

From my own experience and from my more recent experience at the department I have been struck by the fact that there has not previously been a common understanding of the role that a clerk should play. They play different roles in different schools. That is why this is an incidental point——we have commissioned the development of a training package for school clerks. We have ready to deliver next year a training package that we believe will be relevant to all school clerks whether they are employed by LEAs, individual governing bodies or whatever. It will include a self-study option, so that we can provide some support at last for this band of people who do such an important and valuable job.

I turn to Amendment No. 110. The regulations we envisage making under Clause 22 will largely roll forward the existing requirements in Part IV of the 1999 School Government Regulations. It is an important principle enshrined in those regulations that the governing body should select its own clerk. The clerk is answerable to the governing body and should be chosen by it. The existing regulations provide for foundation, foundation special and voluntary-aided schools to appoint their own clerks. In community, community special and voluntary-controlled schools the clerk is still, as I said, selected by the governing body but, as with other staff appointments in those schools, is appointed and employed by the local education authority. I hope that that makes the position clear for my noble friend.

I turn to Amendment No. 111. In the rare cases where it is necessary to dismiss a clerk, the governing body will normally take that decision. Governing bodies retain the right to determine that they do not wish to accept the services of a particular individual, even where clerking is being provided under a subscription buy-back service from a local education authority.

We believe that it is right that governing bodies should select and have the power to dismiss the clerk and we shall replicate that principle in the new regulations. As I say, that is in keeping with the principle of individual school autonomy and will he appropriate in the vast majority of cases.

I address both Amendments Nos. 110 and 111. I hope that those reassurances are helpful. Let me now turn to the exceptions to this general position. The existing regulations already prevent governing bodies of voluntary-aided or foundation or foundation special schools appointing or dismissing a clerk without the local education authority's consent if the school has lost its delegated budget and to allow the LEA to direct that a clerk in one of those schools should be dismissed.

However, where things go wrong it may be appropriate to allow a local education authority, or the relevant contractor where it has taken over the local education authority's functions, to be nominated as a prescribing body. A good clerk can play a crucial role in helping to turn a failing school around and it may be appropriate in those circumstances to allow a local education authority in supporting a school in special measures to designate who that clerk should be. The Ofsted representative on our Advisory Group on Governance has told the group that Ofsted has observed that placing a good clerk on a governing body of a school in special measures can play a significant role in training and supporting that governing body to play a more effective role.

Amendments Nos. 110 and 111 would remove any possibility that the local education authority could make decisions about clerking in any foundation or voluntary-aided school which had had its delegated budget removed. The local education authority has a responsibility to intervene where schools are in difficulties and we believe that its powers should apply equally to all maintained schools whatever their category. I agree that the principle of self-determination is an important one for schools. I also recognise that in voluntary-aided and foundation schools the governing body is the employer. But where schools have serious weaknesses or are in special measures it is surely right that special arrangements should apply to allow for the removal of a weak clerk in order to allow the governing body to take the school forward.

I turn to the Question whether the clause shall stand part of the Bill. As I said, the clause replicates without amendment provisions that are currently contained in Schedule 11 of the School Standards and Framework Act 1998. It is required because Schedule 11 will be repealed by the Bill. It will enable the Secretary of State to make regulations relating to the appointment and dismissal of clerks. Good clerking is the key to good governance and key provisions relating to appointment and dismissal should be the subject of some regulation. The clause is therefore a necessary part of the Bill.

I hope that Members of the Committee will accept that in the vast majority of cases governing bodies will continue to select and dismiss their own clerk and that we should be able to make appropriate provisions with regard to clerking through regulations. With those explanations and assurances I hope that the noble Baroness will withdraw the amendment and her opposition to clause stand part.

The Lord Bishop of Blackburn

That is extremely helpful. The education of young people and children is what we are about. If a school is failing, they need all the help that they can get. I take the Minister's remarks about the clerk's role in that regard; it is absolutely essential.

On regulations, I wonder whether the LEA could work in collaboration with the diocesan authorities. In my diocese, quite a lot of that already goes on and is very helpful. I should not want to make that binding but it would be a helpful addition; perhaps the phrase, "in consultation with" could be used. I hope that the clause will stand part because we do not live in a perfect world and there are circumstances in which it is necessary to have regulation of clerking—of the way in which people are appointed and dismissed.

Lord Peston

I have no particular interest in the sub-set of schools; I have an interest in clerks in general. The clause should clearly stand part of the Bill; it would be absurd if it did not. I am a little troubled about one aspect of my noble friend's reply.

In my experience, one can have a perfectly good clerk—perhaps an excellent clerk—who simply does not get on with the chairman or the governing body. One sometimes has to accept that one has a simple choice: either the governors go or the clerk goes. That is not the clerk's fault; the people concerned simply do not get on. I can imagine a similar case in your Lordships' House, which, happily, has never happened to me. Those of us who chair committees are simply told that X is our Clerk. I could be given a Clerk—I hypothesise entirely—whom I did not like. That has never happened; I have always had marvellous Clerks. I have no right to dismiss a Clerk. Goodness knows what would happen if I suddenly found myself in that position.

