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Lord Sewel: I am intrigued at what the noble Earl, Lord Lindsay, thought I was going to say--perhaps we can have a conversation afterwards. I find his answer totally unconvincing. At this stage I shall beg leave to withdraw the amendment but it is again something to which we may wish to come back.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Clause 35 agreed to.

Clause 36 [Short title, commencement and extent]:

[Amendments Nos. 42 to 45 not moved.]

The Earl of Lindsay moved Amendment No. 46:


Page 20, line 1, leave out from first ("to") to end of line and insert ("subsections (4A) and (5) below, this Act extends to Scotland only.
(4A) Section 26 of this Act extends to England, Wales and Northern Ireland as well as Scotland.").

The noble Earl said: I spoke to Amendment No. 46 when moving Amendment No. 33. I beg to move.

On Question, amendment agreed to.

Clause 36, as amended, agreed to.

Schedules 1 to 5 agreed to.

Schedule 6 [Repeals]:

Lord Carmichael of Kelvingrove moved Amendment No. 47:


Page 31, column 3, leave out lines 4 to 7.

The noble Lord said: In moving this amendment perhaps I may speak also to Amendment No.48. The amendments ensure that education authorities retain some discretion with regard to how they discharge their functions as education authorities. The repeals procedure will, by deleting the word "general" from each of Sections 2 , 19(1) and 65F of the Education

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(Scotland) Act 1980, give the Secretary of State power respectively to prescribe requirements to which every education authority shall conform, which are to apply to the premises and equipment of educational establishments under the management of education authorities and relating to the conduct of schools making provision for recorded children or recorded young persons. There is concern that the Secretary of State, by being empowered to make regulations prescribing requirements, rather than general requirements in relation to the matters outlined above, will be able to restrict education authorities' ability to discharge their functions. We should therefore like the Minister either to take this matter away and see whether there is going to be a diminution of power of the education authorities to discharge their functions, or accept the amendment in some form that will allow them to discharge their functions much as they have done for a very long time. I beg to move.

The Earl of Lindsay: I can reassure the noble Lord, Lord Carmichael, immediately that the repeals set out in Schedule 6 are not so draconian that we are removing all discretion from the education authorities--I believe he used terminology along those lines.

Amendment No. 47 would delete the repeals in Schedule 6 and the word "general" in Sections 2 and 19(1) of the Education (Scotland) Act 1980. Amendment No. 48 would delete the repeal in the same schedule and the word "general" in Section 65F of the 1980 Act. These repeals are minor technical changes responding to doubts raised by the Joint Committee on Statutory Instruments in the other place as to the vires of regulations made under Section 2 of the 1980 Act. The grounds of concern were that the wording of Section 2 might allow the prescription only of broad principles and not the making of detailed requirements. The power had previously always been interpreted as a power to prescribe requirements which are general in the sense of establishing rules which apply to education authorities across the board, but which prescribe duties in detail.

The purpose of the change to Section 2 and other similar powers in Section 19(1) and Section 65F of the 1980 Act is therefore to respond to the joint committee's criticisms and make clear that it is competent for regulations to impose detailed requirements where appropriate, and not merely to prescribe general requirements. The change has no policy significance. The Government remain in favour of less regulation not more regulation, as the entire Committee knows.

It is against that background, and the assurance that we are not seeking to clip in a draconian fashion the discretion of the education authorities, that I ask the noble Lord to withdraw the amendment.

Baroness Carnegy of Lour: I have listened carefully to what my noble friend has said. This is a very interesting point. I quite see how the drafting schedule has arisen, but he will have to ensure that the interference, as they see it, in local authority affairs by central government will not be made possible inadvertently on a number of other detailed issues

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because of this. The point being made is that it will have wider repercussions than intended in the Bill. It might not be possible to respond at this moment, but it would be nice to have some reassurance that the application is not wider than that which is precisely related to the Bill.

The Earl of Lindsay: Rather than risking misleading my noble friend Lady Carnegy I will write to her and copy the letter to the noble Lord, Lord Carmichael, on this specific point.

Lord Ewing of Kirkford: Before we leave this matter, I am interested in the noble Earl's response to my noble friend Lord Carmichael in that this schedule is in response to the concerns of the Joint Committee on Statutory Instruments. We are dealing with primary legislation and it is a House of Lords Bill. This Bill has never been before another place, so how does a House of Lords Bill of this nature--primary legislation--fit into the powers, duties and functions of the Joint Committee on Statutory Instruments? To whom was the advice from the Joint Committee on Statutory Instruments given? Was it, for example, given to the Scottish Office or was it given to the parliamentary draftsmen? Should there not have been reference at Second Reading to the fact that the Joint Committee on Statutory Instruments had commented? It is normal practice that when the joint committee refers to legislation, it is intimated to either House that the joint committee has commented on the proposed legislation. This has never been intimated until today, and, with great respect, this matter should have been intimated at the start of our proceedings, certainly at Second Reading. An indication should have been given that the joint committee had commented on this so that we were all aware of the background to the repeal provisions that are contained in Schedule 6 to the Bill. I find it very interesting indeed, having at one time been a member of the Select Committee on Procedure in another place. We are dealing here not with a statutory instrument but with primary legislation.

The Earl of Lindsay: I would point out to the noble Lord, Lord Ewing, that the Notes on Clauses deal with this matter and that those Notes on Clauses were published and made available to the House immediately after Second Reading.

Lord Ewing of Kirkford: After Second Reading?

The Earl of Lindsay: Yes, as is customary. I believe that we always endeavour to make Notes on Clauses available after the Second Reading of a Bill. I would refer the noble Lord to the final page dealing with Schedule 6 and I will endeavour to get a copy of it for him if that would help.

The history of this matter may be of interest to the noble Lord, given the specific questions that he has asked. When the School Pupil Records (Scotland) Regulations 1990 and the Further Education Student Records (Scotland) Regulations 1990 were made under this power, the Joint Committee on Statutory Instruments drew them to the attention of both Houses of Parliament and cast a doubt on their vires.

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The joint committee took a similar approach over the Testing in Primary Schools (Scotland) Regulations, which have since been revoked. The grounds of concern in both cases were that the wording of Section 2 might allow the prescription only of broad general principles and not the making of detailed requirements.

I hope that that casts some light on the noble Lord's doubts.

Lord Carmichael of Kelvingrove: I would not for a moment suggest that the noble Earl was other than trying to be helpful. If the noble Baroness, Lady Carnegy, grasped what he was saying, she has the great advantage of having a copy of the Notes on Clauses. I understand that the Notes on Clauses may have been in the Printed Paper Office, but I also understand that the normal courtesy--I am sure that it was not the Minister himself at fault--is that at least the Opposition Front Bench is sent a copy or is told that the copies are now available. When there are these complicated Bills with back references, most of us jump at the idea that there will be Notes on Clauses. It is a great help. I certainly had no intimation that there was such a thing.

Baroness Carnegy of Lour: The whole thing seems to me to have been entirely normal. Notes on Clauses were published after the Second Reading. I picked them up in the Printed Paper Office, as I always do. I see that there is an explanation here of the repeals that are referred to in Schedule 6. I had not spotted that until the discussion began. But that is completely normal. I do not know what normally happens to Opposition Front Benches because I have not been on one. I have always picked up Notes on Clauses of any Bill after the Second Reading, and if it is a Private Member's Bill one has to produce them oneself.


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