There was a suggestion before the break that it might be helpful to the Committee if I indicated where I hoped we might move to this evening. When we began today, there were 17 groups of amendments to consider. The agreed suggestion as to the objective of this evening, which has been widely discussed with the usual channels and many other Members who have been involved in the debate, was that we should aim to get to Amendment No. 180. In order to achieve that objective, we would need to deal with another 11 groups. Therefore, a sensible suggestion, which I hope will meet with agreement, is that we should carry on until midnight, when I would guess that we would have dealt with most of the 11 groups. The objective remains for us to get to AmendmentNo. 180, which will leave a reasonable amount of time to deal with the remaining groups. I hope that that meets with the approval of the Committee.

It does not meet with my approval. I think this is completely outrageous. It is a hole that the Government have dug for themselves through not listening to the Opposition parties who told them from the start that this was a highly contentious Bill, that we were totally dissatisfied with many of the replies we had had from Ministers in another place, and that it would require six days for Committee stage. The Government insisted on only scheduling four and now they are asking us to act in complete contravention of what the House has voted for—in other words, to rise at 10 o’clock, which is a time at which some of us can be compos mentis and deal with the business in a sensible and rational manner. Instead we are being asked to go until midnight which is completely outrageous.

I agree with the noble Baroness, Lady Walmsley. The noble Lord knows what my opinion is about going to bed at 10 o’clock. The Companion to the Standing Orders says it is a firm convention, although the noble Lord says it is a firm convention sometimes, and I might agree with him. The management of the business is absolutely atrocious. I have never seen so many amendments grouped together. When you have a number of speakers with different amendments, you are bound to get a long debate on each of these topics. It is time that the business managers looked to managing the business properly.

In support of the noble Baroness, Lady Walmsley, what is settled between the usual offices is not well communicated to those of us who are not privy to their discussions. If I had known in advance we were going to sit until midnight, I could have made arrangements. As it is, I am not sure I am going to get home. I would have thought that 11 o’clock would suffice, given the relatively small number of amendments to be taken on the final two days.

I rise briefly in response to what has already been said. While I sympathise with the noble Lord, Lord Dearing—perhaps there should have been better communication with the Cross Benches—I point out that in eight years now of sitting on this Front Bench we have sat regularly until the early hours of the morning. I know that that is not the convention now, but there is a feeling that we do want to try and complete the Committee stages of this Bill prior to the Recess. It suits us on these Benches. While apologising to those who may feel that this is inconvenient, I must express my agreement to the proposal, notwithstanding the fact that it is not now, although it used to be, normal convention.

The Committee will understand that the job of the usual channels is a difficult one. We do the very best we can and one thing I am not modest about is that from the beginning of my tenure as Chief Whip, it was determined that I should try to give notice to the House of everything I possibly could, and most crucially that I should notify the House a year in advance of Recess dates. I was advised not to do that by all the wise heads because I was told we would occasionally find ourselves in a situation where, in order to meet the Recess date, we would need to sit a little later. And the proposal is, I emphasise to the House, a little later. The 10 o’clock rising time is an advisory rising time and can only be met with the co-operation of the House. We are a self-regulating House and I have no powers of authority over anyone in the House but that rising time has been met spectacularly well this Session. We have rarely sat long beyond 10 o’clock.

I genuinely apologise to the noble Lord, Lord Dearing, but he will understand that this is an extremely important Bill. I worked in education myself. You cannot calculate how long Bills will take; all we can do is estimate. We have no powers to do anything other than estimate that the groups on this Bill on the first two days would take an average of35 minutes per group. Of course people involved in the Bill will say that that is an extremely important Bill and it will take a long time. The Police and Justice Bill, for example, took 20 minutes per group and everyone involved would say that was dealing with extremely important issues. I apologise to the House that this has inevitably meant that we go a little later tonight than I would have liked. It is extremely rare for this to happen. I stay here every night until the cat is put out so I have a greater vested interest than anyone does in completing the matter.

Will the noble Lord give way?

I am just about to finish, so the noble Baroness can contribute later. I simply say that we will get to the objective group tonight with the agreement of the Committee, which I seek—that is all that I can do. If we do not do that, we will not have achieved our agreed mutual objective of being a self-regulating House that can reach a reasonable objective at a reasonable time.

Will the noble Lord accept that there was an unusually long gap between Second Reading and the introduction of Committee on this Bill, and that large tranches of the Bill re-enact other legislation, so it does not need to be as large as it is? Will he also accept that the Government have already had considerable co-operation from these Benches? We have already agreed to these strange and enormous un-homogenous groupings and to sit late on the first two days of Committee. We also agreed to postpone a section of the Bill to be treated as Committee on Report, but I understand that the Official Opposition would not agree to that. To ask us to sit to midnight is asking us to go one step too far. I do not want to be obstructive to the House getting the business through; I want us to scrutinise the Bill properly. In the interests of doing that, I am afraid that I will regretfully have to accept what the noble Lord the government Chief Whip has proposed.

I want to explain briefly why we were not happy delaying scrutiny of certain parts of the Bill until Report. I fear—I hope that other Benches will accept this—that that would set a very dangerous precedent. It would put us on the path to what is happening in the Commons, which is not properly scrutinising at each stage. That was entirely my reason, and I hope that the noble Baroness will accept it.

I have a great deal of sympathy with that point of view. What I want most of all is to scrutinise the Bill properly; I just do not think that we can do it at midnight.

I beg to move Amendment No. 92:

Amendment No. 126, which stands in my name, refers to Clause 33. Many Church schools—and probably not only Church schools—already have organisations supporting the school with all kinds of exotic and local names. I am fully supportive of the involvement of parents; I hope that we all share that view. What these groups have in common is that they include friends of the school and members of the local church and community, as well as parents and staff connected with the school. That is a good thing and it is to be encouraged.

The wording of Clause 33 is exclusive. Members of these parent councils are parents and no one else. By amending that to “include” parents, AmendmentNo. 126 seeks to clarify the point that these friends’ organisations could perfectly well fulfil the purpose of a parent council. For many schools, having two separate bodies would be ridiculous and unnecessary. The clause as drafted would have the effect, therefore, of destroying a local system that often works well to the advantage of the school and the community. I hope that the Government will reconsider the phrasing of the clause.

I support the right reverend Prelate’s amendment, which would allow non-parents to be members of parent councils. We welcome the positive contribution to schools from the local community, but we want to ensure that the influence of parents of children currently at the school is not watered down. In so far as the governing body welcomes the involvement of “friends” of the parent council, we would support that choice. The Bexley Business Academy is a good example of where the “friends” of a parent council form a tier of greater engagement, whereas other parents can just keep in touch by attending general meetings. However, allthe members are parents. This might provide an opportunity for greater fundraising initiatives and more integrated community involvement. I hope that any parent council that admitted non-parents would be established with the appropriate safeguards.

We cannot support the amendments proposed by the noble Baroness, Lady Walmsley. As I hope I made clear at Second Reading, where the Bill provides the opportunity for schools to have greater independence to present parents with higher standards and a greater quality of choice, and where those reforms promise a robust and sustainable future for our schools, I will support those provisions. However, we believe that, taken together, these amendments would weaken the Bill. They would render completely unclear the determination of proposals for changing the majority of governors to foundation governors, for a community school to become a trust, and for referrals to the adjudicator. We do not feel that these amendments make a constructive contribution to the Bill.

Before we conclude this short debate, let us be very clear that, in the Bill, we are offering parents a far weaker alternative to that of being a parent governor. Being a parent governor is a legal position and carries precise responsibilities. The role has been very well carried out in this country. Our system of governing bodies is admired in other education systems. It has given ordinary citizens a real responsibility and involvement in their schools. A parent council is all very well—there is nothing to prevent it from living side by side with a governing body—but at the end of the day it simply has no real power.

There is nothing in the right reverend Prelate’s amendment that we would object to. It relates to including non-parents on a parent council—that is fine. But it is nothing to do with the real substitution of genuine power for what is, at best, an advisory position. We should be absolutely clear that, if my noble friend’s amendments are not agreed to and the Bill goes through as it stands, we will have removed from parents a great deal of real power and real involvement in their schools, and I think that we will live to regret that.