One has to accept the fact that, as the right reverend Prelate said, this is not a perfect world and that we do not all get on with each other. We therefore must have procedures whereby one simply has to say to a clerk, "Look, you are very good but you have to go". That is the reverse of what my noble friend the Minister was saying. I hope that she is not saying that one can only get rid of a clerk who is not very good. Sometimes, one has to get rid of a clerk who may be too good but the governing body cannot cope with him.

Baroness Ashton of Upholland

I hope that I did not give the impression suggested by my noble friend Lord Peston. I was trying to be specific. The relationship between a clerk and a governing body, in the vast majority of cases, is a relationship between all good people trying to work together. That occasionally does not work. That is for them to work out. This is a different instance; we are concerned purely with the case in which a school is in real trouble and how the position could affect the way in which it tries to get out of trouble. I say to the right reverend Prelate the Bishop of Blackburn that I am happy to talk further with him about a collaborative approach.

6.45 p.m.

Baroness Blatch

I am sure that there are clerks who occasionally have not got on with their governing body. However, the level of dependency of a governing body on a clerk is usually such that it is only too pleased to have him; he receives the mail, reads all the bumf that comes into school and alerts teachers, head teachers and governors to what they should be thinking about or doing. A clerk is one of a governing body's best friends, not one of its worst.

I do not think that the sky would fall in if the situation was not regulated. I accept absolutely the point made by the right reverend Prelate. One difficulty with regulation is that when things start to go wrong with schools, some schools are in denial and will not seek help but others are desperate for help and are very happy to collaborate. I do not believe that there is anything that stands in the way of an LEA collaborating with a Church school or a maintained school. Schools are free to seek that help. I should not want to stand in the way of that.

Another problem with regulation—I have not yet seen many flexible regulations—is that Bills can be broad-brush painted canvases but when regulations are produced, they are "one size fits all" regulations. Very few regulations state, "This is how you should do something". Some schools may have their own way of doing things. My worry is about the straitjacket of regulations and the fact that one constantly has to hold the manual in one hand while trying to be good governors and good clerks to governing bodies. I have a natural dislike of regulations. They should exist only when absolutely necessary.

I have a question in passing, although I do not expect the Minister to answer it tonight. It would be interesting to know how many sets of regulations will be spawned by the Bill. We are only up to Clause 22 but we have already passed a fair number of regulations.

The language of regulations is very off-putting. The Plain English Society has been fighting for years for us to do something about regulations. What do we do when regulations are complex and legalistic? We produce guidance. That means that in this area there will be: an Act of Parliament; cross-referencing from one piece of legislation to another because we have not consolidated enough; regulations; and guidance or guidelines on how to operate the regulations. There may also be a poor clerk to a governing body—that is the subject of my amendment—who has to interpret all of that for the governors. The more flexibility that there is in regulations, the better.

The right reverend Prelate made an important point. When schools need to seek help, they should not be inhibited; they should be free to do so—we should not stand in the way of that. I shall not press the amendment but there is at least something for the Minister to reflect on between now and the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 111 not moved.]

Clause 22 agreed to.

Clause 23 [Federations of schools]:

Baroness Walmsley

moved Amendment No. 112: Page 14, line 17, after "may," insert "after obtaining the consent of the local education authority and The noble Baroness said: In moving this amendment, I shall speak also to Amendments No. 134.

The Bill introduces two new, innovative and powerful ways in which schools can work together; namely, through federation and the joint discharge of functions. Local government will wish to support schools as they develop new ways of working. The amendments will ensure that before schools develop those new structures, they will have the advice and support of an LEA.

Amendment No. 112 requires any school that intends to federate to receive the consent of the LEA. It is necessary, given the financial, legal and administrative issues involved in federation, for the LEA to be involved and supportive from the earliest possible opportunity.

Amendment No. 134 would ensure that the LEA was consulted before two governing bodies arranged to discharge any function jointly when they do not wish to federate. The purpose of the clause is to encourage joint working when government bodies do not wish to federate. The amendment provides a safeguard for local communities and community interests—that governing bodies that wish jointly to discharge functions can do so only after consultation with the local authority. The amendment will also help local authorities to encourage schools jointly to discharge functions when individually they might not be keen to do so. That could assist local authorities to raise standards because a strong governing body would be encouraged to work with a weaker one in specific circumstances. In practice, joint working and partnership has always been seen as being beneficial to both parties because even the weakest corporate body has some strengths from which lessons can be learnt.

As we said in relation to other amendments dealing with this issue, it is crucially important for the LEA to be able to assess the impact on other provisions, so as not to distort existing provisions or enhance one or two schools to the detriment of others in the authority. I shall not repeat the arguments about LEA involvement—they were well rehearsed in a previous sitting. I beg to move.

