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Right Of Appeal Against Decision Of Adjudicator

Volume 590: debated on Monday 1 June 1998

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(". The governing body of any school or the parents of pupils at any school affected by decisions of the adjudicator with respect to matters referred to him concerning or in connection with—

  • (a) school organisation plans under section 25 below;
  • (b) directions given under Schedule 7 concerning rationalisation of school places; or
  • (c) admission arrangements under sections 84 and 85 below, shall, in all cases, have a right of appeal to the Secretary of State.").
  • The noble Lord said: Optimism and pessimism have been thrown around in this Chamber but this is a lovely, kind amendment, and it is nice to begin after dinner with this.

    As the noble Baroness knows, there has been enormous controversy throughout the whole of the afternoon about organisation committees and adjudicators. I somehow thought that that would occur and I thought of a nice democratic way out. I therefore propose this amendment which allows the structures of the organisation committee and the adjudicator to continue, but allows an appeal to a Secretary of State who is responsible to Parliament.

    I do not wish to dwell on history but in these Chambers we have always fought for parliamentary responsibility. We have always avoided the official who makes decisions without responsibility. The reason for that is mainly related to those who have not the power nor resources to resort to judicial review.

    I assure noble Lords that resorting to judicial review is an expensive and exhausting process. I mentioned earlier this afternoon my experience as chairman of the Broadcasting Complaints Commission. None of the plaintiffs ever resorted to judicial review, only the rather rich corporations.

    In this situation relating to the school organisation committee and the adjudicator, there will be, without a doubt, some aggrieved parents, people who possibly do not understand the processes of law. At the moment, they have no appeal. It is true that they could seek a judicial review and it is certainly true that some organisations which have the money—and it is very expensive—will resort to lawyers and seek judicial review. But this amendment is primarily designed for the parents of children who have found that their school is being closed; they object; and they have not found any satisfaction from the organisation committee or their representations to the adjudicator.

    I suggest that following English constitutional tradition, there should be a right of appeal to the Secretary of State who can answer questions in Parliament about such a matter.

    In a sense, this amendment sums up the whole of the debate this afternoon. I hope that as an optimist, and a smiling optimist like myself, and also, I know, a supporter of the constitutional traditions of our country, the noble Baroness might even find it in her heart to accept this amendment.

    Our initial response to this amendment is rather similar to that of my younger son when, as sometimes happens, he is asked to choose between two green vegetables. His answer is always "neither". He has an aversion to green vegetables and so it is that we have an aversion to the adjudicator. Therefore, whether or not his decisions are appealable to the Secretary of State is a decision with which, in principle, we should rather not face.

    However, given that if the Bill passes there will be adjudicators, as the mover of the amendment has made clear, the question is whether they should be given virtually unappealable powers. It is undoubtedly the case, as the noble Lord has already said, that judicial review is an expensive and cumbersome process and, frankly, one that is ill understood by many of the people who could conceivably use it. To the extent that they understand it, it is worrying and too expensive for them to wish to proceed.

    The question then is simply, if one wants to have the adjudicator's decisions appealable at all, in reality, should one be able to refer back to the Secretary of State?

    We have looked in detail at the amendment and I think it is fair to say that we are not wholly happy with it. We do not regard it as ideally drafted. For example, there is a failure to define what constitutes "parents of pupils". Moreover, there is no suggestion of whether one is talking about a majority of pupils in a school and how such a situation would be balloted. That is a shortcoming.

    Equally, paragraph (b) of the amendment concerns directions given under Schedule 7. In a sense, those directions will flow from directions given by the Minister. Therefore, one will be appealing to the Minister against decisions that flowed from the Minister in the first place. That clearly is not a satisfactory appeal procedure.

    However, even with those shortcomings, on balance, we are concerned that the adjudicator should not, in effect, have carte blanche to take a decision and that there should be no right of appeal against that decision except in exceptional circumstances. That leads us to support the principle behind the amendment.

    Following on from the noble Lord, Lord Newby, there is another issue here. Under the present system, at the end of this very long process, a local authority reaches a decision. Parents do not argue that the decision was not arrived at properly and was not procedurally correct. They simply do not like the decision and they think it is the wrong decision for their school. They then take their case to the Secretary of State. So they do not need procedural grounds. It would help them if they had procedural grounds but they can go to the Secretary of State and say, "Our local authority has taken this case into account. This is the view that it has reached but we want, once more, to put our case before the Secretary of State".

    The trouble with judicial review is that it is not only expensive—a point that has already been made—but it is not possible for the kind of judgment to be made that a Secretary of State can presently make. In other words the Secretary of State can look afresh at the decision and can come to a different view. If the adjudicator takes a decision, that is the end of it. Unless he has made a procedural "howler" along the way, there is nothing anybody can do about it. Parents can, if they do not like the decision, go through the process of judicial review but the judicial review is free to make a judgment only about the way in which the decision has been arrived at as opposed to the actual decision made.

    Therefore, under this provision, parents and governors and children attending those schools that are the subject of those decisions lose a part of a process. It is on those grounds that I believe an appeal is very important. If the adjudicator makes a decision that is against the interests of the local people, the local people in any particular school should have the long-stop opportunity to take their case to the Secretary of State.

    I am intrigued by the proposed new clause as I believe it represents a departure from the Opposition's usual criticism of any proposal to give powers to the Secretary of State.

    The objective of the new arrangements that we are introducing, both for school organisation and for admissions, is to secure that decisions are taken at a local level. In the case of school organisation, we are requiring the establishment in each LEA area of a school organisation committee to bring together the partners, as we have already discussed. In the case of admissions, we shall require consultation on admissions arrangements at local level, and suggest that the establishment of a local admissions forum may be helpful. However, we shall deal with that aspect later when we debate the admissions part of the Bill. We recognise that in some circumstances local agreement will not be reached. As I said earlier, we hope that those will be rather rare occasions; indeed, the adjudicator exists for just such cases.

    The adjudicator will review all the issues, taking full account of all objections and comments made, before reaching a decision. The adjudicator's decision will be final. As I believe the noble Baroness, Lady Blatch, and the noble Lord, Lord Newby, recognised, any challenge to the adjudicator will be by judicial review.

    Perhaps I may point out to the noble Baroness, Lady Blatch, that the new system is one based on the principle that the adjudicator will undertake a review as regards any dispute which is taking place. Therefore, to add the Secretary of State to that process would further extend the whole system thus rendering it more time consuming. Moreover, it would also duplicate what the adjudicator was doing.

    The amendment would re-introduce the Secretary of State as a further source of appeal. That would have two effects. First, it would involve the Secretary of State in decisions which are properly taken elsewhere; and, secondly, it would prolong consideration of the issues. We believe that the arrangements that we have put in place provide proper opportunities for schools and parents to make their views known. Where cases are referred to the adjudicator, he or she would be bound to take those views into account in a proper and reasonable consideration of the issues. Therefore, they will have every opportunity to put their case, as clearly as they are able, to the adjudicator.

    I note with interest the inclusion of proposals flowing from a direction given under Schedule 7 in the proposed clause. Any such direction would have been given by the Secretary of State where he was of the opinion that the provision of places in any part of an LEA area was either excessive or insufficient. Schedule 7 also provides for the Secretary of State to bring forward his own proposals where he is not persuaded by those brought forward in response to the direction. In such a case, unless the school organisation committee approves the proposals, the adjudicator will be obliged to hold a local inquiry. That reflects arrangements introduced in the 1993 Act in which the Secretary of State was obliged to take account of the findings of a local inquiry in reaching a decision on his own proposals.

    To provide for appeal to the Secretary of State in such cases seems particularly inappropriate when the adjudicator has already held a local inquiry. We believe that there are sufficient opportunities within the arrangements we propose for schools and parents to make their views known. I accept that that is important. Indeed, they should be able to make their views known and they will be able to do so under the system that we propose to introduce. Both school organisation committees and adjudicators will have to take full account of any comments and objections made in reaching reasonable decisions. We shall ensure that our guidance covers the procedures that both the committees and the adjudicators should be following.

    I am afraid therefore that I shall have to disappoint the noble Lord, Lord Pilkington, who was optimistic that the Government might be able to accept his amendment. On this occasion, I believe that pessimism might perhaps have been the right emotion for him to express. Our objective is to ensure that these decisions are taken at a local level as far as is possible and not by the Secretary of State. We are introducing a system of adjudicators. If we were then to have an appeal process to the Secretary of State, it would really make the adjudicators redundant. So, against that background, I hope the noble Lord will feel able to withdraw his amendment.