Sometimes when the noble Baroness, Lady Williams, for whom I have great respect, speaks, I have to pinch myself to check that we are not doing something that is genuinely outrageous, because the terms in which her arguments are made are very strong. But what we are doing here is a perfectly sensible adaptation of existing practice within the schools system. The noble Baroness, Lady Williams, said that what we are seeking to do is a great and radical departure. It is not. The model of governance that we propose for parents is precisely that which currently applies in many thousands of voluntary-aided schools, which are perfectly adequately managed within the state system. I am aware of no representation that parents feel that these schools are less well governed than other schools or that they feel less engaged than parents in other schools—indeed, if parental engagement and attachment to schools is measured by the popularity of schools and the willingness of parents to apply for their children to go to these schools, then the opposite might be held to be the case.

In fact, in voluntary-aided schools there is no requirement for parent councils—none. I am not saying that the one is a trade-off against the other. We have looked at best practice in this area. In many trust schools, the majority of governors will not be appointed; it is an option to appoint up to the majority. We expect that in many trust schools a minority of the governors would be appointed by the trust, in which case there will be a larger number of parent governors. However, where the majority of governors are appointed by the trust—and that is done by consent with the school or through the process of competition and choice of the best school that can be provided, where it is a new school—they will take on real overall responsibility for governance in the way that the Churches do in their schools. We believe that it would be good practice to have other mechanisms to ensure effective consultation with parents over and above the arrangement for parent councils.

As Bagehot once famously said of Parliament, the,

“test of a machine is the work it turns out”.

If the evidence from those schools that are governed on this basis is that they are well governed, popular in their locality and have a very strong community mission, and that parents feel well served and are willing to send their children to them, I simply do not understand the alarmist statements made by the two noble Baronesses as to the evil effects that this would have. This is one option that schools and local decision makers can pursue where they think it appropriate. They will do so in the knowledge that it would be giving majority control to a trust whose bona fides they would willingly have accepted as part of the arrangement for the trust school to be taken forward. On that basis, and given our experience of voluntary-aided schools, this seems a perfectly sensible emulation of existing good practice in the schools system and not some breach of fundamental principles. The more one looks at the state education system, the less fundamental they appear, in any event.

I thank the Minister for his reply. I accept what he says about voluntary-aided schools perhaps benefiting from having more elected parent governors on their board of governors. I emphasise that we are talking about elected, not appointed, parent governors. The parents in those voluntary-aided schools may feel that they are more involved with the school anyway because of their shared faith, but we are not talking about faith schools—well, we are in some cases because some of these trust schools will be run by faith groups, but not all of them will be, so they will not all have that shared faith by which the parents can feel that they are involved with the school and that the board of governors, whoever they are, represents their point of view.

We are talking about many schools that will not be run by faith groups, so to reduce the number of elected parent governors on those boards to a paltry one person who is supposed to represent perhaps up to 2,000 sets of parents is very unsatisfactory on the part of a Government who say that they want to strengthen the power of parents. I would have thought that the Government should be saying, “Let’s have four, five or more elected parent governors”, but no. What are the Government afraid of? Do they think that parents do not want the best for the school? Do they think that they cannot get enough parents to become involved in the board of governors? I cannot understand why the Government are so much against this point of view. They are supposed to believe in democracy and real power for parents. Yet in practice they are taking power away from them. I simply do not understand it, but I am clearly getting nowhere, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

Clause 18 agreed to.

Clause 19 [Publication of proposals for alteration of school]:

moved Amendments Nos. 94 to 100:

moved Amendment No. 101:

moved Amendment No. 104:

moved Amendment No. 109:

moved Amendment No. 114:

I rise to speak to Amendments Nos. 116, 116A and 116B, which are in my name and that of my noble friend Lady Walmsley.

Amendment No. 116 is probing, because I wondered whether the Minister could explain a little more. We were unable to understand what the regulations were saying on this occasion. I wondered if the Minister could explain the regulations to us. Paragraph 3 is a lovely piece of speak:

“Regulations under section 20 may restrict the matters to which a local education authority may have regard in deciding whether to require proposals to be referred to the adjudicator”

and so forth. We would be grateful if the Minister could explain precisely what those regulations are trying to get at.

Amendments Nos. 116A and 116B we are putting forward on behalf of the Association of Colleges, which is worried about the position of further education colleges, particularly in relation to post-16 education and 14 through to 19 years. Clause 22 sets out the rights of interested bodies on any proposals made under Clause 20 and the referral of these proposals to the adjudicator in certain circumstances. Under the terms of the Bill, any school that wanted to establish or expand the sixth form would have to apply to the local authority for approval. We discussed a little earlier that the school organisation committees will now be abolished and it will be a matter for decision by the local authority itself. Yet, post-16 education is funded not by local authorities but by the local learning and skills councils. Therefore, local authorities would be in a position of approving new sixth-form education and the numbers associated with that, but with no accompanying responsibility to fund it. Many local authorities want the majority or even all the schools in their area to have sixth forms and the Government have made this easier under the terms of the five-year plan. New school sixth forms should offer to local youngsters different provision from that which is already available. That is not always the case. The opening of a new school sixth form can often duplicate courses at other post-16 providers. There needs to be a stronger system than that proposed under the terms ofClause 22, whereby the local authority will make a decision and only then can the adjudicator be asked to make a judgment.

Amendment No. 116A would enable the Learning and Skills Council and the local dioceses to refer any proposals to the adjudicator before the local authority takes the decision. The Association of Colleges has concerns that it would be much more difficult for the adjudicator to overturn an original decision and that, when asked, he or she would be able to intervene earlier in the process to ensure that all local views are taken into account. He or she is an independent arbiter. Their involvement would reduce the possibility of long running disputes that may occur when various bodies disagree.

Amendment No. 116B would specifically allow not only the Learning and Skills Council but also schools and colleges to refer a proposal to the adjudicator where it relates to provision for 14 to 19 year-olds. That would ensure that the Learning and Skills Council is not put in the difficult position of trying to represent the views of the Government as well as those of local providers. The colleges feel very strongly that they should be able to speak for themselves. The Government rightly want to promote choice, but it is vital that colleges and schools can participate actively in the decisions to ensure that the widest possible choice is offered locally. After all, they are the ones on the ground who best understand the needs of local people.

In respect of the noble Baroness’s last remarks, I understand the points that she makes about the post-16 provision and the need for full consultation. The Learning and Skills Council and local colleges would be consulted about the proposals.

With regard to the referral of trust proposals to the adjudicator, the important distinction that needs to be made is that a trust proposal of itself would not make any difference to post-16 provision or the post-16 character of a school. Any school, whether a foundation school, a non-foundation school or a trust school, that wishes to change the post-16 character of the school would need to publish statutory proposals under the arrangements that we debated earlier today. They would need to go through the statutory processes, including local decision making and, in practice, local decision makers would not be able to make those decisions unless there was a funding agreement with the Learning and Skills Council. Indeed, there are recent decisions by the adjudicator in respect of that matter. The adjudicators have not been prepared to agree to post-16 provision where no funding arrangement agreed by the Learning and Skills Council is in place.

I understand the noble Baroness’s point that the body providing the funding and having overall responsibility for planning this provision must be a party to decisions. In fact, that is the case. The key point about the local authority as the guardian of the interests of the local community having power to refer to the adjudicator, but not the Learning and Skills Council, is that in respect of post-16 provision a trust proposal could not also double as a proposal to open a sixth form or change the post-16 character of a school. I hope that that reply meets the point.

On who can refer trust proposals to the adjudicator, or, taking the amendments tabled by the noble Baroness, Lady Buscombe, whether there should be referrals to the adjudicator at all or whether local decision-making should not involve the right of a local authority to refer to the adjudicator, I believe that we have struck a fair balance. We want the local authority to have the right to be able to refer on the basis of standards at the school, not more general standards, or inadequate consultation. The local authority must judge for itself whether it believes standards are at risk by a trust proposal or that there has been inadequate consultation. Having done that, this is then a matter for the adjudicator to decide. We think that that is the right way to proceed.

However, on Amendments Nos. 114, 115 and 116, we do not think that it is right to have an open-ended right of appeal. The local authority can be trusted to make sensible judgments on behalf of the community to refer trust proposals to the adjudicator, which is the basis on which we should act in this regard. We think that we have struck a fair balance. We could have gone further and given wider rights of reference to the adjudicator, but we thought that the role of the local authority was most important. That would seek to take account of others who are making these decisions. Equally, on something as important as the acquisition of a trust, which could lead to the appointment by that trust of a majority of the governing body, if there are concerns by the local authority that this would have a prejudicial effect on standards or that there hasbeen inadequate consultation, it is right that this should be subject to some independent review. Local adjudicators, who are now skilled in taking decisions of this kind about school organisation in the best interests of education in that community, are the appropriate people to make these decisions.