Baroness Blatch

I rise to speak to Amendments Nos. 113 and 114, which are included within this group. I have reservations about the federations. The Minister has not yet given us examples of things that schools can do together under one governing body without the whole panoply of these clauses and rafts of regulations necessarily being imposed on them.

I am reminded of something that the noble Baroness, Lady Sharp, said earlier, which raised alarm bells for me. That was the description of the pre-Taylor governing bodies. Large swathes of the country, in particular in county areas, had one governing body. Under those bodies, some schools were very successful, some performed indifferently and some failed badly. But, somehow or other, those situations were allowed to go unattended and unaddressed because the governing bodies simply were not geared to representing the interests of each school. The implementation of the Taylor report brought about great change, and schools gained their own governing bodies.

Having said that, some Members of the Committee will know that we fought very hard for two small Church schools—one primary and one junior—on one site to have a single governing body. However, that is not what I am talking about. I am talking about the pre-Taylor days when large swathes of schools were represented by one governing body. I hope that that experience will be in the back of people's minds when these federations are formed.

Secondly, the federation idea is not new. Again, I refer to my experience in Cambridgeshire. The noble Baroness will know the area that I am talking about the Newmarket area. In those days, there was a great deal of concern about very small schools. We put together three small schools whose total number of pupils, I believe, was fewer than 50—that is, for all three.

We believed that that was the answer to a prayer. Rather than close the schools, the children would stay put and the teachers would move around the federation. It did not quite end in tears but it failed as an experiment due to the logistics of coping in a country area with different schools and with the same teachers running around them. It is true that the schools had more teachers and that the system extended choice to the children. But, ultimately, it did not work. Eventually the schools closed and the children were amalgamated into a single school.

We should not underestimate some of the difficulties that can arise in relation to federations. It may make sense for two or more schools to come together for a particular project—perhaps a building or educational project, or perhaps to provide economies of scale and further liberate capacity. I see no inhibitions in relation to that happening at present.

However, we are talking about something very different here. The notion of federations, as incorporated within these clauses, is that schools would come together for everything that they do. A single governing body would manage all the schools within the federation. There would be no limit on the number or type of schools. I believe that we should think very carefully about whether that would work.

I know that the noble Baroness will probably say, "But this is not an imposition. These are permissive clauses. Schools can opt, if they wish, to become federated. They will not be compelled to do so". I accept that, but I worry about the detail. As always, the devil will be in the detail, and we shall not see the detail until these dreaded sets of regulations, governing how the whole system will work, are produced.

Amendment No. 113 seeks to deal with a concern that I have at the back of my mind about the use of federation as a mechanism for doing other things. Coming together collaboratively is one thing, but it is possible that, as it pools its sovereignty, if I may use that word, a school will also lose some of its distinctive character.

Therefore, the amendment states that the action of becoming a part of a federation should not be used to change the nature or character of a school. I cite, for example, religious schools, single sex schools, coeducational schools and the legal status of a school—that is, foundation, voluntary-aided, community or academy. Having read the clauses in the Bill, I am not sure whether under a federation a school would be an academy, a nursery school, a Church of England voluntary-aided school or a Catholic voluntary-controlled school. Would it continue to enjoy that status and would that status be in any way compromised by the act of becoming part of the federation.

In relation to single sex schools, of which there are not too many, there is now a great deal of evidence to show that teaching boys and girls separately at certain stages and for certain subjects in the curriculum is educationally beneficial. I know of an experiment in Essex—it is probably now past being an experiment in which the headmaster of a single school—not a single sex school—decided to separate the boys and girls and teach them separately. So far as I know, that worked extremely well. I believe that it is important to protect the distinctive character of schools.

It is possible that a governing body will wish to compromise its own character voluntarily. It may wish to relinquish the distinctive ethos of a school. If that is permitted under these clauses, I should like to build into the legislation some form of protection for the parents and children of a school in order to ensure that it would not happen without a procedure being in place.

Amendment No. 114, again, seeks to ensure that a single governing body—I am talking now in terms of the Government getting their way and of these clauses remaining in the Bill—includes parents and teachers from each of the constituent schools. Whether it is a specialist school, a nursery school, a religious school or a school that is co-educational or single sex, the distinctive ethos of each school should be represented on the single governing body.

These are important points. They seek to ensure that important safeguards are put in place. I look to the Minister for a number of reassurances and, ultimately, I shall look for those reassurances on the face of the Bill.

The Lord Bishop of Blackburn

I rise to speak to Amendment No. 116, which stands in my name and that of the noble Lord, Lord Alton of Liverpool, who has an engagement in Lancashire today and cannot be here.

On these Benches, we were quite excited about the possibility of federation. As the noble Baroness, Lady Blatch, has just said, it is not a new idea. We were excited until the noble Baroness, Lady Sharp of Guildford, spoke about the pre-Taylor days.