    I should point out to the Committee that the Minister's new elegant hairstyle does not represent a change in generosity of spirit. I have two comments to make. I shall deal, first, with the position as regards our objection to the Secretary of State taking powers. Basically, on this side of the Committee, we hold the constitutional principle that when you make a law you ought to put on the face of the legislation the powers that are given to the executive. We have—and I acknowledge this fact—objected strongly to the Secretary of State taking such powers and the scrutiny committee supported us in that view. I am pleased, as indeed are all our noble friends, that the Minister has taken our views to heart and has introduced legislation accordingly. Therefore, when she said that we objected to the Secretary of State in such circumstances, that is quite true. We certainly objected to him taking arbitrary powers.

    It has been a fundamental principle of the English constitution that we do not hand to unelected officials powers without appeal. I acknowledge that you give an appeal to a judicial review. But I can only endorse what noble Lords opposite have said; namely, that this is not a redress. Judicial review is only available to the wealthy. Therefore, our objection is that the executive has taken power to avoid its responsibilities without allowing for proper redress.

    The Secretary of State is responsible to Parliament and has to answer to it. He also has to face people demonstrating outside his office. However, more importantly, in such a case he has to answer to the local MPs for the constituencies where the schools are situated. We therefore propose that the appeals procedure should enter into the long 200-year tradition of English democracy, from the Wilkes case onwards, and that the Secretary of State should be answerable to Parliament for his decisions which should be subject to appeal.

    Secondly, it has been said that the adjudicator is local. However, he is not local; he is an official. The noble Baroness said earlier that he is official and that his virtue is that he should not be local. I accept that. It is like being a member of the Parole Board or chairman of the Broadcasting Complaints Commission, and so on. I do not understand how the Minister can now contradict what she said earlier today. She now says that he is local, but that is not so. As I said, he is an official who is going to judge such matters, but he is an official without appeal except to judicial review. I am sorry to repeat myself, but judicial review is not available to the poor.

    We have been debating this matter since three o'clock this afternoon. I believe that the opinion of the Committee has been against these proposals. On this side of the Committee, we feel that it was most unfortunate that Members of the other opposition party did not press their amendment to a Division. I regret that fact. Therefore, at this point and late in the evening, I should like to test the opinion of the Committee.

    8.47 p.m.

    On Question, Whether the said amendment (No. 108) shall be agreed to?

    Their Lordships divided: Contents, 45; Not-Contents, 51.

    Division No. 1


    Addington, L.Mackintosh of Halifax, V.
    Aldington, L.McNair, L.
    Anelay of St. Johns, B.Maddock, B.
    Baker of Dorking, L.Newby, L.
    Biddulph, L.Nicholson of Winterbourne, B.
    Blackwell, L.Northesk, E.
    Blatch, B.Norton, L.
    Byford, B. [Teller.]Palmer, L.
    Carnegy of Lour, B.Pearson of Rannoch, L.
    Carnock, L.Pilkington of Oxenford, L.
    Chesham, L.Renton, L .
    Chesham, L.Rowallan, L.
    Cope of Berkeley, L.St. John of Fawsley, L.
    Cox, B.Seccombe, B.
    Dholakia, L.Skelmersdale, L.
    Dixon-Smith, L.Strange, B.
    Fookes, B.Strathclyde, L. [Teller.]
    Gray of Contin, L.Swinfen, L.
    Lauderdale, E.Thomas of Gresford, L.
    Leigh, L.Thomas of Walliswood, B.
    Lucas, L.Thurso, V.
    Luke, L.Wise, L.
    Lyell, L.Young, B.


    Archer of Sandwell, L.Janner of Braunstone, L.
    Barnett, L.Jay of Paddington, B.
    Berkeley, L.Jenkins of Putney, L.
    Blackstone, B.Lockwood, B.
    Burlison, L.McCarthy, L.
    Carter, L.McIntosh of Haringey, L. [Teller.]
    David, B.
    Davies of Coity, L.Mallalieu, B.
    Davies of Oldham, L.Milner of Leeds, L.
    Dean of Beswick, L.Molloy, L.
    Desai, L.Monkswell, L.
    Donoughue, L.Montague of Oxford, L.
    Dormand of Easington, L.Nicol, B.
    Dubs, L.Orme, L.
    Elis-Thomas, L.Ponsonby of Shulbrede, L.
    Farrington of Ribbleton, B.Puttnam, L.
    Fitt, L.Ramsay of Cartvale, B. [Teller.]
    Gallacher, L.Renwick of Clifton, L.
    Gilbert, L.Ripon, Bp.
    Gordon of Strathblane, L.Scotland of Asthal, B.
    Grenfell, L.Simon, V.
    Haskel, L.Smith of Gilmorehill, B.
    Hollis of Heigham, B.Taylor of Blackburn, L.
    Hoyle, L.Thomas of Macclesfield, L.
    Hunt of Kings Heath, L.Walker of Doncaster, L.
    Islwyn, L.Whitty, L.

    Resolved in the negative, and amendment disagreed to accordingly.

    8.55 p.m.

    Schedule 5 [ Adjudicators]:

    Page 118, line 8, at end insert—


    The Secretary of State shall make provision for ensuring that persons appointed as adjudicators receive appropriate training.").

    The noble and learned Lord said: While the Chamber is thinning I should say that I come to this Committee as a johnny-come-lately. I was not able to participate at Second Reading. Had I done so, I should have been broadly supportive of my noble friend's proposals in this Bill. Certainly I should have been duly deferential because I have no qualifications as an educationist and I have never been a member of an LEA. The nearest I can approach such a qualification is as the husband of a former school governor.

    The purpose of these amendments is to reflect the concern of the Council on Tribunals which I am privileged to chair. I am grateful to my noble friend for providing that the Council on Tribunals will exercise a supervisory role over adjudicators. This amendment reflects a long-standing concern of the council that those entrusted with the task of adjudication should be trained properly for that purpose. Those who are appointed adjudicators—whatever the method of appointment—are not likely to find themselves the beneficiaries of a sinecure. My noble friend the Minister and my noble friend Lord Peston said they hoped there would not be many appeals to the adjudicator. They may be right about that. They frequently are right on these matters. At that moment the noble Lord, Lord Pilkington, was in a less optimistic mode. I do not know who is right on that issue. However, I know that appeals are likely to arise when local objections are strongest, where controversy is most virulent and where those concerned are least open to conciliation.

    It has been said that the adjudicator will be invited to reconsider decisions of LEAs and of governing bodies; those most immediately accountable to local communities. That is not totally unique in our constitution. He will exercise a judicial role. I imagine it is hoped he will be in a position to review the situation dispassionately; to hear the arguments objectively; and to apply his knowledge of educational principles so as to produce a coherent result. Perhaps that is not always so simple for LEAs or governing bodies which are more immediately subjected to pressure from those who are most concerned in the matter. One of the problems of any democracy is that accountability is not always easy to reconcile with objectivity.

    I understand that the adjudicator will not be particularly knowledgeable about local conditions. I am bound to say that I never heard any of my noble friends in the course of these debates say anything to the contrary. Clearly, one of the virtues being claimed for the system of adjudicators is that they will be able to be rather more objective. They will not be so concerned with all the local political and social currents, and for that reason may be able to produce a more objective report.

    My concern in tabling this amendment is not to pass judgment on the merits of a system of adjudicators but, if there are to be adjudicators, to ensure that the system will work properly and fairly. I can testify from my own experience as a constituency MP that few issues evoke such outbursts of feeling as admission to a school which the parents see as their preference.

    Of this I am certain. The adjudicator will need a high level of skill, not only in controlling procedures, weighing arguments and reaching a reasoned conclusion; he will need to know how to defuse a very emotive situation, how to convince desperate parents that they have received a fair and proper hearing—and if, as I assume, at least some of the procedures are to be by way of a public hearing, how to retain control of a crowded hall when tempers are hot and insults fly.

    The noble Lord, Lord Tope, who for reasons which I understand is not in his place, pointed out that there is not a complete analogy with planning inspectors. There are some similarities. The inspector who has to conduct a public inquiry into a proposed ring-road or a cutting through a stretch of woodland is sometimes faced with an outbreak of passionate emotion. By comparison with the adjudicator, his job is a doddle. This is a subject likely to strike much nearer to people's hearts.

    Inspectors appointed to conduct local inquiries are now afforded proper training. I hope that no less a provision is intended for the adjudicators. I beg to move.

    9 p.m.

    This is another amendment that I should prefer not to be supporting because, as the noble Lord knows, I do not agree with this appointment. Nevertheless, if there is to be an adjudicator—and our judgment is that, given the kind of vote in the other place, even if we vote successfully on this side of the Chamber, there will be an adjudicator—I support all the points made by the noble and learned Lord, Lord Archer of Sandwell. This is an important post. It will be a very exposed post. The noble Lord's comparisons between the operations of the adjudicator and the way in which a planning inspector operates, are points well made and I support them.