I thank the Minister for his reassurances on this. I understand the distinction that he is making between expansion proposals and proposals for setting up a trust and a foundation. I will read carefully what he has said. I think that I understand the position, and I am grateful to him.

I almost echo the words of the noble Baroness, Lady Sharp, with regard to my Amendments Nos. 114 and 115. I see some value in what the Minister has explained about the difference between foundation and trust, although I remain a little concerned that there is an inconsistency. That said, I thank him for his full reply. I want to take this away, have some further thought on it and will read what the Minister has said in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21, as amended, agreed to.

Clause 22 [Rights of interested bodies in relation to proposals under section 20]:

[Amendments Nos. 115 to 116B not moved.]

Clause 22 agreed to.

Clause 23 agreed to.

Clause 24 [Proposals for removal of foundations or reduction in foundation governors]:

moved Amendment No. 117:

moved Amendment No. 118:

moved Amendments Nos. 119 and 120:

moved Amendment No. 124:

moved Amendment No. 128:

My amendment in this group is Amendment No. 132E. A very similar amendment was tabled by one of the Labour rebels in the other place. Since there do not seem to be too many Labour rebels around in your Lordships' House this evening, it is up to the real opposition lay it and to stimulate a debate a debate here.

The amendment probes the issues of land transfer. The Education and Skills Select Committee expressed concern about trust schools having control of their assets. It said:

“We are also not convinced that Trusts need to have absolute control over their physical assets in order to function effectively. If the degree of control was more limited it would allay fears about disposal of assets. We recommend that the Government looks at this issue again with a view to establishing much greater safeguards on the transfer of assets to Trusts through detailed restrictions on disposal of assets and other issues or by a leasehold-style arrangement”.

The model of independent trust schools that own their own assets as described in the original White Paper which preceded this Bill raises questions over who will be contractually responsible for the service charges. We understand that the Department for Education and Skills might be expected to announce that when schools becoming trusts are part of PFI schemes, the liability for paying contractors will remain with the local authority. Perhaps the Minister can confirm whether that is the case. It means that investors will be concerned about the future of exclusivity arrangements with local authorities because in the past the carrot for the private sector has been to carry out all the future work—maintenance, refurbishment, cleaning and so on—over the whole local authority’s school estate. But if over the course of time eight out an estate of 20 schools become trust schools, for example, the business opportunities are significantly cut because you can no longer have the exclusivity arrangements. So it is possible that private contractors might respond to that new business risk by increasing the cost of schemes during their initial phases, which would cost the taxpayer more.

An alternative solution that the department might favour is to make building schools for the future the only option for capital investment, forcing all schools to take part. I wonder whether that is the case. Claudia Wood from the Social Market Foundation has said:

“The guidelines for BSF are quite stringent and the LEA has a huge role in approving schemes. So if the trust school wanted to do something that was slightly out of the guidelines, it would still have to negotiate that with the LEA, which detracts greatly from their so-called independence”.

It is clear that the limited freedom implied by Building Schools for the Future raises questions about the need to transfer school assets to trusts in the first place. Will the Minister tell me whether the assumptions that I have made are true and how Building Schools for the Future might affect the situation for business?

I hope that the noble Baroness does not feel that she has reached her vocation as a Labour rebel but, if she does, she is very welcome to join us on this side of the House.

My understanding of Amendment No. 132E, to which she spoke and which as she said was moved in another place, is that it would enlarge the scope for local authorities in seeking transfers so that land could be sold, for example, for housing or to provide a facility such as a transport depot or a refuse site. What a local authority might seek to get a transfer order in respect of a school site for is left much more to the discretion of the authority. Our concern on this amendment is to protect the educational interest, which local authorities should be seeking to safeguard over the transfer of educational sites.

I should make it clear that the requirements on trusts are that they should operate for educational purposes and in the best interests of the educational community they serve, not to engage in property transactions of a kind for which there are plenty of regulations laid down to prevent them if they do not remain true to their purpose. That is why we have said that the stated purpose for which a local authority may seek a transfer order should relate to the purposes of the school, to another educational use or to the delivery of children’s services, and not beyond that purpose. We seek simply to safeguard educational interests in the case of an authority which might seek to take the opportunity of a transfer to trust status to try to transfer land right out of educational purpose. Earlier in our debates the noble Baroness, Lady Williams, referred to the important issue of playing fields. Let us be clear on what will happen if local authorities are given wider rights. It would not be the essential core buildings of a school which local authorities not having regard to the educational interest might seek to transfer to other purposes, it will be ancillary sites. The most obvious of those sites will be playing fields or vacant land. Our concern is to safeguard the educational interest.

In respect of the PFI deal issue raised by the noble Baroness, I am advised that even though the local authority remains the signatory to the PFI deal, the governing body would have to pay the unitary charge. However, it could not unilaterally break any agreement made by the predecessor governing body. It would inherit the obligations that were made before, so there would be no change in that respect.

I turn now to the five amendments in this group spoken to by the right reverend Prelate. Amendments Nos. 128 and 131 concern the details of trusts and trustee rights which have consequences in charity law as well as in education law. I have requested my officials to work further with the Church’s lawyers, and if necessary with the Charity Commission, to explore these highly technical matters. I will keep him informed of progress with a view to reaching an agreed position before we come to the Report stage. Amendments Nos. 130 and 132 impose duties on the adjudicator in respect of compensation to trustees for costs while the adjudicator considers referrals, and a duty to hold a public hearing. Neither of these provisions, we believe, are required in the Bill, but are better dealt with in guidance to which the adjudicator has a statutory duty to have regard. We have made guidance available to the House which sets out our position on these matters and it is our intention that this guidance will be further developed in the light of experience.

Amendment No. 137 would require the Secretary of State to purchase playing fields and adjacent land from trustees when he refuses consent for playing field disposals under the provisions of Section 77 of the School Standards and Framework Act 1998, which has been referred to several times in our debates. This section covers protections for school playing fields to prevent them being sold off to the detriment of the sporting facilities available to the school and the local community. The provisions of Schedule 4 bring the trustees of foundation and voluntary schools in line with other categories of school in having to seek the consent of the Secretary of State when disposing of any playing field land which has been provided or enhanced at public expense. We have considered representations made by Church lawyers in this area, but we believe that the extension of protection to playing field land in these respects is right. There is rightly no requirement in existing legislation, the 1998 Act, for the Secretary of State to purchase land when he refuses consent to disposal. In some cases that could be a hugely expensive undertaking and we do not believe it would be right to introduce such a provision for some categories of owners of publicly funded land rather than others.

We understand that the concern behind the amendment relates to hard play areas, playgrounds directly attached to school buildings which come under the provision of the Act. Should the Secretary of State refuse an application for disposal, it could blight the sale of a discontinued school owned by trustees, including Church trustees. However, a general consent for disposal of such land already exists from the Secretary of State, provided that the land is not needed by another school. The amendment is therefore unnecessary.

Finally, the provisions of Schedule 4 allow a local authority to seek the transfer to it of surplus publicly funded school land that is owned by governing bodies, foundation bodies, or trustees. We have deliberately restricted the purposes for which such a transfer can be sought, so that school land continues to be used for the benefit of the children and young people in the area.

The great majority of the government amendments to Schedule 4 in the group are technical, consequential and repetitive, and I have written to noble Lords about them. School land can be owned in a number of ways by different categories of bodies, reflecting the extremely complex history of the development of school sites. It has been acquired and funded through a number of routes. It is necessary for legislation relating to school land to include all those possibilities, and the amendments seek to tie up loose ends.

The provisions in Schedule 4 mean that where there is not local agreement to disposal or reinvestment proposals, or a claim by a local authority for a share of the proceeds relating to public funding, the schools adjudicator will determine. The amendments, which have been discussed in detail with the Churches that are principally affected, make clear that provisions apply only to land that is acquired or has been enhanced by public funding and to that share of proceeds that can be attributed to public funding and not that share that could be attributed to trustees in respect of that land. They also define public finding more clearly, and they make procedures simpler and clearer.