I am reminded that, when I was married, my wife was the head teacher of a large infants school. I was diocesan director of education for the diocese of Durham. In the early days my wife was very surprised that I kept going out to attend governing body meetings at different schools. In the borough of Sunderland the education committee was the governing body of all the schools in that authority. My wife simply submitted a report now and again. I do not consider that that was a true governing body, and I hope that that is not in the Government's mind.

I believe that the idea of federation is to be welcomed because, in some senses, it is visionary. In some circumstances it may serve to meet the concerns that some people have about faith schools and the separation which they believe such schools should have. I do not have those concerns but some people have them. However, that will only come about if each school is allowed to make its contribution in terms of variety and diversity of approach.

As an example of that, today is Ascension Day. I was determined to get that into this debate somehow as I have to spend my time here when the rest of Church House is having a holiday. I hope that it might be possible for some schools to have a holiday on this day. However, that is a very simple illustration. It seems to me that the proposal is a sensible way forward provided that there is, as I said, a contribution from all the schools.

Real issues have been raised, and I believe that the noble Baroness, Lady Blatch, has illustrated some of them. I do not want to look at the matter in a negative way; I prefer to turn it on its head and look at it in a more positive manner. But the concerns are there.

For us, perhaps the most important concerns would be twofold: the constitution of the governing body of such a federation, the number of governors to be appointed by the foundation or the Church and the powers that they would exercise; and the safeguards in the appointment of a head of a particular ethos of a Church of England school within the federation. I know that the Roman Catholic Church shares those views and does not believe that the Bill as drafted is sufficiently robust in providing the protection as would be the contribution we want to make.

In a federation of three schools, for example, one of which is a Church or other religious voluntary-aided school, the Church or other religion should be able to appoint sufficient governors to the federating governing body to allow for the preservation of the religious character of the school concerned. I turn to the key aspects of the ethos of the school. "Ethos" is not a word I like. I spent a good deal of my time interviewing head teachers yesteryear. When asking, "What is distinctive about a Church school?", one would always receive the lovely answer, "It's the ethos, Cannon Chesters". Then one would go on, as I know the noble Lord, Lord Peston, would, to say, "Would you please tell me what that ethos is and what it means?" It includes such aspects as the practice of collective worship and the syllabus for religious education. Those should be matters for the Church-appointed foundation governors and not, perhaps, for the whole governing body. They are to do with the distinctive contribution of a particular school or schools. Likewise, the governors in question should have the responsibility of engaging in the appointment of a head and other members of the leadership team.

Further, if the federation has one head and one leadership team for several schools, some of which are voluntary-aided schools, Church schools or other faith schools, there will need to be legislation about how that head is appointed and how that leadership team is constituted so as to preserve the contribution—the religious character, or whatever it is— of such schools in the federation and vice versa. We do not want to see those federations as a takeover. That works both ways. Given the popularity of voluntary-aided schools at present, we could well see a federation going that way. I have nothing to fear. I am not paranoiac about this, nor are these Benches. However, we believe that if we are to have federation, each school should contribute. As a Church, we have a fair amount of experience of federating parishes within various groupings and schemes, which has proved beneficial both in urban and rural areas.

My amendment seeks to require the consent of the appropriate diocesan authorities before such a federation can go ahead. The schools to which I refer in my amendment are part of a family of schools. They do not exist on their own and, in the case of the Roman Catholic schools, belong to the diocese or to the bishop. I am not entirely sure about the ecclesiology of the Roman Catholic Church, but I believe that that is right. In our case, we want to work within a family and to co-operate and collaborate together. The noble Baroness, Lady Blatch, is right; we do not want a maverick group of governors to sell the birthright that others have gained by getting rid of what the foundation stands for. I do not believe that the federation is about that.

Those are my reasons for probing the Minister with the amendment. I am an optimistic person. Surely, she will want to give me something on Ascension clay. I am not too hopeful, but we shall see. I shall listen carefully to what the noble Baroness has to say and perhaps return to this on Report if I am not satisfied.

7 p.m.

Baroness Blatch

A question that occurred to me while the right reverend Prelate was speaking about enthusiasm for federations concerns the constitutional position of the diocese. Certainly from my experience, standing in the shoes of the Minister, some dioceses have a strong and, in some cases, even dominant relationship with a school. Sometimes the school acquiesces in the face of that and sometimes there is a tension between the diocese and the school. It occurred to me that as well as schools federating with other schools and other partners, there is the constitutional position of the diocese. I wonder what the right reverend Prelate has to say about that.

The Lord Bishop of Blackburn

That is right, although in the case of Anglican schools, each school is an autonomous body. It is a larger issue for the Roman Catholic Church. Relations between dioceses and schools have improved over the 30 years or so that I have been playing this particular role in one form or another. That is because there is greater dependence on the resources which a diocese can provide in the variety and complexity of education from when I was first ordained in Southwark 40 years ago. The whole position has changed. However, the point raised by the noble Baroness is more a question for the Roman Catholic Church in law. Our schools tend to be autonomous, and there are not too many. The role of the diocese is in the appointment of governors and in giving advice to the "family" of schools in getting a sense of direction across an area.

