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Baroness Blackstone moved Amendment No. 206A:


Page 57, line 12, leave out subsection (2).

On Question, amendment agreed to.

Clause 74, as amended, agreed to.

Baroness Blackstone moved Amendment No. 206B:


After Clause 74, insert the following new clause--

("Stamp duty
Stamp duty

.--(1) Subject to subsection (2), stamp duty shall not be chargeable in respect of any transfer to a local authority under any of the following provisions, namely--
(a) paragraph 4 or 7 of Schedule 21 or any corresponding provision of regulations under paragraph 10 of Schedule 2,
(b) paragraph 4(2), 5(4), 6(2)(b), 7(2) or 8(2)(b) of Schedule 22, or
(c) any regulations under paragraph 4 of Schedule 8.
(2) No instrument (other than a statutory instrument) made or executed under or in pursuance of any of the provisions mentioned in subsection (1) shall be treated as duly stamped unless--
(a) it is stamped with the duty to which it would be liable but for that subsection, or

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(b) it has, in accordance with section 12 of the Stamp Act 1891, been stamped with a particular stamp denoting that it is not chargeable with any duty or that it has been duly stamped.
(3) In subsection (1) any reference to a transfer under any provision or regulations mentioned in that subsection shall be read as a reference to a transfer under that provision or those regulations taken with section 198 of, and Schedule 10 to, the Education Reform Act 1988 if those provisions of that Act apply to the transfer by virtue of any provision of this Act or that Act.").

The noble Baroness said: I beg to move.

Lord Lucas: This is the amendment about which I warned the noble Lord, Lord Whitty. When this amendment fell to be discussed I left the noble Lord, Lord Whitty, with a question to which I have not yet had an answer. This clause sets out a number of exemptions from stamp duty, principally when they are not already exempt because of the charitable status of foundation schools or other similar schools. It seems to me that the transfers envisaged in paragraph 1(3)(a) were of an exactly similar nature to those which were being exempted by this amendment, but had not been included in this amendment. I would be grateful to have now an explanation of why they have been left out.

Lord Whitty: I apologise to the noble Lord for not covering the point. If the Committee will permit, I shall pass on to him detailed information. The advice which has just arrived indicates that the exemption is only for compulsory transfers and not for voluntary transfers. If the noble Lord requires further information I shall write to him.

Lord Lucas: Indeed, but the first word of paragraph 1(3)(a) is "required". If that is voluntary it is a new use of the word and one which is strange to me. Perhaps it is another example of the strange English employed by those who write Bills, but I doubt it. It seems to me that there is a lack of voluntariness about the word "required". I am happy to wait for the noble Lord to write to me.

On Question, amendment agreed to.

Clause 75 agreed to.

Clause 76 [Application of employment law during financial delegation]:

Lord Lucas moved Amendment No. 207:


Page 57, line 38, leave out ("or expedient").

The noble Lord said: I beg to move Amendment No. 207 and I shall also speak to Amendment No. 208. Principally, I am interested to hear from the Minister what use they intend to make of the powers in Clauses 76 and 77. The particular point that I am making in these amendments is that I find it unsatisfactory that when dealing with such important issues as employment law and the trust deed or instrument constituting a school, the Secretary of State has powers to make amendments when he finds it expedient. I understand why it might be necessary to have such powers when it is necessary, but it does not seem to me that either of these areas of law or deed are

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such as should be tampered with merely because it is the easiest way to do it rather than because it is necessary. I beg to move.

9.15 p.m.

Lord Whitty: The provision in Clause 76, which essentially rolls forward the current arrangements, has remained more or less unchanged since its introduction in the 1988 Education Reform Act. Its purpose is to give the Secretary of State the means to ensure that governing bodies are accountable under employment law for those employment functions they carry out in relation to school staff whose employer is the local education authority. The removal of the word "expedient" would curtail the scope of the Secretary of State for deciding what is appropriate to make sure that governors are properly accountable for their employment functions. I do not consider that it is either necessary or appropriate to alter this provision.

It is important to retain the scope for the Secretary of State to make modifications that he considers necessary. It allows him to make modifications which, although they may not be strictly necessary in a tightly defined interpretation of the word, may be expedient for reasons which make good sense. For example, it is not strictly necessary for the Secretary of State to modify the requirement in the Employment Rights Act for the employer to provide an employee with a statement of the written reasons for dismissal. In such circumstances, the LEA could provide this to the employee after asking the governing body what the reasons are. It is not strictly necessary to modify this element of employment law, but it is expedient to do so because it makes administrative sense for the governing body to set out its reasons for dismissal directly to the employee. The inclusion of the word "expedient" simply allows the Secretary of State to adopt a common sense approach to this function.

As regards Clause 77, similar arguments apply. It primarily deals with circumstances where there is conflict between the terms of a school's trust deed and statutory requirements. The provisions in the clause are not new. Existing legislation contains similar powers. The trust deed might, for example, include provisions about membership of the governing body which were incompatible with the requirements for the legal category to which the school has been allocated. In these circumstances, an efficient mechanism for modifying the trust deed is needed. The Secretary of State would modify the school's trust deed to bring it into line with the relevant requirement. But, before doing so, he would consult the school's governing body, its trustees and the appropriate diocesan body where relevant.

Amendment No. 208 seeks to remove the words "or expedient". But by its nature, the clause is designed to deal with circumstances which are difficult to foresee. There are around 8,000 schools with trust deeds and the terms of these trust deeds vary considerably from school to school. Governing bodies are required to run schools in accordance with any trust deed, subject to any statutory provision. There may be circumstances in which it would not actually be impossible for them to comply with both the trust deed and the statutory

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requirements, but it would be very difficult for them to do so. In these circumstances, it would be expedient rather than necessary for the Secretary of State to modify the trust deed.

The words "or expedient" would allow the Secretary of State to respond more flexibly to requests from governing bodies or trustees. The modifications they ask for might not be strictly necessary, but might be helpful to the school. Removal of that would prevent the Secretary of State from acting in the interests of schools or, alternatively, they would have to seek modifications through the more laborious mechanism provided by charity law. For example, the trustees of a voluntary aided school may state that six specified different and separate bodies must appoint the foundation governors. That could be accommodated within statutory requirements, so it is not necessary to change, but everyone concerned with the school might regard it as over-complicated. In those circumstances, the Secretary of State could use his powers under the "or expedient" provision to ensure that those changes could be made; otherwise, they would have to apply to the Charity Commissioners to alter the terms of the trust deed.

I hope that with those explanations we can keep the existing provisions relating to "or expedient" in the two clauses. I ask the noble Lord to withdraw his amendment.

Lord Lucas: I am grateful to the noble Lord for that explanation, which is exactly what I had hoped for. These are wide powers as drafted. I accept the noble Lord's explanation of how they will be limited in use. I am also grateful to him for his suggestion that anything we put into law must necessarily be good and regarded as such. I hope that he will apply that principle more widely. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 agreed to.

Clause 77 [Modification of trust deeds]:

[Amendment No. 208 not moved.]

Clause 77 agreed to.

Clause 78 [Modification of provisions making governors of foundation or voluntary school ex officio trustees]:

Baroness Blackstone moved Amendment No. 208A:


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