They provide that where a local authority successfully objects to a proposed land sale or deployment on the grounds of local need, the land should be transferred to the local authority expeditiously for proper consideration, which meets one of the major concerns that the Churches had. They also replace a complete moratorium on disposal until any matters referred to the schools adjudicator are determined, with a moratorium only where the authority has objected to the disposal itself in question, which we think is a more sensible way of proceeding. I hope that has given the right reverend Prelate some comfort.

Before the right reverend Prelate responds and, I presume, withdraws the amendment, I have one point to make on my amendment. As I understand it, the Minister said that the governing body will have to undertake the agreement that it already had on PFI, and it is liable for the costs. Is there any mechanism for preventing the upward pressure on costs that might result from this break-up of the school system, so that PFI private sector partners no longer have an opportunity for an exclusivity arrangement with the local authority? Is there any way in which the school can resist upward pressure on the PFI costs?

My understanding is that the nature of PFI contracts and the relationship between schools and local authorities under PFI contracts is not affected in any way by a move to trust status. I will happily write to the noble Baroness about that if my understanding is in any way incorrect. They are still maintained schools. The local authority under Building Schools for the Future, for example, where the obligations are undertaken, maintains the same responsibilities as it does for other maintained schools. My understanding is that it makes no difference at all, but I will write to the noble Baroness if I am incorrect on any point.

I have a quick question. The local authority appears to be the only body that can intercept the land in this way to use for educational or similar purposes. If the land is required by the proposer of the new school who is not the local education authority, does the LEA have any obligation to act on its behalf to make sure that the land stays in educational use? Or is it possible that the LEA could frustrate the new school by denying it access to old premises?

The local authority can act only in very specific circumstances relating to other education or children’s services’ uses for the lands. The noble Lord asked whether that other use could include the creation of a completely new school, fulfilling the local authority’s duties to permit diversity and choice. My understanding is that where the local authority formed the view that such a new provision was in the local public interest, it would be a legitimate reason for it to seek to act. Could others seek to oblige it to do so? The could do so indirectly through the provisions in the opening clauses of the Bill, which require local authorities to have regard to the promotion of choice, diversity and to take full account of parental demands, but they could not refer proposals to the adjudicator. It is important to understand why. We are talking about school sites. There has to be some overriding public interest for the rights of trustees or the governors of schools to be overridden in the decisions that they wish to take about the disposal of sites which are legitimately theirs.

I am very grateful to the Minister for his response to Amendment No. 128. I am also grateful to him for the discussions which we have already had about these matters. At this hour, it is difficult to take in all the details of his response and I shall read them very carefully. But I am grateful for his reassurance of further discussions. In light of that, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 129 not moved.]

Schedule 4 [Disposals and changes of use of land]:

moved Amendments Nos. 129A to 129BX:

moved Amendments Nos. 130A to 130H:

moved Amendments Nos. 131A to 131U:

moved Amendments Nos. 132A to 132D:

moved Amendments Nos. 132F and 132G:

moved Amendments Nos. 133 to 136:

moved Amendments Nos. 136A to 136E:

moved Amendment No. 137A:

moved Amendment No. 138:

I shall speak to Amendment No. 142. I am not sure that the noble Baroness, Lady Buscombe, and I are all that far apart. I welcome the desire to help and support children in care in the Bill. I tabled Amendment No. 142 because young carers also deserve a better deal.

I have recently met many young carers and listened to their problems. I am grateful to the Princess Royal Trust for Carers and other support groups for supplying me with further information. A huge and recurring issue is that of schools not knowing that they have young carers, and having no policy or person in charge to cope with their needs. There is no need to identify them in front of their classmates, but people need to know that there is a problem, just like any other welfare problem.

Some young carers are caring for a parent with a physical or mental disability, or for a sibling. In both cases, they may find themselves late for school, unable to do homework on time or, sadly, missing school. I shall briefly illustrate my points. As the noble Baroness, Lady Buscombe, said, there are around 175,000 carers in the UK. Of these, 13,000 care for people for more than 50 hours a week. That is surely enough young people to mean that every local authority should have a young carer strategy as part of their children and young people’s plan. Young people’s health is often badly affected by caring through the night, having to lift a heavy adult and feeling isolated. These young people are often going through adolescence, and have the same emotional needs as others. Many suffer the additional trauma of bereavement, family break-up, loss of income or housing, and seeing the effects of illness or substance misuse in the family.

I am focusing on educational needs, but these needs go beyond education; a good reason for children’s services which link together to support the young person. Education is a big concern when we are looking at people missing school altogether. One child said:

“I missed a lot of school because he wasn’t well. I didn’t like leaving him in case he fell over and he couldn’t reach a phone or pull the cords … I went to school twice a week, and that was it”.

The DfES guidance and advice for schools and local authorities states:

“Young carers should not be expected to carry inappropriate levels of caring which have an adverse impact on their development and life chances. However, there are children and young people who undertake caring roles … there may be up to 30 young carers in a secondary school”.

The advice goes on to say that:

“Schools should consider designating a member of staff to have responsibility for young carers. They can also contribute to schemes that support them, working with local authorities and voluntary agencies”.

This is not simply a problem for schools, but across many services.

Only some schools identify and support young carers. There are stories of real success; for example, allowing young carers access to telephones in school so that they can contact their home in case of emergency, as well as real care on homework issues and links to other services.

If we are, insistent that Every Child Matters principles go right through the Bill—I think that we are—the rights of young carers should also be supported. Every school should have a lead professional who co-ordinates young carers’ support. Links between school and family are absolutely vital. Local authorities should provide free transport for young carers, and schools should work with young carers’ services as part of the extended schools and healthy schools programmes. I hope that the Minister will be sympathetic to my amendment. On behalf of young carers, I do not think it is too much to ask.

I wish to speak to Amendments Nos. 139A, 139B, 139C, 140A and 140B in this group. First, I shall mention Amendment No. 139 in the name of the noble Baroness, Lady Howarth of Breckland, who is unable to be with us. This is another place in the Bill where we believe the well being of the child should be added. The noble Baroness has placed it right up there with the duties of the governing bodies, where it should be—at the basis of the activity of the school alongside the achievement of educational potential.

I have added my name to Amendment No. 142 in the name of the noble Baroness, Lady Massey, to which she has just spoken so effectively. The reason why I prefer her amendment to that of the noble Baroness, Lady Buscombe, is that it seeks to replicate the situation that applies to looked-after children, in that the school should have a dedicated teacher who is responsible for supporting that other particular group of very needy children who need particular support from the school. The fact that she has paralleled that situation which already exists for looked-after children with this other group of young carers who have different needs, but none the less very important needs, is what makes her amendment particularly attractive to me.

I shall not speak to Amendment No. 184B, as we have changed it and put it in a different place in the Bill. It belongs in the discipline section and the bullying section. We shall come to it later in our debates.

Amendment No. 139A adds academies, city technology colleges, and city colleges for the technology of the arts to the list of schools that must have regard to the relevant children and young people’s plan. The Minister is always telling us that those schools, although they are independent, are actually community schools. If that is so, there is no case for them to be excluded from the duty to have regard to the children and young people's plan for the area. To have no regard to that plan would be a recipe for chaos and discrimination in the area and the children who would suffer would, as usual, be the most vulnerable.

Amendments Nos. 139B and 140B have been suggested to us by the LGA. They would ensure that the Bill strengthens the contribution of schools to the improvement of all of the five well-being outcomes for children, as set out in the Children Act 2004, and not just educational attainment. Local authorities have, of course, embraced the provision of that Act. As a key plank of the Children Act 2004, local authorities are required, in conjunction with their local partners, and in consultation—this is most important—with children and young people themselves, to produce the children and young people's plan. Government guidance describes the document as,

“a single strategic overarching plan for all local services for children and young people”.

Both in the SI and in government guidance there is a clear onus on local authorities to ensure that the schools are consulted and have full input into the process. That onus is only in one direction at present. Schools are not currently required to act within the provisions of the plan once agreed. Given the obvious importance of schools in delivering the educational fulfilment and wider elements of the well-being of children, and given that the Government have described the children and young people's plan as an overarching plan for all services affecting children and young people, we believe that the onus on governing bodies to comply with local partners’ plans must be strengthened to ensure coherent and effective local delivery of the well-being of children and young people.