Lord Peston

I am working hard to try to take the amendments seriously. I shall try, but if I fail I hope that Members of the Committee will forgive me. When I first saw this part of the Bill, I wrote, "Oh no" in the margin because, like the noble Baroness, Lady Sharp, I thought that this was taking us back to the pre-Taylor days. However, it does not remotely do so. I can see no reading of this that could possibly take us back to the pre-Taylor days. The right reverend Prelate is right to remind us, first, how appalling the pre-Taylor days were for many local authorities, and, secondly, that that cannot happen here. It cannot happen for the obvious reason that this is all permissive. This is not the Government or anyone else using powers to say, "Your two schools will federate. You will have your own governors, having had separate ones". As the Bill allows for federations of federations, the next stage will be to say, "You two federations will not federate", and so forth.

As mentioned by the noble Lady, Baroness Walmsley, the provisions in the clause will be used only if schools, opting for "jointness", co-operation or any other word that has the same meaning, feel that they cannot do so on an ad hoc basis or by other means of acting jointly, but need a more formal measure. Therefore, it seems to me—perhaps my noble friend will confirm this in due course—that each will propose to the other that that is the correct interpretation. The schools will say, "We are getting closer together for all sorts of things. This particular Act of Parliament", if such it becomes, "enables us to federate. Don't you think that would be a good idea?". That seems to be a perfectly sensible way of moving forward if we believe that "jointness" is a good thing, which in many cases we do, and that federation is the way to achieve it. I have some difficulty, as have other noble Lords, in trying to think of enough jointness to lead to federation. Presumably the Government have one or two examples. I would think that most co-operation could be done on an ad hoc basis.

The right reverend Prelate seemed to assume that somewhere out there is a group of revolutionary Catholics or Protestants who will take over a school. That group would have to find another revolutionary group with which to federate; it cannot do so on its own. That is why I have difficulty taking the amendment seriously. The mind boggles at the idea that there are great numbers of governing bodies, all of which are suddenly about to break loose and federate. Given my philosophical views, I should love to see that, but I find it impossible to believe.

Let us take another example. When my children were young, there was Highgate Primary School—I would not describe it as the local secular or atheist school, but if we look for its ethos, that would be it—and St Michael's School down the road. The schools were simply separate. Even if this law were passed, it is impossible to believe that the two schools would federate under any circumstances. Therefore, I cannot see the problem.

However, let us suppose that two schools cooperated closely. At my first secondary school, the boys' school was next door to the girls' school. Two such schools might get closer; the boys and girls might get closer and the two schools may federate and set up a joint governing body. I have to say to the noble Baroness, Lady Blatch, that the character of both schools would change, but the whole point of the federation would be that the character of both schools would change. Therefore, to have an amendment which seeks to provide that the two schools would get closer together and that somehow we can define a concept of character which they must not change is ridiculous. The fact is that they would co-operate. From then on, some of the boys would be taught by some of the women teachers and so on. I do not think that that would be a bad thing.

Therefore, I am particularly opposed to subparagraph (1A) of Amendment No. 113, which states that nothing should allow for the change of character. I should like to see character evolving through time. That is quite different—despite my views on religious schools—from anything being a threat to the religious nature of the school. This section could not possibly have that effect in any real world. Therefore, I reply that I have tried to take this matter seriously. I have particularly tried to take it seriously because of my original opposition to the whole idea of federation. On the assumption—following on from what the noble Baroness, Lady Walmsley, said—that we like co-operation as a way of working within education, this gives us a step forward. I doubt very much whether many schools will decide to federate, but if they want to try the experiment, I certainly feel that they should be given the chance.

Lord Dearing

I wish to pick up a point made by the right reverend Prelate. He said, "It is not just the school, but there are other interests". Suppose we had an area where there is one Church secondary school but 10 primary Church schools. If that Church secondary school disappeared into federation and lost its character, the children's lives, as their parents see it, would be affected. So the authority of the diocese could legitimately he involved.

However, that is not the point that I want to raise. I want to suggest that the Government should not have one model federation in mind but should be open to different varieties. Perhaps I may give an example from higher education. The Church higher education college at Roehamption comprises one Anglican college, one Methodist college, one Roman Catholic college and the Froebel Institute which does not have any affiliation.

In that college there is one governing body for the college, but each of the individual foundations has its own governing body with reserved powers and responsibilities. Moving on, Roehampton Institute has federated with the University of Surrey. Three major responsibilities and powers are reserved to the governing body of Roehampton. Therefore, in the federation one has one body with overall responsibility for the federated entity. But that does not deny the possibility, and, indeed, the desirability of having reserved to the governing bodies of the constituent elements, certain powers and responsibilities. That would be one way to maintain particular distinctions which the noble Baroness, Lady Blatch, and I dare say the right reverent Prelate were concerned to maintain.