    While the noble and learned Lord was speaking to the amendment, a question occurred to me in relation to a point made earlier by the noble Baroness about one of the advantages of the adjudicator not being of or familiar with the local area being to dispel any notion of his or her being parti pris. I therefore need to ask formally: will it be a condition of appointment that the adjudicator should not operate in the area in which he or she lives, or in an area in which he or she is familiar with the locality or with the key players in the education service such as schools, teachers, head teachers or the LEA?

    The noble and learned Lord made another important point. My understanding is that when a planning inspector takes evidence and goes into local communities to hear both sides of the case, those meetings are held in public. One can go along, sit in the building and hear what is going on. We have heard during our debates today that the routine meetings of the organisation committee will be held in public. Will the deliberations of the adjudicator also be heard in public? For example. it is my understanding that an adjudicator will normally carry out his or her duties on paper. That is stated in the background information that we have received on this measure. However, it is also possible for an adjudicator to call for evidence and to see the protagonists and antagonists in a case. It would be helpful to hear from the noble Baroness whether that process will also take place in public.

    It will be interesting to hear from the Minister exactly what adjudicators are to be trained in. As the situation has developed over the past few hours and we have learnt more about this system, it is clear that the close analogy is with the post of planning inspector. The Government are inserting into a system that has stood the test of many, many years a system of planning inspection in relation to the question of school closures.

    The Government have sought to defend that approach on the grounds that it is somehow an improvement in local control. That argument has been used by both Ministers during the course of today's debates. The word "devolution" was heard. Any word that came to hand which is approved by the latest Demos pamphlet was used to demonstrate the impeccability of these proposals. The reference is to local devolution. But the one thing in which an adjudicator must not be trained is local geography. So if a school closure comes up in Lincolnshire, appoint a man from Birmingham—or, even better, from Devon! He has not got to know about Lincolnshire. So the Member of Parliament for Lincolnshire will have the fate of his school decided by a chap from Devon. That will go down very well with the Member for Lincolnshire, who has addressed a huge packed meeting in his school hall the night before, with people marching and holding up banners saying, "Save our school". No, the chap from Devon is going to do it. He is going to be immaculately trained. He will know tribunal procedure. He will be like an inspector—pure. That is the system we are being asked to approve.

    The other phrase used by the Government is "democratic control". There is now a form of democratic control, as several noble Lords who have spoken today know perfectly well because they have been Members of Parliament and Ministers. When the question of school closures arises, the local Member of Parliament turns up and demands to see the Minister of the day. I dare say that the noble Baroness has received delegations involving people from the other place. I am sure that she has found time for that. She will know that that is a form of democratic accountability. That has totally gone out of the window with this proposal.

    If I or my party had dared to introduce this proposal when in government, we should have been blown out of the water by the party opposite. It is a most bizarre and extraordinary proposal, to insert a form of planning inquiry procedure into an area so politically sensitive as the closure of schools. I wait with bated breath to know exactly what the adjudicators will be trained in.

    Those who have followed the debate this evening will know that I and my noble friends, like the noble Baroness, Lady Blatch, would rather not be discussing this amendment because we do not believe in the system of adjudicators. It is rare that I find myself in virtually complete agreement with the noble Lord, Lord Baker, but on this occasion I do.

    Analogy has been made with a planning inspector. I wonder whether the Minister can let us know whether, as is the case with a planning inspector, the adjudicator will make a written report—"findings of fact", I believe it is called—which explains how the inspector reached his decision. If we are to have a system of adjudicators, they need to be trained; and one way to make them at least marginally accountable would be for there to be findings of fact as to the reason for the adjudicator's decision.

    My noble and learned friend Lord Archer speaks from a position of considerable knowledge, in spite of his modesty, as chairman of the Council on Tribunals. I am delighted to have this opportunity to thank him and the council for agreeing that there should be provisions in the Bill which would put adjudicators under the supervision of the council. I emphasise that we take the supervision of the Council on Tribunals very seriously. The council's guidance and its recommendations as to best practice will inform the procedures that adjudicators will follow. That provides a considerable degree of assurance for those who will be affected by decisions made by adjudicators.

    I thought that the somewhat sarcastic comments of the noble Lord, Lord Baker, were extraordinarily misplaced. I am sure that when my noble and learned friend replies to the debate he will put the noble Lord right and explain why it is that the Council on Tribunals will want to be involved in the training of adjudicators and what that training will involve. I acknowledge the concern that the council has, and which my noble and learned friend described very clearly, to ensure that there is appropriate training for adjudicators. We are committed to ensuring that all those appointed will be given appropriate guidance and training, both before they begin to consider cases and as part of a process of continuing development. I entirely agree with my noble friend that the job is certainly not a sinecure and that adjudicators will have to make judgments about complex matters dispassionately and objectively and ensure that locally people believe that they have had a fair hearing. That is extremely important.

    However, we do not believe that a requirement for training is appropriate to the face of the Bill. We believe that provision for supervision by the Council on Tribunals provides a sufficient safeguard and will ensure that adjudicators have sound and fair procedures. The noble Baroness, Lady Blatch, asked whether it will be a condition of appointment that adjudicators will not operate in an area where they have worked in the education system or have been involved in it in some way. It would be a little rigid to make that a condition of appointment. At the same time, just as in the case when a complaint is made about the police it is sometimes desirable to involve a police force from another authority to investigate the complaint, I believe, in spite of what the noble Lord, Lord Baker, said, that it makes a lot of sense for someone in a judicial role who is to look at a dispute of this kind dispassionately and objectively to come from outside the area. Chairmen of many different kinds of tribunals have to learn about the details of local areas. It is rather strange to suggest that intelligent people who are carefully selected to do this job after national advertisement are not able to acquire sufficient knowledge to make sensible judgments.

    The noble Baroness also asked whether the adjudicator will sit in public. He has the power to call a public inquiry, if he wishes, but he will do his work by examining evidence that is sent to him and by looking at all the papers. There will be a written report in which he will set out the reasons for his decision.

    The department's officials will consult with the secretariat to the Council of Tribunals about the detail of the training programme and on guidance to adjudicators. In making that clear, and in the light of that reassurance, I hope that my noble friend will feel able to withdraw his amendment.

    9.15 p.m.

    Before the noble Baroness sits down and following on from what my noble friend Lord Baker said—the noble Baroness easily brushed that aside—I pointed out that this is not a matter for the Council of Tribunals; it is a matter for the Government. Can the Minister say what are the criteria against which the decisions of adjudicators will be made? For example, in relation to a school closure the problem may well be the local authority's view on finance, educational opportunity or the preference and convenience of parents. What will be the criteria in such a case against which an adjudicator will judge? The adjudicator will need to know about such things before learning how to handle large meetings or quasi-judicial issues, which require a lot of training and are extremely difficult issues—I agree with everything the noble and learned Lord said. Have the Government decided what the criteria are? Perhaps I should know.

    Perhaps I can ask one further question because it is very relevant. The noble Baroness said that the adjudicator would not hold hearings in public, but that his decisions would be based on written representations. Is she saying that individuals, the authority or other interested parties cannot put their views to the adjudicator in an open session and that it must all be done in writing behind closed doors?

    Perhaps I can deal with the second question first. It will be up to the adjudicator, depending on the nature of the dispute and who is involved, to decide how he or she wishes to reach their judgment. It will be open to the adjudicator to hold a public inquiry and receive evidence in public. But it will also be open to them to do that on the basis of written evidence from those objecting to the original plan.

    In answer to the noble Baroness, Lady Carnegy, adjudicators will need to take into account a whole range of criteria. For example, they will look at demography and projections of numbers of children in any one area; they will consider the views of parents as expressed and look at the viable alternatives. They will also consider the different cost of different approaches. There is a whole variety of such factors that an adjudicator will want to take into account in reaching a decision.

    The noble Baroness and the noble Lord, Lord Whitty, in the course of responding to amendments throughout the day, have been saying conflicting things. The emphasis earlier was about the rationale for what the Government are doing; that is, devolving decision making locally. We now know that the decisions that go to the adjudicator will not be local.

    The noble Baroness screws up her nose at that statement. The Minister should now stop hedging one way or the other. Is the noble Baroness prepared to give an assurance to the Committee—I believe she has already done this—that it will not be a condition of appointment that the person must not operate in an area in which they are familiar with the schools, the demography, the local people involved, the head teachers and LEA members?