I will speak to Amendment No. 142 to which I added my name. My main aim as far as this Bill is concerned is that there should be some mention of young carers in the Bill. Twenty years ago, when Carers UK started campaigning for the rights of young carers, nobody believed that there was such a thing as a young carer. It was simply not in our consciousness. We must acknowledge what huge progress we have made, perhaps particularly since this Government have been in power, in recognising the needs of young carers. A great deal of progress has been made in providing services appropriate to the needs of young carers.

However, time and again, when you meet young carers—as I do and as the noble Baroness,Lady Massey, has mentioned—they say, “If only we had more recognition in schools. If only our teachers understood what it was that we’re doing”. That is not to say that they are requiring too much attention, legitimacy or freedom, but that they want, as young carers frequently say, an ordinary life. I hope that we can include a provision in the Bill that will move us further on in the education area towards helping young carers have just that.

I strongly support what the noble Baroness, Lady Pitkeathly, just said with all her experience in this area. Two of the amendments emphasise schools’ responsibilities in this area and draw on the consultation with young carers that I attended. It was organised by Dr Roger Morgan, the Children's Rights Director at the Commission for Social Care Inspection. It is his duty to ensure that the voices of children affected by public services are heard clearly.

I have three points. On social services, which the noble Baroness Lady Massey, mentioned, children commented that,

“social services come in and out of our lives but never stay long enough to help”.

Young carers,

“did not get much support for themselves from organisations like social services”,

and stressed the need for,

“having the same social worker for a continuous time”.

We know that, because of the shortage of social workers in many areas, we have a long way to go in securing that steady support. It makes it all the more important that schools can supply that support where it is lacking elsewhere.

On schools, young people said that,

“it feels like I've got to explain myself so many times”.

The consultation concluded that,

“if you have been doing caring tasks for someone at home, sometimes during the night, you are simply tired and can't concentrate at school”.

Young carers need one,

“person on the staff they could talk to at any time about their caring pressures”,

so the role of designated teacher is very important indeed.

As the noble Baroness, Lady Buscombe, and children said,

“there is a fine line between helping and intruding”.

That sensitivity is all-important and again schools need to be equipped to deliver it. What struck me most in the meeting was what young people said about their friends. They said:

“Staff also need to know how being a young carer can make a difference to how you get on with other children or young people. It can make it difficult to make friends, and you can come across as having emotional problems yourself. Friends you do make sometimes don’t stick around when things get tough. Practical things like going out with friends and going on sleepovers can be very difficult for a young carer to do, and this does make a difference to how you get on with other people your own age”.

The charity YoungMinds has often expressed the concern that mental health services, when they are dealing with parents, do not identify the children and the need for those children to get support. I welcome the strengthened duty on schools to identify these children and ensure that they get the support and services that they need. I look forward to the Minister’s response.

I support my noble friend’s amendment. These young carers are enormously important to us. Those who are capable of taking on these responsibilities at that age often go on to great things afterwards. I can think of one who became a postman and may go even further yet.

All the amendments seem to follow the same sort of line, certainly as far as young carers are concerned. Again, having seen and heard some of their views over time, I think that the whole purpose of having some form of teacher support is going to be important.

The other thing is that fine line between intrusion and helping, and there is room here surely not just for a designated teacher but for a lot more voluntary support, a mentor in the community. In earlier discussion, we were able to identify some degree of bullying that often arose in such situations.

So there is a lot of need for attention to this very special, very important group who often have a huge role in keeping the family together. On the other side, I would very much support the well-being amendments that have been suggested. It is important that they go in in their more general capacity for the educational side of the work.

We absolutely accept the important issues relating to young carers that the noble Baroness has raised, supported by my noble friends, by the noble Baronesses, Lady Howe and Lady Walmsley, and by the noble Earl, Lord Listowel. Anyone who has looked at this and spoken to young carers and to schools as they seek to provide assistance to them realises the gravity of the issue.

The estimates of numbers vary widely. The 2001 census recorded a total of almost 150,000 young carers in England and Wales—a substantial increase on the figures collected by ONS in 1996, which suggested between 19,000 and 51,000. Whichever figures we look at, the numbers are very large. There are even suggestions that the figures may be an underestimate, as they do not include young carers whose parents have drug or alcohol problems, which is often a significant issue. It is also striking that some very young children are recorded as providing significant hours of care.

The issue is how we provide better assistance for young carers without labelling and possibly stigmatising them, which would of course be a concern that we would all share and which we particularly think might apply to a requirement on schools to identify young carers in some formal way. We are happy to look at this further before Report, in particular to see whether my department could provide non-statutory guidance to schools, consulting local authorities and relevant representative organisations to help them in their efforts to engage sensitively with young carers and to promote the fulfilment of their educational potential, with particular reference to proposed new subsection (2)(b) in the noble Baroness’s amendment. We will seek to engage noble Lords in further discussions on this before Report.

With respect to Amendment No. 139A, tabled by the noble Baroness, Lady Walmsley, we recognise that academies should have regard to the children and young people’s plan in each locality. We intend this to be taken forward through amendments to the model funding agreement for new academies, and my officials will also enter into negotiations with existing academies following the passage of the Bill to see that this is reflected in their funding agreements too. I hope that we can bring about that result.

I am told that the objective that the noble Baroness is seeking to achieve through Amendment No. 139C has been met. We entirely share the view that there should be full consultation with children and people in families during the development of children and young people’s plans. That need is met by the Children and Young People’s Plan (England) Regulations 2005, which make provision to ensure that the views of children, young people, families and their representatives are heard during the development of the CYPP. It may help if I send those regulations to the noble Baroness to see whether that satisfies her in this regard. Obviously, it would be pointless to have a children and young people’s plan without consulting children and young people in its preparation and ensuring that they played a full part in that process.

On the issues covered by Amendments Nos. 138, 139, 139C, 140, 140A, 140B, 142 and 184B, we of course share the objectives entirely. Our concern is not to put in statutory duties where we believe that the purposes can be achieved in less regulatory ways. They can be, because of the centrality of Every Child Matters to what schools now seek to achieve. Should encouragement be necessary to ensure schools’ participation, sufficient levers already exist. Ofsted already inspects schools using a framework that requires consideration of the delivery of the five outcomes in Every Child Matters. The framework for schools’ self-evaluation fully reflects Every Child Matters, and we recently issued guidance on that, which I would be happy to circulate to the Committee. School improvement partners, which we debated earlier in our consideration of the Bill, will support and challenge schools on their contribution to the five outcomes. School profiles will give parents information about the support that schools provide for pupils’ well-being and any extended services that the school offers.

Looking at how schools already engage with Every Child Matters, we believe that progress on extended schools is one proxy for overall progress and note that 2,500 schools will make the core offer of extended services by September 2006. Over 8,000 schools are now engaged with their local authority and the Training and Development Agency in developing plans to become extended schools. The indications that we have of engagement by schools in this agenda are highly positive, and we do not seek to legislate further at this stage.

I thank the Minister for his reassurances and look forward to receiving the regulations that he mentioned. I am pleased that the aim of Amendment No. 139A will be achieved by amendments to the model funding agreement.

I thank the Minister for his reply and for his encouraging words about Amendment No. 138 and Amendment No. 142, tabled by the noble Baroness, Lady Massey. As the noble Baroness said, we are not far apart at all. We want to make sure that what we propose can be as discreet and flexible as possible, being careful to ensure that the individual young carer is not in any way stigmatised and is at the same time recognised. It is difficult. The Minister appreciates what we are trying to achieve, but at the same time I appreciate that we have to be careful about how we identify these young people. As the noble Baroness, Lady Pitkeathley, said—I wrote it down just as she was saying it—they do not have ordinary life experiences in some ways, and it is difficult for their peer group to appreciate what they are going through, so they must often feel in many ways isolated and traumatised through their experiences. In other ways, of course, they have grown far beyond their years. My noble friend, in supporting my amendment, suggested that in many ways they could do great things in later life through their difficult and challenging experiences in early life.

I am grateful to the Minister. I am glad that he has agreed to think more about this, and non-statutory guidance is a great start. We all clearly feel that the area is hugely important. We have come a long way. I am pleased with the Minister’s response and, for now, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [General duties of governing body of maintained school]:

[Amendments Nos. 139 to 141 not moved.]