In approaching this exciting idea, which I might have extended to a federation between a school and an FE college—I leave that to one side—the Government should keep an open mind about the opportunities and possibilities rather than prescribe.

7.15 p.m.

Baroness Sharp of Guildford

I did not intend to intervene in the debate but it has become a debate on the whole issue of federation. Later we are due to discuss clause stand part, but I suspect that that debate will be somewhat truncated as we shall largely have discussed the matter.

People are confusing the concept of co-operation and clustering with that of a federation. I read to Members of the Committee subsection (3) of Clause 23: 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". That is clear in the proposed legislation.

I join with the right reverend Prelate, with the noble Lord, Lord Dearing, and with the noble Lord, Lord Peston, in thinking that, "Yes, schools getting together and co-operating is an absolutely splendid thing". We have had too much of schools standing on their own and competing with each other. It is clear that working together is a sensible idea. In Guildford, for example, the secondary schools work together. There is a certain amount of sharing, in terms of the curriculum and specialist subjects and so on. But perhaps there is not enough.

Let us take what happened to a group of primary and secondary schools in Guildford at the time we were talking about the King's Manor—now King's College—problems. It was proposed to create an education action zone. A group of half-a-dozen primary schools and two secondary schools were to be put into that education action zone. They would each lose their boards of governors. There would be a single governing body for the whole zone.

I was immediately worried, partly because the primary school of which I was a governor was one of those proposed for the zone. I recognised how important it was for that primary school, which had been in special measures but was moving out very fast, to have its own board of governors because it helped to create a good feeling. The board reflected the local community. That is what boards of governors do. For a school it is an important channel of communication into the local community.

There are great dangers in moving down this route without thinking hard about it. I take the point of the noble Lord, Lord Peston, that this is a permissive rather than a statutory regulation: we are not forcing schools. I am worried that in some hands the whole concept of clustering will become more than just clustering. It will push schools into the concept—as they were trying to push on us with the Education Act—of doing away with the individual ethos of schools and with the individual governing boards.

We must be a little wary of the provision. I suspect that we shall end up by leaving it on the statute book. It is vitally important that we recognise that it is permissive on the statute book and that it is not mandatory on schools to go down this route. Schools should not be pushed along this route for spurious economies of scale, which are pushed on them either by the Secretary of State or by local education authorities which are short of funds.

The Lord Bishop of Blackburn

I hope that the noble Baroness did not gain the impression that I was not taking the federation seriously. That is why I spoke for rather longer than I have previously about our concerns. Nevertheless, in some circumstances, this is a possible way forward which might meet some of the challenges that we face. But I hope that I did not give the impression that we were not concerned about the one governing body. That was not the purport of my remarks.

Lord Peston

I do not want to let this matter go because it is a very serious argument. I hope that my noble friend will, first, reassure the Committee that this model of pressure, "You schools, if you want any money, will have to federate", is not one that is remotely implied by the Bill. It certainly did not occur to me that that was so. Secondly—and I am sorry that the noble Baroness, Lady Sharp, views the matter so grudgingly—I view federating as an opportunity. I accept that logically it follows that the federated school would become the federated school with its governing body. That must be the case. One would then have to accept that in any local area this group of two or three took a wise decision.

I hate to make any tart remarks to Members of the Committee opposite, but they have said how keen they are on governing bodies and how important they are to the school. If the schools federate it follows that they should trust the governing bodies. If they get together and decide that it is in the best interests of all their schools to federate, that is the right outcome. But at this point it will be the governing body of the federated enterprise. It is unavoidable.

The noble Baroness has put her finger on the issue of regret: "Oh, I am sorry that our separate school has now gone". The answer is that we are sorry that it has now gone, but a case has been made out by the relevant people that this is the right way forward. I know that it is a situation of, "Is the pot half full or half empty?". However, in this case I am optimistic—I think that the right reverend Prelate used that word—that this is an opportunity that could be grasped. I repeat that I think that that will be rare, but I should like—what is my cliché for today?—to give it a fair wind.

Baroness Blatch

Before the noble Lord sits down, did I hear him say that a school would go with its governing body? My understanding is that it would go without its governing body. It would share sovereignty over the running and management of the school. The governing body would be disbanded. For many schools that would be a leap into the dark that might or might not work.

Lord Peston

I trust governing bodies to take the decision to form a federated school. My model is therefore not one of outside forces making people do things that they do not want to do. It is one of governing bodies thinking about what is in the interests of each of their schools and forming a federation with a federated governing body. If I may provoke the noble Baroness, it is like the countries of Europe deciding to pool some of their sovereignty to produce a European Community—which many of us favour overwhelmingly as the future. We do not feel any loss of sovereignty or anything else. That is the model that I should like the noble Baroness to think of when she considers the matter.