    Earlier the noble Baroness said that it would be of benefit if an adjudicator was not familiar with the area because that would dispel any notion of somebody being parti pris. That myth would be dispelled. Is the noble Baroness saying that somebody could be appointed in an area local to where they live, where they understand the demography, the geography and the local characters involved, but it may be a good thing if they are not? Surely by now the Department for Education and Employment has made up its mind about what are the criteria for making the appointments. Is the notion that it is better for everybody concerned—for those who may think adjudicators are parti pris—that they should not be familiar with the area in which they operate?

    Another side effect of appointing somebody arises. Is the adjudicator to be responsible for one, two or three local education authority areas? If so, they may be familiar with one of them but not the other two. I have already given examples of how very different one county is from another and the vast differences that there are within counties. The distance between north Lincolnshire and south Cambridgeshire is very great indeed. So it is possible to have someone from one local education authority appointed responsible for that area plus the adjacent one or two areas. In that case they are familiar with one part of their area and not another. It is absolutely essential that the Government make up their mind whether the person should be familiar or unfamiliar with the area in which they are to operate or whether they believe it important in policy terms that they should not be familiar with an area or that it does not matter.

    As regards local decision-making, we should have some consistency. Either the view of the noble Lord, Lord Whitty, prevails or that of the noble Baroness that at the end of the day, it is possible that the little school in Devon will have its decision made by someone from another county. It is very difficult to convince the people concerned that the decision was made in the name of bringing decision-making closer to the people. Nothing could be closer to them than their own local authority. But if it is to be taken by the third or fourth bodies that makes the situation very difficult.

    Perhaps I may now return to my noble friend Lady Carnegy of Lour who referred to the closing of a school. There is a philosophical and political bias against sixth forms in schools existing in many parts of the country. Many further education colleges are hungry to take the sixth-formers in schools. The decision to lose a sixth form in a school becomes very painful indeed. Where do such people go?

    I link that point to one that was made by my noble friend Lady Young. We asked questions as to whether the adjudicator will operate in public, which arose in points made by the noble and learned Lord, Lord Archer, when referring to the analogy with the planning inspector. I am not talking about formal inquiries rather along the lines on which the planning inspector operates. In this context we have to remember that the planning inspector is acting in the name of the Secretary of State. A very detailed report is produced which then goes to the Secretary of State and the decision is made by that Minister. I am referring to an adjudicator who makes a decision.

    There are two questions about that. Will the report produced by the adjudicator be as detailed, full and public as the report produced by a planning inspector? When the adjudicator decides to take oral evidence from a body of parents, the local education authority or interested parties in the community and which falls short of a public inquiry, will those occasions be made public? Is it to be an ad hoc decision for the adjudicator so that those meetings can be made public where one side wishes to put an argument and have closed meetings for the other side which wishes to put its points orally to the adjudicator and where the adjudicator deems that to be appropriate? If at the end of the day we end up with an adjudicator, it is important that we know in some detail how the adjudicator will operate.

    We have reached group number seven of the amendments on the Marshalled List and we have over 30 groups to go through this evening. It is now 25 minutes past nine. One of the reasons for this situation is that the noble Baroness speaks about four times on each amendment including those tabled by her fellow Front Bench spokespersons. She also asks a whole range of questions which have absolutely nothing to do with the amendment on the Marshalled List. The amendment we are dealing with is about training of adjudicators. I am happy to try to answer some of the noble Baroness's questions, but I hope that Members of the Committee will agree with me that we must make progress with the Committee stage of the Bill. On an amendment about training, we have had 15 different questions which have absolutely nothing to do with it and which could have been asked earlier when we were discussing other amendments; or if they were not asked then, they could be asked on Report.

    The noble Baroness suggested that there is a difference between what my noble friend Lord Whitty and I are saying. She is completely wrong. She has totally neglected the fact that earlier my noble friend was talking about school organisation committees, not about adjudicators. School organisation committees are part of the Government's new procedure for devolving decision-making locally. The adjudicator system is a national system that is to be set up to resolve disputes where issues cannot be settled locally. Nothing that either my noble friend Lord Whitty or I have said suggests any difference between us.

    The noble Baroness seems to misunderstand the system of adjudicators. They will not be attached to one, two or three local authorities. There will be about 20 adjudicators to cover the whole country. That is the purpose of the system. It would be over-rigid to make it a condition of appointment that, whatever the case, they would never operate in an area of which they have some knowledge. In fact, that would be patently ludicrous. At the same time, it is important, as I have said more than once, that they should not be parti pris but should make their judgments as dispassionately as possible. There may be many advantages in doing so if they come from a different part of the country.

    The noble Baroness also asked whether the adjudicator's report will be as full as that undertaken by the Secretary of State with regard to his decisions. The answer is yes; they must be just as full.

    We really must move on. In the light of what I have said on the issue of training, which is what this amendment is about, I ask my noble and learned friend whether he feels able to withdraw the amendment.

    I take personal offence at the remarks made by the noble Baroness. In Committee we are in the business of doing two things. We seek to solicit from the Government information which is not part of the Bill or part of the background papers. We are asking questions where we have a gap in our knowledge. This is most important when we reach the next stage.

    The noble Baroness said that my questions were not pertinent to the amendment tabled by the noble and learned Lord, Lord Archer. My noble friend Lord Baker of Dorking asked a question about training. We are anxious to know whether there will be reports and whether that will form part of the training. We are anxious to know whether evidence will be taken in public and whether that will form part of the training. We are anxious to know whether or not adjudicators will act locally. Those are very important questions, all of which are relevant to the issue of training.

    One of the hazards of being in government—I have been there myself—is that the Opposition have only these stages of the Bill in which to solicit such information. All of the points I have made have been entirely pertinent to the amendment tabled by the noble and learned Lord. In the event of there being an adjudicator system, I support the amendment.

    The questions which the noble Baroness has just asked about training are completely different from the questions she asked earlier. I am happy to respond to her questions; I want to be helpful. I also want us to make progress. I am sure that everybody in the Chamber would like us to make progress. I do not believe that we shall be able to do so if we continue as we have for the past four or five hours.

    Those who will take on the role of adjudicators will have to be trained in exactly the matters which the noble Baroness has just identified. They are all extremely important. The Government endorse what has been said about the need for training. Indeed, as I said, our officials will consult the secretariat to the Council on Tribunals about the details of the training programme. I think—the Government think—that it is right that expert advice should be sought on a matter as important as this. That is what we intend to do.

    I am grateful to all noble Lords who have participated in this debate. I am particularly grateful to my noble friend for concentrating on the merits of the amendment. I confess that the debate has ranged rather more widely than I envisaged. I fully appreciate the position of the noble Baronesses, Lady Blatch and Lady Maddock. They would prefer not to have a system of adjudicators. However, given that there is to be a system of adjudicators they both believe it is better that it operates well than badly. I do not believe that there is any great issue between us on that matter.

    I was invited to respond to the intervention of the noble Lord, Lord Baker. I hope he will forgive me if I resist the temptation, save to observe that although a planning inspector reports to the Minister, an adjudicator will make the decision for himself. I do not believe that that distinction should be reflected in whether or not he has local knowledge. Local knowledge is just as good or bad if one is reporting to the Secretary of State as if one is making the decision for oneself. But if we are talking about people who make decisions for themselves perhaps when a High Court judge whose home is in Devon next goes to Norwich Crown Court to try cases the noble Lord will address the same arguments to him and see what kind of reaction he receives.

    Turning to the merits of the amendment, I hope that the adjudicators will receive training in all the skills that are necessary for them to undertake their work. It will consist not only of analysing issues and controlling procedures, but matters such as taking evidence in public and formulating reasons for a decision when it is given. If there is to be training at all it is pointless if it does not include those issues. I am grateful to my noble friend for indicating that the Council on Tribunals will be consulted about that matter.

    I hesitate in relation only to one matter. My noble friend and I are entirely at one on what we should like to see happen. My noble friend did not say that she wanted this to be written into the Bill, which is the purpose of my amendment. However, it may be that we should both consider what has been said this evening and reconsider the issue at a later stage. For the moment, I am grateful for the indication that she has given and beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    9.30 p.m.

    Page 118, line 32, at end insert—

    (" . When taking any decision an adjudicator shall have regard (so far as relevant) to the obligations which, by virtue of—

  • (a) Part III of the Sex Discrimination Act 1975, or
  • (b) Part III of the Race Relations Act 1976,
  • are owed by any local education authority or governing body which will be affected by the decision.").

    On Question, amendment agreed to.

    On Question, Whether Schedule 5, as amended, shall stand part of the Bill?

    As I indicated earlier, I believe that we have already had this debate. I do not intend to pursue this matter any further tonight.

    Schedule 5, as amended, agreed to.