Clause 36 agreed to.

[Amendment No. 142 not moved.]

moved Amendment No. 143:

I commend the noble Baroness, Lady Buscombe, for moving this amendment on an extremely difficult and not very popular subject. I declare an interest as one of those involved in setting up the body known as FACT—Falsely Accused Carers and Teachers—with the noble Earl, Lord Howe, in this place and Claire Curtis-Thomas in another place.

There is no doubt that it has become something of an industry for some people to make allegations of a kind that have no substance against parents and teachers. We came across a number of examples over the past couple of years of people who had reasons, not any justified claim, that led them to make allegations against teachers that were simply false—in some cases because they believed that they had been wrongly graded, in other cases because they believed that their references had gone against them, and matters of that kind.

All this was made worse in the instances that I know most about, which related to the investigations conducted by the North Wales Police and the Merseyside Police into cases involving child carers and teachers, by a method known as trawling, whereby all those involved in a particular school or childcare home were approached and asked whether they wished to make any allegations. That, to say the least, was unfortunate, because in some cases it encouraged those who had no particular allegations to make to give evidence against teachers and carers, possibly with a cohort of their fellows from the same class.

This is an extraordinarily difficult issue. Justified claims of harassment, misbehaviour and so on against teachers are among the most sensitive and difficult cases that Ministers in the Department for Education and Skills or, for that matter, the Home Office ever have to deal with. It is an extraordinarily difficult balance to strike. Wherever one strikes it, one is likely to create a huge industry and a huge loss of reputation. Nevertheless, the crucial thing—and I believe that the noble Baroness has got it right—is to protect the teacher against whom allegations are made until there has been a proper opportunity to investigate. That protection has been breached in the past where such allegations and rumours have been spread about, which has led, as the noble Baroness, Lady Buscombe, said, to people losing their entire careers as schoolmasters or schoolmistresses, and in some cases to their families being wrecked by the community picking up false allegations against the person concerned.

So, speaking simply from the background of what knowledge I have of this, which is obviously limited but which shows the acute agony of these kinds of cases, I would certainly commend the effort by the noble Baroness to try to limit the damage caused. I commend the amendment, which may contain purely technical difficulties, but which seems to me to try to address a very difficult and not particularly popular issue.

We on these Benches have considerable sympathy with the amendment, as my noble friend Lady Williams of Crosby has just said. I can think of little worse for somebody who is so committed to children that they take up a profession looking after them—teaching and caring for them in some capacity—than to be falsely accused of malpractice or abusing them in some way. That must be agonising. However, the meeting with the Minister is timed for next Tuesday. We will attend this cross-party meeting with him alongside the noble Baroness, Lady Buscombe, and we will reserve our judgment on whether the amendment is necessary pending what we hear from him. The Minister may well propose something to deal with this very important issue, but, if not, I am sure that we will come back to it on Report.

I, too, congratulate the noble Baroness, Lady Buscombe, on the amendment, and very much support what the noble Baroness, Lady Williams, has said in support of it. It is very worrying that the number of cases has doubled and that the number of allegations seems to be growing. Clearly, certain steps have been taken that have helped. It is important to try to reduce the waiting time between when an offence allegedly occurs and when the case is heard. But I have also attended the All-Party Group for Abuse Investigations—or APGAI, as we call it—for some time, perhaps almost to counter my view that a lot of offences are, and have been, committed against children. Again, the noble Baroness, Lady Williams, has played an extremely useful role in nailing these allegations so far as is humanly possible. I very much support what has been said.

We regard this as a serious issue and we look forward to further discussions, which my honourable friend will lead next week, on this difficult issue. Our concern is to ensure that allegations are investigated and dealt with speedily and confidentially. These are the two prime requirements that teachers and carers can legitimately expect from a system when their whole livelihood and future are at stake in the consideration of allegations.

We have sought to improve guidance and materials to schools on how to deal with cases. Last November, we issued new guidance on this issue to schools and to further education institutions in England. This April, the revised version of Working Together to Safeguard Children provided overarching guidance on allegations against anyone working with children in any setting. Our guidance states that every effort should be made to maintain confidentiality while an allegation is being investigated, unless and until a person is charged with an offence. It also seeks to promote expeditious investigations. The aim is for at least 80 per cent of cases to be resolved in less than one month—this would be an increase on our latest figures, for 2003-04, which show that 55 per cent of allegations were resolved in less than one month—and for all but the most complicated cases and cases that must go to court to be dealt with in less than three months. At present, the latest figures, for 2003-04, show that 22 per cent of cases took up to three months to complete and that 10 per cent of cases took up to a year, which we regard as an excessively long time.

We have also put in place a network of 15 allegation management advisers, who are based in government offices in England and who work with local safeguarding children boards to ensure that effective arrangements are in place for dealing with allegations of abuse against everyone who works with children—that is, not only teachers but other staff and volunteers in schools and further education institutions. Part of the work of the advisers will be to help organisations to prevent allegations from arising in the first place, particularly in the circumstances mentioned by the noble Baroness, Lady Williams, through safe recruitment processes and advice on staff behaviour when working with children.

We are keen to explore next week the question of whether we can go further, but I shall not disguise the fact that we have encountered difficulties on further statutory protection, not least in the read-across to other public servants and others who quite legitimately expect similar protection. We are wrestling with these issues, and I hope that we will have more information to make available to noble Lords in the meeting next week so that we can at least have a stronger shared understanding of how to proceed satisfactorily on this issue.

I thank the Minister for his reply. I also thank the noble Baronesses, Lady Williams, Lady Walmsley and Lady Howe, and others who have supported the amendment. I do not know whether other noble Lords would agree, but I must say straight away that, although I hear what the Minister is saying about guidance and arrangements, sadly I do not believe that those arrangements would and could be effective in today’s culture. I am afraid that we have gone too far down the road of blame and accusation. Human nature is now such that, sadly, we need a stronger deterrent to deflect this growth in the culture of accusation and blame.

I speak as a lawyer. I am always loath to legislate in these areas unless absolutely necessary, but we have to think about the numbers. The numbers speak for themselves. Teachers, particularly male teachers, are genuinely being put off the profession by this culture of blame. That is hugely unfortunate. I never thought that I would find myself saying this—maybe it is because of the late hour—but perhaps it is something to do with the media. Whatever is going on out there, people are finding themselves deterred from doing a hugely important job as a teacher because of this culture.

I urge the Minister to ensure that, when we meet next Tuesday with his colleague from another place, their thoughts and proposals will extend much further than guidance and arrangements. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 143A:

I rise to speak to Amendment No. 144, regarding the use of home school agreements and admissions, and to AmendmentNo. 146. I also give notice of my intention to oppose the Question that Clause 38, regarding the admissions code, stand part of the Bill. I will also speak to Amendment No. 169, regarding interviews allowed for children over compulsory school age and Amendments Nos. 176 to 178, regarding banding.

Amendment No. 144 introduces home school contracts as part of the admissions code. It offers an incentive and a positive relationship between the family and the school from the outset of a child’s education. We agree with the Government’s sentiments outlined in the White Paper regarding the reinforcement of parental responsibility for discipline. At Second Reading, I voiced my concerns about parenting orders. They are reactive measures to poor discipline, offering little more than enforcement, and they fail to create overall results.

The child impact statement issued by the All-Party Parliamentary Group for Children points out:

“The extension of parenting orders raises questions about due process in terms of resorting to enforcement measures where no offence has been committed”.

Ultimately, this measure is counterproductive and creates a barrier between parent and school.

A constructive approach is required. By introducing a contract at the start of a child’s education, schools and parents will work in a constructive partnership by actively practising an ethos of discipline. Agreeing to an informal contract between school and home, both teachers and parents send a message to children that behaviour in the home and at school are considered to be of the same or similar importance, with the same or similar acceptable standards expected. This amendment is not intended to be a mechanism to enable teachers to tell parents how to parent and it will not enable parents to tell teachers how to use discipline. It is a simple agreement between parents and schools intended to ensure that they both have an effective tool to help them to tackle serious problems of truancy and attendance, and discipline in the classroom.