Baroness Ashton of Upholland

I shall attempt to follow my noble friend's remarks. This is a dangerous area, but the French are still French, the Italians are still Italian and the Spanish are still Spanish. The point is that schools will retain their ethos. The decision is about a strategic objective.

I want to build on the enthusiasm of the right reverend Prelate the Bishop of Blackburn and encourage other Members of the Committee to be enthusiastic. The provision is part of a range of collaborative approaches to allow schools to come together in different ways and work together in collaboration.

Clause 29 provides the opportunity for schools to form joint committees. Those of us who went through de-grouping—which I am pleased that no Member of the Committee has yet mentioned—as I did, remember that one of the big issues for an infant and junior school when de-grouping was how to ensure that curriculums worked effectively together. We are considering a range of collaborative measures of which federation is one.

I shall give the Committee two or three real examples from schools and local allocation authorities to whom we have been talking about the provision—because it has arisen from discussion. I can think of at least one area where a special school is co-located on a community school site—something that we are considering in other contexts to support our special schools but also to enable the special school's expertise to become part of the expertise within the mainstream sector. It is considering the model of federation. It may decide to choose another collaborative model, but it is considering whether that model would make sense for it.

Infants' and junior schools may want to federate. Those working in rural communities such as those described by the noble Baroness, Lady Blatch, may consider that a federated model would be easier for them and allow them to think more strategically. Schools with sixth forms that are working increasingly in collaboration are thinking about how to ensure that their sixth forms thrive and that their students can come together to take advantage of the different subjects offered in the different schools. Federation may be an approach that they want to follow.

Another example was mentioned by the right reverend Prelate the Bishop of Blackburn, which concerns what I would call the social inclusion agenda. Schools coming together in some areas could enable us to consider closer collaboration—working effectively together—between schools of different faiths and of none.

That is the backdrop. Federation is permissive. It can work only if it is what governing bodies want to do— I stress that.

I shall deal with the amendments individually because they raise different points about ensuring that the character and ethos of a school remains. I shall deal first with Amendments Nos. 112 and 116. Federation will work only if it is entered into because schools want it and are committed to making it work. As my noble friend Lord Peston said, the decision to federate must be entirely voluntary. I am not sure that that would be the case if the appointing body for one stakeholder group had power to determine which schools could federate. That would be the effect of the amendments.

Amendment No. 112 would effectively allow local education authorities to decide which schools should or should not federate. I take this opportunity to say that we do not intend federations to become a tool for local education authorities to rationalise governance provision within their area. That is not their purpose. Federations are in no way intended to reduce the diversity of schooling provision available.

Amendment No. 116 would mean that any Church of England, Church of Wales or Roman Catholic school could join a federation only with, the written consent of the appropriate diocesan authority". The amendment would have the unfair effect of applying a two-tier system for considering federations involving any maintained school with a religious character" as the religious leaders of minority faith schools would not enjoy a similar veto. It should be remembered that there are a range of other stakeholders, including parents and staff, who are just as important. I am sure that the Committee would agree that we must be fair in allowing each stakeholder to have an equal voice in the decision to federate.

The people best placed to weigh up the views of all the relevant stakeholders and take a balanced decision on whether federation is in the best interests of the school involved is the school's governing body—including the LEA and, where appropriate, foundation representatives. That is why we propose that the decision whether to federate should rest with the governing body of each school. Of course, as part of the decision-making process, the governing body will have to consult. I recognise the importance of ensuring that that consultation is carried out thoroughly and consistently. That is why we will develop regulations setting out the procedures for consultation with all the key parties, including the local education authority and the diocesan authority, before the decision to federate is taken.

I draw the Committee's attention to a further important safeguard in the process for agreeing an instrument of governance for the governing body for federation. I assure the Committee that we will not be removing any rights currently enjoyed by bodies in relation to agreeing the instrument of government. Currently, for maintained schools that have foundation governors, the school's governing body and the local education authority are required to agree the instrument of government and any alteration to it with foundation interests. That includes those who appoint foundation governors, trustees and the diocesan authority. In the interests of parity and fairness, regulation will provide that that requirement also applies to the instrument of government developed for schools with foundation governors that are federated under a single governing body.

If any of the parties above, including the diocesan authority, disagrees with the instrument of government or any alterations to it for a school within a federation involving foundation governors, the case can be referred to the Secretary of State. She will then arbitrate after taking representations from the relevant parties and come to a final decision.

That is exactly the same process as currently successfully applies to any maintained school with foundation governors. It will ensure that dioceses have the protection of arbitration by the Secretary of State if they disagree with a proposal to federate.

I turn to Amendment No. 113. As I said, our purpose is to enable schools to collaborate strategically and through that to improve educational standards for their children. It is in no way a proposal to reduce the diversity of schooling provision available in any one area. Indeed, we have taken steps to ensure that schools within a federation should be treated as separate schools for most purposes—other than governance, of course. That means that no school will be able to change its religious character, admission arrangements, category or from single-sex to coeducational simply through the act of joining or being a member of a federation. I agree with the noble Baroness, Lady Blatch, that it is important to state that in the Bill, as we have indeed done in subsection 3(b).