    Clause 25 [ School organisation plans]:

    Page 23, line 10, at end insert—

    ("( ) No school organisation plan prepared under this section shall include proposals to—

  • (a) discontinue sixth form provision at a particular school;
  • (b) introduce pupils of the opposite sex into any age group or teaching group in a particular school in which that school currently offers single sex education; or
  • (c) eliminate selection by ability, in part or in whole,
  • unless the proposals submitted within the school organisation plan have previously been accepted by the governing body and parents of the school concerned.").

    The noble Lord said: This amendment owes itself to the advice given to me by the noble Lord, Lord McIntosh. Out of pure generosity of heart, he advised me that I had tabled the amendment in the wrong place. I thought that in all honesty I should table it in the right place. No doubt the noble Lord will be able to assure me with the same conviction that he showed over the education development plan that this does not present any problem to Her Majesty's Government.

    I shall not dwell on these points. These matters are very precious to schools. If one discontinues sixth form provision one destroys the school. Single sex schools are very valuable. The way in which they select is of enormous value given the nature of the schools and their appointments. As a former headmaster presiding over schools, this amendment is close to my heart and I am grateful to the noble Lord, Lord McIntosh, for helping me to table it. This is a headmaster's amendment which hope the Government will be able to accept, given that the noble Lord, Lord McIntosh, assured me that there were no problems as regards the education development plan. I beg to move.

    The noble Lord must listen a little more carefully, if I may say that to a former headmaster. On 19th May, after explaining that there was no question of education development plans dealing with the matter in the amendment, I said:

    "If the noble Lord cares to put down an amendment to Clause 25 or a later clause, we shall consider it. But it is hardly for me to anticipate what will happen in the debate on those later clauses".—[Official Report, 19/5/98; col. 1506.]
    The noble Lord has, as is entirely his right, chosen to put down this amendment in relation to Clause 25. I shall seek to persuade him that it is in the wrong place. It may be helpful if I, first, emphasise the purpose of the school organisation plan. It is to provide a context against which subsequent proposals for change may be brought forward by proposers and considered by school organisation committees. I say that with due deliberation, because from what was said by the noble Baroness, Lady Carnegy, and the noble Lord, Lord Baker, it seemed that there was some confusion about what a school organisation plan does.

    A number of noble Lords on the Opposition Benches seemed to think that a school organisation plan sets out those matters which have in the past been matters for statutory proposals considered by the Secretary of State. The noble Lord, Lord Belstead, who was helpfully in his place on the previous occasion, reminded the Committee that changes such as those suggested by noble Lords opposite required, and still require, the publication of individual proposals.

    While under current legislation such proposals might be required for changes to selective admissions arrangements, the Bill's provisions handle that separately and we shall come on to them when we consider Clauses 94 and 98, for partial selection, and Clauses 100 to 102 for grammar schools. I have to say to the noble Lord, Lord Pilkington, that I said that on 19th May.

    We shall come shortly to discuss those clauses that deal with individual proposals. Under Clause 27, schools must publish proposals to make prescribed alterations to their schools. Among the changes that will be prescribed are changes of a year or more to the age range of a school and changing from providing single sex to providing co-educational education or vice-versa. Those are all matters brought forward again in the amendment.

    That means that it will not be possible to discontinue sixth form provision at a school, or to make a single sex school co-educational, without having proposals to do so approved through the new decision-making system. That is the local decision-making process.

    The new system will continue the current arrangements for publishing statutory proposals—in other words, the proposed change would have to be consulted on, and then published, with notices made publicly available, and various interested parties informed, including the governing bodies of any school affected. There will then be wide opportunities for comment and objection over a statutory two-month period before the proposals are put to the committee for consideration.

    The committee will consider the proposals in the light of any comments and objections, and take into account all views expressed in reaching its decision. It is not our intention that the school organisation plan should replace the arrangements for proposals for change to individual schools. That is the error in the placing of the amendment. The plan should supplement that process, and, in the way that we have already discussed, make more transparent the demographic and policy considerations that underpin such proposals.

    I hope that I can put the noble Lord's mind at rest about the extent to which the school organisation plan might deal with those issues. The local education authority will consult upon and publish a draft plan. There will be widespread opportunities to comment and to object. If there were to be any suggestion in a draft plan that, for example, school sixth forms should be removed, local schools and parents would have ample opportunity to comment and object, and the school organisation committee would have those objections before it.

    As to the admission of pupils of the opposite sex to a single sex school, I would expect the interests of particular religious communities also to be reflected at local level and that both LEAs and school organisation committees would take their wishes fully into account in reaching decisions. That is the point of local decision-making. Our aim is that there should be a local consensus, reflecting the wishes and needs of all parties, not that we should impose constraints. Individual schools have enough opportunities to make their views and wishes known.

    I hope that the noble Lord will not be too disappointed and will accept that the process of local decision-making infuses our thinking throughout the Bill and that his amendment is not appropriate at this place.

    I have not had the opportunity to hear all the debate today. However, I believe that the amendment strikes at the heart of the Bill. The noble Lord makes the point that the proposals should not be commented on by parents but that parents should accept the proposals put forward. Whether or not the amendment is in the right place, it seems helpful to have such words inserted in the Bill.

    Clause after clause takes powers away from parents and puts them in the hands of either appointed officials, LEAs or the Secretary of State. I have done a tally which no doubt the Minister can correct. There are 65 new powers and duties for LEAs, 71 new powers and duties for the Secretary of State, and 52 new regulatory powers for the Secretary of State. The noble Lord would be hard pressed to point to any new rights for parents of the children in the schools.

    On this side of the Chamber, we have fought for some time for the principle that the best people to protect the interests of children and educational standards are the parents of those children. It should be clear in the Bill—at either this point or at any other point in the Bill that the Government may decide—that no measures reducing the diversity of choice of schools available to parents should be enacted without the parents of the children of that school approving them. It is an important principle that we support.

    I am sorry that we have not had the benefit of the opinions of the noble Lord, Lord Blackwell, in our debates until now. If I had heard those comments before, I should have been able to say something more definitive about them, perhaps at a time when there would be more Members of the Committee present. It could have been raised at Second Reading. These are clearly important points. They deserve, and will receive from me, a considered answer in response to the statistics that he raises. He will understand that I am unable to respond to them off the cuff.

    However, the noble Lord gives expression to a profound misunderstanding about what the Government seek to do in this legislation. It is not that we are taking rights away from parents. On the contrary, the search for a local consensus involved in the school organisation committee has to be considered in the light of the composition of the school organisation committee. If we had been simply returning power to local education authorities, we would not have had a school organisation committee with an elaborate procedure for consensus, for blocking votes from religious communities, and with membership from governing bodies including parent governors. We would not have had any of the difficulties that have taken up so much time in drafting changes in the past few hours.

    What is fundamentally different is that the decision shall be taken at local level, as far as possible on a consensus basis, including parents, parent governors and other governors in that decision process, rather than by the Secretary of State. I long to join in the wider debate raised by the noble Lord, Lord Blackwell. However, I have to return to my point: that this is not what school organisation plans are. The protection of the process of proposals, consultation and decision-making still exists for the issues raised in the amendment.

    I admire the noble Lord's honeyed words. They managed to perplex a large number of my colleagues when I put forward the amendment. I have had to run seminars to tell them what the noble Lord was saying.

    The fundamental point of the amendment is to give parents the right to decide over sensitive issues. As the Minister knows, we on this side of the Chamber have considerable doubts about school organisation committees and adjudicators. We therefore want written on the face of the Bill support for certain sensitive areas such as sixth forms, the style of the school decided by admission and single sex. The noble Lord has not submitted grammar schools and similar matters to the local authority. The Government have established balance, which we shall discuss later. The parents of the county or the area will decide. We are suggesting that in certain other areas parents decide. This is not a Bill that removes parental choice. It allows it over grammar schools, and we are extending it to other areas.

    I am not satisfied with the noble Lord's answer, as I was not previously. He knows as well as I do that if it goes on the surface of the Bill, the school organisation committee, the adjudicator, can do nothing about it. It is safe. It is set in tablets of stone. Therefore, I wish to test the opinion of the Committee.

    9.46 p.m.

    On Question, Whether the said amendment (No. 109B) shall be agreed to?

    Their Lordships divided: Contents, 16; Not-Contents, 43.

    Division No. 2


    Blackwell, L.Lucas, L.
    Blatch, B.Northesk, E.
    Byford, B. [Teller.]Pilkington of Oxenford, L.
    Carnegy of Lour, B.Rowallan, L.
    Carnock, L.Seccombe, B. [Teller.]
    Chesham, L.Swinfen, L.
    Lauderdale, E.Wise, L.
    Leigh, L.Young, B.