I turn to Amendment No. 146 and the Question whether Clause 38 should stand part of the Bill. These concern the admissions code. Amendment No. 146 would ensure that the code for school admissions would have to be approved by both Houses of Parliament before it could come into force. That reflects the change in the nature of the new code for school admissions compared to its predecessor, the code of practice for school admissions. The code of practice is made under Section 94 of the School Standards and Framework Act 1998, which Clause 38 amends. It required bodies and persons exercising functions under that chapter of the 1998 Act only,

“to have regard to any relevant provisions of the code”.

The new code is far more prescriptive. As envisaged under Clause 38, the code for school admissions will,

“impose requirements, and may include guidelines setting out aims, objectives and other matters”,

rather than the less constricting Clause 84(2) of the old arrangement whereby:

“The code may include guidelines setting out aims, objectives and other matters in relation to the discharge of their functions under this Chapter by local education authorities and such governing bodies”.

Bodies and persons exercising functions under the relevant chapter of the 1998 Act will be expected to “act in accordance” with the code rather than “have regard to it”. The skeleton admissions code makes clear at paragraph 2 that it,

“sets out statutory (i.e. imposed by primary or secondary legislation) and other mandatory requirements imposed by this Code”.

According to that paragraph, chapter 1 of the skeleton code sets out,

“admission practices and oversubscription criteria that must not be used in the allocation of school places and provides guidelines and requirements for fair admission arrangements”.

It is clear that this code is much stronger than the one made under existing legislation. It is also clear that the change in the status of the code was made to win the support of various rebel groups within the Labour Party.

It was not a proposal contained within the White Paper. Paragraph 3.22 on page 46 of the White Paper states:

“No one approach towards admissions will work in all circumstances. This is why we want to ensure that all self-governing schools … are free to use the approach to fair admissions that they think will best meet their local circumstances, as long as it is compatible with the Admissions Code”.

The public face of government was consistent with the White Paper. All radio, television and newspaper interviews given by the Prime Minister and the Secretary of State between the publication of the White Paper in October 2005 and the concession letter of 6 February this year categorically ruled out the code of practice having any more statutory compulsion than it had already. On 24 November, the then Secretary of State, Ruth Kelly, said in another place that:

“The code is established on a statutory basis, but there is discretion and flexibility in it to adapt admissions to meet the specific ends of a school and the pupils in the area”.

Asked by the then shadow Education Secretary, David Cameron, if she would rule out making the code of practice a statutory code, the then Secretary of State replied:

“I can tell the hon. Gentleman that the code achieves its ends of ruling out selection by ability on its current statutory basis. He is confused—the code already operates on a statutory basis. Schools take it into account, and then the adjudicator, which is also statutory, can use its discretion to say whether the school has interpreted it correctly. Interpretation of the code, however, is very important for schools that want to create their own distinctive ethos”.—[Official Report, Commons, 24/11/05;col. 1644.]

The Prime Minister said at his press conference on 23 January:

“I can’t agree, for the reasons we have given on many occasions, that this code becomes statutory”.

The Government retreated in their 6 February letter to the Education and Skills Committee in which the then Minister said:

“As you know it has always been our intention that the Code of Practice on admissions should have real force”.

The wording in Mr Justice Jackson’s judgment in the London Oratory School case, which involved the governing body of that school and the schools adjudicator, shows how prescriptive the code can be. He said:

“Let me first consider the statutory effect of the Code. Section 84(3) of the 1998 Act imposes an obligation, first on the Governors of the Oratory School and then on the Adjudicator ‘to have regard to any relevant provisions of the Code’. The phrase ‘to have regard to’ means to take into account. It does not connote slavish obedience or deference on every occasion”,

which I suspect could reflect the new provisions.

The code could evidently be incredibly restrictive. Indeed, the Bill’s powers could be used to impose a single admissions criterion across the country. That is why we feel that if there must be a strengthened code, accompanying it should be a high level of parliamentary control embodied in the affirmative resolution procedure. However, our preferred solution would be to remove Clause 38 altogether. It is unnecessary.

First, to impose the code with that additional strength requires us to anticipate all the varied decisions in which a school might find itself. We need to ensure that schools have sufficient flexibility to respond to local needs when setting up their arrangements. In relation to guidance for Clause 3 the Minister in another place stated:

“When we are recommending good practice, it goes into guidance and it is for local bodies to take it into account sensibly in their local situations.”—[Official Report, Commons Standing Committee E, 30/3/06; cols. 152-153.]

Why should schools not have the power to tailor their admissions arrangements to local circumstances? I suspect that the furore surrounding admissions reflects a left-wing preoccupation with admissions rather than with standards. The government rationale for the alteration has not been consistent. The letter of 6 February to the Education and Skills Select Committee stated that the change was prompted by “recent legal judgments” that,

“may have weakened the perceived force of the Code”.

But that legal judgment had occurred before the publication of the White Paper. In fact, the London Oratory School case was decided in December 2004, some 10 months before the publication of the White Paper. Had the Government truly intended to strengthen the code, they had months in which to make their intentions clear. The fact that they did so only when threatened with a rebellion inside their own party is extremely telling. The words in the White Paper belie the Government’s real stance:

“We recognise that no form of admissions arrangements can increase the number of places at an oversubscribed school. This is why we are continuing to increase the number of good schools and the number of places in good schools”.

Our preoccupation should be with the creation of more good school places, not the shifting of one set of children out of a good school and replacing them with another. That merely substitutes one injustice with another. The disparity in our education system is caused by a lack of good school places, not in the fact that one school might have slightly different admissions policies.

I turn to the skeleton code. It is a pity that we were not presented with a more detailed example. However, we are satisfied that it goes no further than the draft code that was withdrawn last year. The code recognises that first preference first is poor practice. That is welcome, as first preference first schemes often lead to parents choosing schools tactically rather than on the basis of genuine preference, particularly where there are grammar schools in an area. If specialist schools decide to select 10 per cent of their intake by aptitude, it will be even more important that the decision is taken on the basis of the fairer equal preferences system.

I have concerns with some aspects of the code. It continues to outlaw making admission conditional on signing a home school contract, an issue on which I hope to speak later. I am concerned also about the less technical wording of the part of the skeleton code concerning social fairness. The code states at paragraph 1.27:

“Admission authorities should analyse information about their intakes, and where possible their applicants, to find out whether they attract a wide range of families or whether their school fails to attract all sections of local communities”.

I should like the Minister to reassure me that that will not impose a bureaucratic burden on schools. It is important that schools do not discriminate in their admissions on irrelevant grounds. However, since schools are legally forbidden from selecting on the basis of social background or income, there is a risk that schools might make great efforts to ensure a fair intake without any assurance that they will be successful. I am grateful to have been able to place these matters on record. Our amendment would ensure that the new code of admissions was subject to parliamentary scrutiny. We on these Benches consider that to be a necessary process for ensuring that schools are not subject to undue burdens.

I turn to Amendments Nos. 176, 177 and 178 on banding. I will return briefly to an issue raised by my honourable friend Nick Gibb MP in another place. I will not go into it again in great detail as I hope that having returned with a slightly altered amendment the Government will be minded to accept this one in your Lordships' House, having been sympathetic to the principle in another place.

I set out the position from these Benches at Second Reading. I firmly believe that banding is nothing more than streaming outside the school gates. I believe that in its purest form it leads to social engineering and can seriously fetter parents’ choice of schools. As such, it goes in principle against the driving forces of this Bill. However, that is the principle of banding in its purest form. While in principle it poses serious problems, in practice it can be shown to work. CTCs, especially the Thomas Telford school, benefit hugely from using banding in conjunction and, as such, I would not wish to fetter the choice of schools to use banding as a method of selection.

These amendments make it necessary for local education authorities that are admission authorities to get the consent of governing bodies when introducing all forms of banding. As currently drafted, Clause 49 provides for governing body consent only to the new form of banding that is introduced by new Section 101(1A) of the School Standards and Framework Act 1998. Amendment No. 176 is a technical amendment that ensures that banding can be introduced only with the consent of governing bodies when they are not their own admissions authorities. Amendment No. 177 is a clarificatory amendment to ensure that consent to banding is necessary only when first introduced rather than every year that the admission arrangements are determined. I beg to move.

I begin on a consensual note, as I always seek to do. We are happy to accept Amendments Nos. 176 to 178 moved by the noble Baroness, Lady Buscombe. I am glad that she has moved somewhat in her analysis of banding to see that it can be a beneficial system over subscription criteria in certain circumstances when schools want to ensure a genuinely comprehensive intake. We agree that it should be done with the consent of governing bodies and the amendments that she moved would give it that effect, and we are happy to accept them.