In relation to the character and structure of a school, the requirements set out in Chapter 2 of Parts 2 and 3 of the School Standards and Framework Act 1998 will continue to apply to all schools within or joining a federation. Let me explain what safeguards that provides. Section 33(2) of the 1998 Act prohibits a change in the religious character of any school. That will continue to apply, regardless of whether a school joins or is already in a federation.

In practical terms, I reassure the Committee that any proposal to change a school's religious character could, as now, be realised only by publishing proposals to close one school and open another. If a federated school wants to change its category or change from single-sex to co-educational, it will be required to publish a statutory proposal under Sections 35 and 28, respectively, of the School Standards and Framework Act 1998. Federation cannot be used to bypass that statutory process.

Clause 23(3)(b) also states clearly that schools which have federated may not be treated as single schools for admission purposes. There will continue to be separate admission arrangements for every school within the federation.

I hope that this has given reassurance that federations cannot be used as a back-door for schools to change either their character or their structural requirements. We agree with the motivation behind the amendment: that any changes in these areas should continue to require statutory proposals and he subject to scrutiny by the local school organisation committee.

Amendment No. 113 also makes reference to "academy". Academies are not within the scope of Clause 23, which relates to maintained schools only.

I turn to Amendment No. 114. It will be vitally important to ensure that the governing body of a federation is not too large and unwieldy to be effective. That will not help schools towards the ultimate goal of improving standards. However, at the same time, we need to ensure that all participating schools are broadly content with their level of representation on the governing bodies of federations. We expect all governing bodies of federations broadly to comply with the stakeholder principle as recommended by the Way Forward group which under Clause 18 of the Bill will be set out in regulations. We believe that that is vital to ensure that a fair balance of interest between the key stakeholders of parents, staff, LEA community, foundation and partnership governors is secured.

All of the categories of governors applicable to the relevant schools within a federation will need to be included. Thus within a federation including aided, voluntary aided or foundation schools there will always be foundation or partnership governors.

While it would be preferable for at least one parent representative from each school within a federation to sit on the governing body, regulation on this point could unduly constrain the ability of the governing body of a federated school to choose the size of governing body which works best for them. Simply requiring that each school within a federation has a specific level of staff representation reduces flexibility for schools. One of the objectives of federation is to allow strategic collaboration to facilitate that which is already often occurring on the ground.

With that in mind, particularly the possibility of schools sharing staff, we think that it should be left to the governing bodies of the schools involved to propose the appropriate level of staff representation from each school on the governing body of the federation. On the stakeholder group, perhaps I may reassure the Committee 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.

We think it advisable that the proportion of representation for each group should be determined on a case-by-case basis informed by consultation at local level. We intend to develop overarching principles to ensure the level of representation is fair and we shall be consulting extensively ahead of finalising the principle. However, again we would wish the regulations to leave enough scope and flexibility to allow for local circumstances surrounding each individual mixed category federation to influence the precise proportion of representation in these stakeholder groups rather than to prescribe a single formula.

On Amendment No. 134, I emphasise that we intend to leave as much flexibility as possible open to schools so that they can devise the form of collaboration that is best for them. We firmly believe that the decisions on whether to collaborate and with whom to collaborate, the extent of collaboration and the nature and form of joint working arrangements must rest with the individual governing bodies of the school involved. Such safeguards as are necessary to ensure proper accountability—for example, that the full governing body and not a committee of each school should consent to such an arrangement, that any proposal for such an arrangement should appear as an agenda item, and that joint committees should have proper terms of reference, and so on—will be placed in regulations.

We do not believe that it is necessary for LEAs to be formally consulted. Schools should be free to find their own partners and have sufficient experience of running their own affairs to take these decisions for themselves. But that is not to say that governing bodies should not be able to seek advice from the local education authority if they feel that it would be helpful. However, I believe that the option of whether to do so should rest with the governing body of the school involved and should be decided by them on an individual basis.

I hope that in the light of the explanation and assurances I have provided the noble Baroness will feel able to withdraw the amendment.

Baroness Walmsley

In explaining her objection to Amendment No. 112, the Minister believed that local authorities would then decide which schools would federate and which would not. The decision to federate is down to the schools. It would be right for local authorities to be able to decide which schools could not federate given their responsibility to the community in which those schools are based.

Throughout the Bill I have been disappointed by the Minister's attitude to consultation with local authorities. In some cases where local authorities already have powers, the Government seek to remove them and give them to schools forums, and so on. In cases of new initiatives such as this one, the Government seem determined to ensure that LEAs are not involved integrally with the initiatives. That is disappointing. We shall no doubt return to the matter on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Davies of Oldham

I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage does not begin again before 8.36 p.m.

Moved accordingly, and on Question, Motion agreed to.

House resumed.