    Berkeley, L.Lockwood, B.
    Blackstone, B.McCarthy, L.
    Burlison, L.McIntosh of Haringey, L. [Teller.]
    Carter, L.
    David, B.Maddock, B.
    Davies of Coity, L.Mallalieu, B.
    Davies of Oldham, L.Milner of Leeds, L.
    Donoughue, L.Monkswell, L.
    Dormand of Easington, L.Newby, L.
    Dubs, L.Nicholson of Winterbourne, B.
    Elis-Thomas, L.Nicol, B.
    Farrington of Ribbleton, B.Orme, L.
    Gallacher, L.Ponsonby of Shulbrede, L.
    Gilbert, L.Puttnam, L.
    Gordon of Strathblane, L.Ramsay of Cartvale, B.
    Grenfell, L.Renwick of Clifton, L.
    Haskel, L. [Teller.]Scotland of Asthal, B.
    Hollis of Heigham, B.Taylor of Blackburn, L.
    Hoyle, L.Thomas of Gresford, L.
    Hunt of Kings Heath, L.Thomas of Macclesfield, L.
    Islwyn, L.Thomas of Walliswood, B.
    Jay of Paddington, B.Whitty, L.

    Resolved in the negative, and amendment disagreed to accordingly.

    9.53 p.m.

    Lord Lucas moved Amendment No. 110:

    Page 23, line 19, at end insert—

    ("( ) A school organisation plan must set out the ways in which diversity in the style and type of education offered by the schools in the area will be maintained or increased, and the ways in which parents and pupils will be enabled to take greater advantage of such diversity.").

    The noble Lord said: In moving Amendment No. 110, I shall speak also to Amendment No. 110A. These are clearly probing amendments. The issues which they cover are dealt with specifically in Clause 25(3). I do not expect the Minister to accept the idea that any alteration should be made to the Bill at this stage. However, I hope that he will take the opportunity to expand on Clause 25(3) and to explain in particular how it covers the points raised by the amendments.

    Amendment No. 110 addresses the question of diversity. Any school organisation committee, local bureaucracy or local organisation of this sort will tend towards simplicity and towards things which are easily comprehensible and controllable. In the past when LEAs have had control over this sort of thing they have tended to be against diversity. Since they will not have quite the control over diversity which they used to, they will control ways in which parents can make use of that diversity.

    Jumping ahead, a later amendment, Amendment No. 241, deals with school transport. That is one of the main mechanisms which LEAs use to control access to schools. I shall take the concrete example of schools around Winchester, which I happen to know. Hampshire is not a bad LEA and pursues relatively benign policies. But within Winchester there are three good secondary schools, all, I would say, on a par academically, all with very different characters. Different children will do better in different schools, and parents who take the trouble to look at all three will develop a strong preference for one or the other. They are all within half a mile of each other but, depending on where you live, you can get a bus to only one of them. No effort is made by the local education authority to enable parents to send their child to the secondary school of their choice. If they choose a different secondary school from the one they are allocated they have to do the entire school run themselves. So it is only those parents who can afford to do that—and there are plenty of those around Winchester—who can take advantage of the diversity.

    I do not want the Government to spell out any specific nostrums in the Bill, or indeed in the regulations, but I should like them to encourage local authorities to enable parents, where possible, and where it can be done without undue inconvenience, to take advantage of the existing diversity.

    In Amendment No. 110A, at the invitation of the noble Lord, Lord McIntosh, earlier, I turn to the question of the consideration which should be given to expanding popular schools. I do not have any difficulty with what Hampshire has done in this regard. But in the case of some of the excellent state secondary schools, particularly around North London, there has been a long history of the local education authorities not putting money into those schools and expanding them but insisting instead that the money should go into the schools that the parents do not want to use. Parents can like it or lump it, there should be only so many allowed in Camden Girls and that is it.

    I detect from what the noble Baroness said on Second Reading that there is an understanding in government that support for popular schools, enabling them to expand where that is what the schools want and what local parents want, is an admirable objective. Even if it may mean that other schools shrink, that is not necessarily a bad thing. I hope that the noble Lord, Lord McIntosh, will feel able to give me some comfort that LEAs and school organisation committees, in particular, will be signed in this direction by what the Government choose to put in the regulations. I beg to move.

    As we stagger on, oh so slowly, from school organisation committees to school organisation plans, and as it seems that a member of a local education authority, a person nominated by the Diocesan Board of Education by any diocese of the Church of England, and a person nominated by the Bishop of any Roman Catholic Church are the only people guaranteed a place on such committees. I wish to speak to Amendment No. 111 in the forlorn hope of securing some reference to special educational needs in these new arrangements for organisation of schools.

    This amendment would have the effect of ensuring that alongside the draft school organisation plan that is submitted to the school organisation committee—if they eventually exist—there would be an explicit assessment of the impact of the draft plan on provision for children with special educational needs. Excellence for all children—it is such a little thing to ask.

    10 p.m.

    I am glad to be able to support the noble Lord, Lord Rix, on this amendment, especially as I felt compelled to oppose an amendment which he moved on a previous occasion. It seems to me to be entirely right that, at this point in the Bill, there should be specific reference to special educational needs in relation to the draft plan. We are all aware that it is always easy to overlook children who have special educational needs in these days when so much emphasis is laid on the meeting of high targets and the establishment of high standards.

    It is perfectly possible to have high standards in relation to children with special educational needs. The noble Lord, Lord Rix, may be interested to know that a society of which I am chairman—the National Society—which originally founded many of the schools that have become church schools, has just set up a fellowship to study the whole area of the spiritual and moral development of children with special educational needs. The Churches have a strong concern in that respect. I would personally be very glad to see this particular amendment on the face of the Bill.

    I should like, first, to support Amendment No. 111 as proposed by the noble Lord, Lord Rix. We had a long argument some time ago—it seems like six months ago, but it was not actually as long ago as that—on the inclusion of the word "all" to emphasise the Government's stated commitment to the welfare of children with special educational needs.

    It seems to me that this is an absolutely perfect place for us to make that commitment plain on the face of the Bill. It would satisfy many people who have been trying to amend various parts of the legislation if we were to get that commitment clarified on the face of this Bill. Therefore, on those grounds, I appeal to the Government to at least give the noble Lord, Lord Rix, and all those who are concerned about such matters, some comfort by saying that they will at least take the matter away and consider it as being a potential way of satisfying that demand. Indeed, it would be most useful if local authorities had to show how their proposals would affect that very vulnerable group of people. Of course, not all of them are vulnerable; some of them are just difficult and they also have to be coped with.

    Secondly, I turn to Amendment No. 110, tabled in the name of the noble Lord, Lord Lucas. At the end of the noble Lord's opening remarks, I was quite uncertain as to whether he was talking about the possibility of having a large number of different sorts of schools or whether he was talking about being able to have the same sort of school, organisationally speaking, delivering different nuances of education. In other words, I am not quite certain as to whether the noble Lord's proposal would enable more schools of a different kind to be developed or whether his amendment addresses the question of educational diversity—that is, diversity in the classroom. If it is the latter, then I believe the noble Lord has made an important point.

    One of the tragedies that is taking place today because of the demand for high standards, and their measurement by examination results throughout the system, is that diversity of provision which, after all, has to respond to a wide range of different sorts of pupil—for example, those who develop at different speeds, and so on—is in danger of disappearing. We need to pay more attention to the diversity of education within our existing schools. I am really not interested in a huge organisational change regarding whether or not such schools are of one sort or another. However, I am interested in maintaining diversity of provision. If that is what the noble Lord is talking about, I believe that he has made an interesting and important point.

    I should like briefly to support the amendment proposed by the noble Lord, Lord Rix. As the Minister knows, special educational needs have occupied the education authorities of this country for a considerable amount of time this century. We are entering into a difficult area, but I felt on Second Reading that perhaps the Government had not given enough attention to the concerns expressed by the noble Lord, Lord Rix, and my noble friend Lord Swinfen. I am sure that that is unintentional, but I believe that considerable thought should be given to what the noble Lord, Lord Rix, has said. It is a very sensitive and delicate area. There has been much controversy about how one copes with this.

    The noble Lord, Lord Rix, is right to say that the matter should be mentioned on the face of the Bill. I said at Second Reading that I felt that not enough attention was given to the concerns of the noble Lord, Lord Rix. I hope that the Government will be able to address the issue.

    I agree with what the noble Baroness, Lady Thomas of Walliswood, said in support of Amendment No. 110 in the name of my noble friend Lord Lucas. I shall not go further into that as it is getting late. I also support Amendment No. 111 to which my name has been added. As already mentioned, one-fifth of school pupils have special educational needs, a surprisingly large number. It is absolutely essential that school organisation plans take that into consideration. It should be made plain to schools how they are to deal with the matter. The Green Paper on excellence for all children indicated that regional plans may be drawn up with regard to special educational needs. How will schools take those regional plans into consideration? Will they have a duty to do so?