Amendments Nos. 175 and 263 stand in my name and relate to partial selection. We do not think that we can go so far as the Liberal Democrat amendments, which would ban partial selection entirely without a process of adjudication, but we believe that when the adjudicator has already decided to reduce the proportion of people selected or to remove selective arrangements, it should not be possible for schools to seek to restore the original level of selection in the following period. It was not our intention that schools should be able to seek to restore original selections or partial selection. Our amendments would mean that if the adjudicator or the National Assembly for Wales made a decision to reduce the proportion of children selected by a school with pre-existing selection, that school could not later return to 1997-98 levels of partial selection. The same restriction would apply if an admission authority voluntarily decided to reduce the proportion of children selected.

On Amendment No. 143A proposed by the noble Baroness, Lady Sharp, we do not believe that it is necessary to amend legislation to prevent academies or CTCs from introducing selection by ability. Academies are already required to be fully inclusive schools and to comply with the school admissions code and admissions law, which is a more stringent set of obligations than currently apply to maintained schools. They are obliged to do so by the funding agreements that are approved by the Secretary of State. CTCs were established on the basis that they must admit children of all abilities, and they achieve that by pupil banding. Similarly, academies are not allowed to conduct interviews and the remaining CTCs, most of which are moving to academy status, will comply with that requirement by consensual change to their funding agreements.

On the vexed issue of selection by aptitude, which the amendments of the noble Baroness, Lady Sharp, would also affect, I shall answer in two parts. At the moment, the prescribed subjects for selection of up to 10 per cent of intake by aptitude are PE or sports, the performing arts, visual arts, modern foreign languages, design and technology and information technology. When the Select Committee looked at that issue, it recommended that we removed design and technology and information technology from that list. We have agreed that we will do so on the grounds that we now believe that these subjects are areas of expertise which ought to be available in all schools. It is crucial to understand that the reason why we permit selection by aptitude is not simply because it is possible to do so—one could select by aptitude in a wide range of subjects—but also because of the access this gives to a wide range of provision in schools that will be particularly tailored or enhanced for that area. The three areas in which we still intend to allow it—PE and sport, performing and visual arts and modern foreign languages—are those where specialist schools are expected to make enhanced provision as a part of being a specialist institution. For example, modern foreign language specialist schools will typically offer a wider range of languages, including minority languages and sometimes Mandarin Chinese and Russian. These are languages which, with the best will in the world, are not going to be generally available. To have a truly comprehensive system, it is right that where schools can offer an enhanced provision which could not be part of the normal expectation of what a school can provide, parents and pupils should have access to it where the school thinks it is desirable.

The noble Baroness asked me for the number of schools using the 10 per cent selection provision. While I do not have the precise figure because I am not sure that we are aware of it, it is not a large number. But it is of immense value to some schools for the reasons I have given. Again, we intend that design and technology and information technology should not be included in the list for schools seeking to use the 10 per cent selection in the future, and we will consult on and revise the regulations in respect of aptitude selection at the same time as we consult on the school admissions code.

Turning to interviews for entry into sixth forms and to assess religious commitment covered by Amendments Nos. 169 and 170 spoken to by the noble Baroness, Lady Buscombe, I think that we have rehearsed our position on interviews so often that I hesitate to go through it again at just before midnight. Perhaps I may make two brief points. First, I should stress that the faith communities themselves—the last area in which interviewing was allowed—had reached a position where they wished to end interviewing as an admissions criterion. Only a very small number of schools were still doing it by the time we announced that we would seek to end this practice in primary legislation, and the faith communities have supported us. Secondly, we do not believe it should be any more necessary for schools to interview prospective candidates for entry to the sixth form than it is for entry into any other form. The use of, for example, minimum attainment requirements at GCSE level, as many schools now providing sixth form education currently use, or of other over-subscription criteria should be more than adequate to offer year 12 places in an objective and impartial way rather than relying on subjective interviewing.

In response to Amendments Nos. 144 and 145A moved by the noble Baroness, Lady Sharp, requiring an affirmative resolution of each House rather than the more usual negative procedure, we have already laid a skeleton school admissions code before your Lordships and we will publish a draft of the full code in September, allowing for full consultation and debate in the education community and with noble Lords.

Home-school agreements are specifically prohibited from being linked to school admissions processes and we do not believe it is right to change that, even though we think that the agreements can have value. Given that, we do not support Amendment No. 144. We believe that admission to a school should not be contingent on promises of good behaviour or any other judgments about past behaviour, and while we encourage schools to meet with parents to discuss home-school agreements, this must not be an interview to determine whether a child should be admitted to a school, but an opportunity to discuss the school’s policies and the role of parents in supporting their child as a member of the school.

Finally, on the interesting point raised by the noble Baroness, Lady Sharp, about the anonymisation of admission applications covered by AmendmentNo. 145, we believe that over time the issues around this should be considered. Looking at IT systems in their current state and the obligations this would impose, it would be a step too far to take immediately. There is also the practical issue of how to deal with siblings under anonymised systems which we have not yet been able to get our mind around. While we do not think this is something that can be done now, if we want to get to a system where it is truly criteria and no other factor weighing in the allocation of places to children, clearly there is something to be said for those arrangements. I know that this links with an amendment dear to the heart of the noble Lord, Lord Lucas, which he will move at what I hope is a better hour of the day, in respect of over-subscription criteria which use random allocation rather than proximity or banding. That is an oversubscription criterion that the new school admissions code will make permissible. In fact, only a tiny number of schools use it at the moment. It is widely used, for example, in the United States for charter schools. There is something to be said for it since it is manifestly fair, but it would involve quite a big departure from existing admissions practices in this country, which are largely governed by proximity. While we wish to make it possible, we do not think that it can be done against the wishes of schools. It would obviously impact on provision in a particular area, so it would have to be done in some form of geographical community, and it would need to be considered very carefully.

I hope from what the noble Lord said that we are about to be showered with some good news that this might be the sort of time that we are heading home. Before that, I ask him for some further good news, that it will also under the school admissions code become illegal for a school to take into account the position in the ranking of parental preferences in which that school has been placed. As he knows, I very much feel that schools that say, “We will not let you in unless you place us first on the list”, are causing a serious problem. My noble friend referred to that. I do not see it in the existing draft of the code; perhaps I am just missing it. Secondly, will the criteria in paragraph 133 of the draft code apply to Church schools? They are the main offenders under the criteria for socially selective systems. I would be delighted if they were no longer able to operate as they have been.

Is the noble Lord talking about paragraph 133 of the draft code?

Yes.

In respect of the noble Lord’s first point, while we intend to say that “first preference first” systems are poor practice, we do not intend to rule them out entirely. This will be a matter for the adjudicators to decide. In point of fact though, adjudicators have largely ruled against such admissions criteria where they have been used. We would expect that trend, if I can put it that way, to continue and to be strengthened by the new code.

Although I am disappointed by the Minister’s response to my Amendments Nos. 144 and 146, I am very pleased with his agreement to accept our Amendments Nos. 176, 177 and 178. I am extremely grateful to the Minister.

I am pleased that the Minister is going to look kindly on the concept of anonymisation, which is an important principle, and I am glad that he is prepared to look at it at length and consider ways of introducing it.

In relation to the point about academies and city technology colleges, I take on board what the Minister said. Indeed, I predicted that he would tell me that all these restrictions applied to the academies, city technology colleges and city colleges of technology for the arts. If that is the case, why are they always excluded from the Bill? Why are they not included in the Bill? It would make a lot of sense for them to be included. The Minister is right in saying that the draft code has been issued and that there will be plenty of opportunity for discussion and consultation on the draft code, but it is a very different issue from that of having affirmative resolution for both Houses as distinct from leaving it to negative resolution. If the code is to be mandatory, there is some point in the position that it should be under the affirmative resolution procedure. However, at this very late hour, it is time to withdraw the amendment. We can come back to it at a later stage if necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 143B and 143C not moved.]

Clause 37 agreed to.

[Amendments Nos. 144 and 144A not moved.]

Clause 38 [Code for school admissions]:

[Amendments Nos. 145 and 145A not moved.]

Clause 38 agreed to.

[Amendments Nos. 146 and 146A not moved.]

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.