    I am happy to respond to all three amendments. I recognise the good intentions of all of them. I do not wish to repeat what has been said about school organisation plans. However, I must say once again that they are an important part of the new arrangements for local decision making on school organisation, not because they replace the proposals for change for individual schools but because they provide a context in which those proposals can be submitted and considered. The preparation of a school organisation plan will be subject to consultation. It will be published and there will be opportunities to object to any of its content. In that way we can reflect the developing consensus and partnership at local level which is at the core of our policy. It is therefore at the core of my response to each of these amendments.

    The essential point is that we intend the school organisation plans to be drawn up at local level. The more these plans comprise concessions and even agreement with particular interest groups such as special educational needs—"interest group" is far too narrow a description for a movement which permeates all our views on education—and the more we agree further elements to a school organisation plan in addition to what is prescribed on the face of the Bill, the more we move away from the fundamentally local character of the school organisation plan. We have said that we do not intend to be over-prescriptive. We expect a school organisation plan to include demographic information and statements of policy relevant to the provision of places as the basis for reaching conclusions on the need to add or to remove places within an authority's area. We expect the plan to make a specific link between the organisation of school places and raising standards. Beyond that the plan should cover those issues which seem to LEAs and to school organisation committees to be relevant to the provision of places in their area. It should reflect local concerns and the views of local partners on the provision of school places.

    I now turn to Amendment No. 110 in the name of the noble Lord, Lord Lucas. I refer to the point made by the noble Baroness, Lady Thomas of Walliswood. Diversity can mean two things. It can mean diversity as regards different kinds of organisation of schools or as regards the educational ethos of a school. The previous government used diversity as a cover-up for an attempt to get schools away from local authorities into the grant-maintained sector and under the direct control of the Secretary of State and the Funding Agency for Schools. Therefore "diversity" has to be a dubious word so far as we are concerned.

    However, leaving that on one side, of course we agree with the noble Lord. We want a system in which schools, as autonomous institutions, whatever their organisation or category, can develop their own strengths within a framework that treats all schools equitably. There is no place for arrangements under which schools compete with each other to cream off certain groups of pupils.

    The school organisation plan will provide an opportunity for an agreed local vision in relation to the provision of school places. The procedures for consulting on and agreeing to the plan will provide an opportunity for individual schools to say whether the plan is consistent with the way in which they want to develop. That is the only way in which I can see diversity being achieved. The plan itself, in particular the material on demographic change, will contribute to the schools' own planning. I suggest to the noble Lord that that is a step forward. It reflects the fact that these are issues that should be resolved locally. We propose not to be too prescriptive.

    On the matter of popular schools, the same argument applies. Yes, of course there are advantages and difficulties in expanding popular schools. As the noble Lord, Lord Lucas, said, it is not always a bad thing that that will result in falling rolls in other schools—although it could be a bad thing, as I think the noble Lord will recognise. We expect local education authorities to balance supply and demand in relation to school places in so far as that is possible. This is nothing new. It has been happening in education authorities since they began in the last century. Supply and demand in school places has always been a difficult balance to strike. The key must be that the local authority, the schools and the parents in an area should decide how far the school organisation plans cover that issue, rather than having it placed on the face of the Bill.

    I now turn to the question of special educational needs. I was glad to have confirmation from the noble Lord, Lord Rix, that he recognises the importance of the Green Paper, Excellence for all children. As I think the noble Lord will know, the department is working with representatives from local education authorities and other organisations to set up regional pilot projects which will explore how to take that forward.

    I can say to the noble Lord, if it helps him at all, that regulations will provide the broad framework for the content of school organisation plans. However, we believe that the place to cover the content in any detail is in guidance that we intend to give to local education authorities, including advice on how the plan should reflect provision for pupils with special educational needs. But again, it is guidance rather than regulations, and even more so, rather than by accretions onto the face of the Bill. We believe that that will provide an opportunity to build on the work that is about to start in the pilot areas. We are open-minded about it: we know that these are pilots. Although we think that guidance is the best approach, if in the future it appears that school organisation plans do not satisfactorily reflect proposed provision for pupils with special educational needs, we can make further regulations governing the content of plans.

    However, the over-arching arguments for agreeing the plan locally are also important. I hope that we can reassure noble Lords who have put their names to this amendment that this is the way in which special educational needs concerns can best be addressed. There will be a draft plan with wide opportunities to comment and object. At that stage, if not before, there will be opportunities for special educational needs groups to offer explicit views on the impact of special educational needs provision on the authority plan. The authority will be obliged to pass any such comments on to the school organisation committee when it comes to the school organisation plan.

    In the interests of maintaining local responsibility, while recognising the virtue of the thinking behind these amendments, I urge Members of the Committee not to press them.

    10.15 p.m.

    Before the noble Lord sits down, I wonder whether he would like to reconsider a statement he made in response to the important amendment standing in the name of the noble Lord, Lord Rix, when I think he described special educational needs and those representing them as an accretion on the face of the Bill. I wonder whether that is how he views pupils with special educational needs. Most of us who take education seriously would not describe pupils who fall into that category in that way. I do not think it helps the Government's case to do so.

    I think the noble Baroness detected that I realised that my wording was unfortunate as I was speaking. I sought not to cause offence to anyone concerned, as all noble Lords are, with special educational needs. The noble Baroness is right. The thinking about special educational needs must permeate our educational thinking. If I used any words which went against that, I apologise to her and to the Committee. I do not apologise for using the word "accretion", which is an objective word; it describes putting something else on the face of the Bill. I would rather not do that, for the reasons I explained.

    First, I thank the right reverend Prelate the Bishop of Ripon and other noble Lords for their wholehearted support of Amendment No. 111 to place special educational needs at long last in an important part of the Bill. Unfortunately, the response of the noble Lord, Lord McIntosh of Haringey, is once more disappointing.

    The noble Lord said that after due consideration it might be necessary to bring in special regulations because the Government are open-minded. I think that that holds out only a crumb of hope. The special educational needs consortium, which I have the honour to represent, is composed of many important national charities, education authorities, local authorities and teaching unions, all of whom subscribe to the amendments that I have put forward, together with the noble Lord, Lord Swinfen, and my noble friend Lady Darcy de Knayth.

    The Government seem to regard special educational needs as a local difficulty. I was glad that the noble Lord, Lord McIntosh of Haringey, selected special interest groups with rather more care than did another noble Lord on the government Benches earlier today. But he said that it was important to keep the local character of school organisation plans in place. I would have thought that special educational needs locally were of the utmost importance. I cannot believe that they can be thought of as not being local. If they are not local, where do they belong? In outer space? Are those with special educational needs to be once more proscribed in regard to education as they were until 1971? I find the Government's resistance to putting the special educational needs problem on the face of the Bill extraordinary. Whatever the noble Lord, Lord McIntosh, says now, whatever any other noble Lord on the Front Bench may say, it gives the impression to those of us who are trying to work with children with special educational needs that such children are somehow still regarded as second-rate citizens. I shall return to this matter at Report stage.

    The noble Lord, Lord Rix, did not formally move his amendment; it is being considered with others in the group and perhaps therefore I can say a word in relation to his remarks. Of course, special educational needs is an issue which occurs locally and in every locality. I was not in any way seeking to deny that. I was saying that solutions may vary and the solutions should be determined locally.

    When the Minister first replied, he mentioned that pilot schemes either had started or are about to start. There must therefore be draft guidance available for those schemes. Is it possible for those of us who have taken part in the debate to be given a copy of that draft guidance?

    All information about pilot schemes will be made available. If I may, I will write to the noble Lord, Lord Swinfen—since he raised this specific point—with copies to all other Members of the Committee who have taken part in the debate and I will place a copy in the Library.

    I am grateful to the noble Lord, Lord McIntosh, for his remarks, particularly the last one. I look forward to reading it and, if necessary, returning to the matter on Report. I understand what the noble Lord said about preserving local character. The emphasis of my interest therefore changes to what the mechanisms are for groups of local people to make representations in order that their views can be considered. As I understand the Bill as it stands, it is necessary to wait until a local education authority produces its plan; there is then a once-round of ideas coming into the committee and out. I see the noble Lord shaking his head.

    Local views will be welcomed at all stages in the preparation of the school organisational plan.

    In that case, all I want to hear from the noble Lord—either now or later—is how that will be organised, asked for or done. Are we to have guidance or regulations for the local authority? It is not on the face of the Bill that there should be consultation or input before the LEA produces its plans. Is that something to which I shall need to return on Report?

    My immediate reaction is how a local authority or schools organisation committee could stop local people expressing their views at any stage.

    Of course, they could not. But unless the committee invites it, such representations are likely to be disjointed in time and disorganised in form. It would be much better if there was a period during which representations were invited. I do not see provision for that on the face of the Bill. However, I shall not press the matter tonight and beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 110A and 111 not moved.]

    Page 23, line 33, at end insert—

    ("( ) requiring that the draft plan shall not be approved by the school organisation committee, or referred to the adjudicator, if the representatives of the relevant diocese or dioceses of the Church of England for the area of the local education authority, or the equivalent representative of the Bishop of the Roman Catholic church concerned, are opposed to the proposal;").

    The noble Lord said: This is a non-political amendment though it has considerable sensitivity.

    I am assuming, in the case of this amendment, that in view of the large majority Her Majesty's Government have in the other place, and in light of the action they have taken this afternoon, they will carry the Bill through the other place almost intact. I cannot speak for what we will do, but for the sake of the amendment let us assume that the Bill goes through as it stands.

    As the Minister and her colleagues know, denominational schools in England have always been a sensitive issue. When Mr. Gladstone first introduced the education Bill in 1870 he preserved the position absolutely of denominational schools. That was continued in the 1944 Act.

    Denominational schools provide particularly for Roman Catholics, but also for many Anglicans. For Anglicans—I speak as an Anglican clergyman—they provide a community role in rural areas, but in urban areas they provide a specific focus for those who want to go to schools where that faith is established, as I recognise in the part of London where I work.

    As Members of the Committee know from the long and arduous discussions this afternoon, the schools organisation committee consists of four colleges of which one is a representative of the Roman Catholic and Anglican Churches. If they are not unanimous—in other words, if the denominational schools object—they do not have a right of veto; the decision goes to the adjudicator.

    As Members of the Committee know, Scotland is outside the scope of the Bill. This measure has caused considerable worry to the Roman Catholic Church in that Cardinal Winning is resisting the closure of schools in certain parts of Glasgow. I hardly need point out to Members of the Committee opposite that this is an area of sensitivity.

    I realise that on page four of the adjudicator's instructions there is the possibility of individuals having the right of appeal to the Secretary of State, but they do not refer to the closure of schools or similar matters. My amendment restores the tradition of English education from, as far as I know, every educational Act that gives denominational schools the right of veto. In other words, if the closure of a faith school is involved then that does not go to the adjudicator.

    I put forward the amendment in the spirit of 150 years of education during which, in contrast to the Continent, we have avoided conflict between Church and state over such issues. I recommend the amendment to the Committee. The right reverend Prelate will speak with more authority. I have discussed it both with Roman Catholics and members of my own Church. I believe that it meets with their approval. I hope that the Government will accept it. I believe that it will not cause problems. The issues will arise very rarely. The Minister would be following the tradition of Mr. Gladstone. It is a noble tradition which I am sure the Minister would wish to follow. She may get wreaths on her own grave later on. I beg to move.

    I welcome the amendment. I thank the noble Lord, Lord Pilkington of Oxenford, for moving it. I thank other noble Lords opposite for giving it support by putting their names to it. I have already argued the importance of school organisation committees and of the significance of both the Church of England and the Roman Catholic Church having a strong voice and indeed having the power of veto on those committees.

    I should perhaps comment that, as I understand it, the amendment is a permissive one—that is to say, the regulations are those under subsection (5) which may make provision requiring certain things to happen. So the amendment as it stands simply empowers regulations to say that this may be the case. Amendment No. 106B, to which we have already agreed, makes it mandatory for all bodies on a school organisation committee to reach a unanimous decision. That is mandatory whereas this amendment is permissive. However, it provides a further protection for denominational schools as the noble Lord, Lord Pilkington, made clear.

    Plans would not be referred to an adjudicator if either of the Church bodies objected to that happening. That raises the whole matter of the role of the adjudicator. What powers is he to have? I believe I heard the noble Baroness, Lady Blatch, put that question earlier. It seems to me that this is a proper place for that question to be put. To what issues or to what representations will the adjudicator be required to have regard? It is perfectly possible that the future of Church schools in the neighbourhood could be in the hands of such a person. The Churches need to be assured of the way in which those powers are to be exercised.

    The noble Lord, Lord Pilkington, will be reassured to know that on this occasion I speak on behalf of the Roman Catholic Church as well as on behalf of the Church of England. I spoke with a representative of the Catholic Education Service this morning who in turn has spoken with the cardinal. I also speak on behalf of the right reverend Prelate the Bishop of London who is not in his place this evening. He had hoped to make a contribution to this amendment. He has written to me and with your Lordships' permission I will read what he says:
    "The Churches are keen to continue the real partnership which exists between faith communities and other providers of educational services. Our intention is to serve local communities by co-operating in the drive for educational excellence and by developing an explicitly Christian ethos in our schools as a contribution to genuine pluralism. As the Bill is currently drafted, the new post of adjudicator will have very wide powers. These may be restricted on a temporary basis by regulation, but could it not be the case that the powers of the adjudicator might be used to force changes in admissions policies without further primary legislation? Whilst there is confidence that the present administration intends no such thing, there is always the problem of the new Pharaoh who knows not Joseph. This is a cause of concern to the faith communities. Although we would anticipate that the proposed veto on references to the adjudicator would only be very infrequently used, we would support Amendment 112 as a safeguard to the continuation of the current genuine partnership in education".
    That letter sums up the concerns of the Churches, to which I have already given expression. I shall be most interested to hear how the Government respond.

    10.30 p.m.

    As we have already made clear, the focus of the arrangements for deciding school organisation plans and proposals at local level is to support local partnerships. The arrangements that we propose, in particular requiring unanimity within the school organisation committee, reflect the balance between providers. They give each provider, including the Churches, the same ability to ensure that an individual proposal or a school organisation plan is referred to an adjudicator in the case of disagreement. The objective is to reach consensus. We believe that in most cases that will be achieved within the school organisation committee through discussion reflecting the views of local people in response to the draft plan. We are appointing the adjudicator to address those cases where the school organisation committee is unable to agree.

    However, it would not be appropriate to give two particular groups within the school organisation committee the ability to prevent the agreement of school organisation plans. The Church representatives will have as much power as any other group in the committee to secure that plans are passed to the adjudicator. They will each have opportunities to offer the adjudicator options with which they are content, but there must be a genuine opportunity to decide a plan that balances the views of all partners and in the agreement of which each of the partners has been treated in the same way.

    The right reverend Prelate rightly referred to the fact that regulations under subsection (4), which are set out in subsection (5), are permissive in the sense that the Secretary of State is not required to issue such regulations, but Clause 25 is not about Church or denominational schools; it is about all schools. The amendment would give two groups (of all those which comprise the school organisation committee) representing the denominational interest a veto on all aspects of the school organisation plan, irrespective of whether it relates to denominational schools. I am afraid that the amendment would unbalance the partnership which is at the heart of our proposals and I invite the noble Lord not to press it.

    Before the noble Lord sits down, may I press him on the powers of adjudicators and on how the issues with which they will have to deal and the representations to which they shall have to pay attention will be spelt out? Where will that appear?

    We considered the powers of the adjudicator on Clause 24 and I do not think that at this time of night the Committee will be grateful if I go over that ground again. However, if I think that I can helpfully say anything new to the right reverend Prelate, I shall gladly write to him on that point.

    I agree with the noble Lord that this is not permissive; it is direct. I accept that it would give a right of veto to denominations. This is well within the tradition of English education. It has been done on many occasions before. In not allowing it, Her Majesty's Government are making quite a departure. Historically, the Churches have not used their considerable power to question state plans. For example, when comprehensive education began, the Roman Catholic and Anglican Churches accepted it as state policy. They believed their task to be to maintain their denominational schools. They are not just one group among many. The Roman Catholic Church both here and in America has always regarded parochial, denominational schools as a very important part of its work. The Anglican Church is somewhat different but in many areas it takes the same view. I do not believe that the noble Lord has addressed the problem. It was one that Mr. Butler addressed in 1944 with greater sensitivity. Unless we have particular regard to church schools, this is a secularising measure.

    I do not press the amendment now but shall return to it with some force at Report stage. Like the right reverend Prelate, I have spoken to both Roman Catholic and Anglican authorities. I do not speak here as a Tory Front Bench spokesman. I never wear my dog collar in this House because I do not feel that I can attach the Almighty to many of the policies that I espouse, unlike some other people. However, on this issue I am metaphorically wearing my dog collar. I feel quite strongly about this and believe that many noble friends support me. This issue falls well within the history of English education. I hope that the noble Lord will rethink his rather secular approach. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 25 agreed to.

    Clause 26 agreed to.

    After Clause 26, insert the following new clause—