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Lord McIntosh of Haringey: My Lords, the provisions are not on the face of the Bill. They will be provided for in the regulations, in particular under Clause 12(3) which contains the various provisions for regulatory powers. They are not and cannot be spelt out in detail on the face of the Bill.

Baroness Blatch: My Lords, I will look at subsection (3) again. The noble Lord is saying that the regulations

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contain a power to contract out to a third party which could be wholly private, even commercial. A defined set of criteria will be set out by the education action forum, or collectively by the governing bodies, to turn the school around. Perhaps the Minister will confirm that because I have looked at the provisions carefully and I do not interpret that power.

Lord McIntosh of Haringey: My Lords, at the risk of offending against the rules on Report, the amendment uses the word "leased". We do not and would not use that word because we do not believe it to be appropriate. However, it is possible for the management of a school under the regulations provided for in Clause 12 to be delegated in the way which the amendment intends. New legislation is not required.

Baroness Blatch: My Lords, I am re-reading subsection (3), which is linked to subsection (2). I should be grateful if the Minister could write to me telling me specifically how the provision will work. If that is the case it is good news, but it is not the understanding of some of the individuals and companies who have seen the Minister and requested involvement in single schools in order to turn them around. It would be helpful to have that spelt out.

Subsection (3)(a) states:

    "as to the circumstances in which the governing body of a participating school may make arrangements under subsection (2)".
Subsection (2) is about discharging the function on behalf of the governing body. It does not use the word "leased", but it does not go as far as contracting out. There is nothing about the conditions under which it contracts out. There is nothing to say whether profits can be made. My understanding is that unequivocally the statement has been made by Ministers in this House and in another place that profits cannot be made in this way. Subsection (3)(b) states:

    "for the procedure to be followed by such a governing body in connection with the making of any such arrangements".
Subsection (3)(c) states:

    "for the procedure to be followed by an Education Action Forum when discharging any function by virtue of that subsection".
I find it difficult to find the powers in the Bill and it would be helpful to have that properly spelt out.

Lord McIntosh of Haringey: My Lords, I can do slightly better than writing to the noble Baroness. Again, I apologise for any breach of Report procedures. As the noble Baroness has recognised, Clause 12(2)(b) means that the forum may assume responsibility for the discharge of functions. Schedule 1, paragraph 1, means that the forum can do anything incidental to the carrying out of its functions. I was speaking of those powers. I will gladly write to the noble Baroness, too.

Baroness Blatch: My Lords, not only would I like the noble Lord to write to me, but I would like to know what he means by "anything". Can schools be hived off into the private sector never to return again? Is the noble Lord saying that there is a power for them to do anything without any procedures whatever for parents

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and governors to be formally consulted and formally to take a view about whether that is what they want for their school and their children?

I turn to Amendment No. 38. Again, I have received another incredibly technical letter from the department explaining who employs teachers. I understand that the local authority employs the teachers. I realise that that does not apply to voluntary-aided schools. The noble Lord said that any school could cede its powers. It would be its decision to do so if the governors ceded them to the education action forum. However, they cannot cede the employment of the teachers. They may be able to see the day-to-day management of teachers or through procedures set out in the Bill disapply pay and conditions, but not the employment of the teachers. I understand from the letter that at the end of the day the local authority remain the employers. I was trying to break that link so that as regards an important issue relating to the management of the quality of teachers they should have full authority and not have to negotiate through a local education authority.

The noble Lord has promised to write to me with further clarification and to couple that with an explanation of what "any" action means. Perhaps he will tell me what are the limits of the power. I remember when I sat where the noble Lord now sits. If I had advocated that a Secretary of State under secondary legislation, not even primary legislation, would be given the power to do anything whatever, the noble Lord would have been first to say that the limits of those powers should be defined.

9 p.m.

Lord McIntosh of Haringey: My Lords, the noble Baroness must look at Schedule 1 because it states:

    "An Education Action Forum may, subject to sub-paragraph (2)",
which is concerned with the power to borrow money,

    "do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of its functions".
If that is not adequate for the noble Baroness, I shall write to her about it.

Baroness Blatch: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Clause 13 [Disapplication of pay and conditions order in relation to teachers at participating schools]:

Baroness Blatch moved Amendment No. 40:

Page 11, line 35, leave out ("For") and insert ("After").

The noble Baroness said: My Lords, we have dealt with this issue before. However, it caused disconsolation because the Government are not even prepared to consider the possibility of allowing the 1991 Act to stay in play to allow existing schools to disapply those conditions, irrespective of how many use that provision now. That is one rather barren argument that was used by the Government. Nevertheless, the schools which use that disapplication procedure do so to effect and believe

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it is very important. I should mention in that context the Oratory School. Its wings will be clipped by the measures contained in this Bill.

I make no secret of the fact--and the Minister will not be surprised--that I believe that grant-maintained schools should remain part of the diverse provision available to parents and the community. However, my amendments are not dependent on that. I believe that the disapplication facility which is to be made available to education action zones should be made available more widely, with perhaps a system in place for approving the application of a school which wishes to disapply the provisions in relation to pay and conditions of service. I beg to move.

Lord McIntosh of Haringey: My Lords, I well recall that this is an issue which caused some difficult debate in Committee. I hope that by my reply I can help us through that debate.

We argue that the pay and conditions opt-out was not used widely when it was available to individual schools. In fact, as the noble Baroness was almost good enough to remind us, it applied to only two schools under the grant-maintained system. We argue that education action zones are areas for experimentation, but the noble Baroness argues implicitly that because GM schools are already doing that it is not an experiment.

A key part of our philosophy on education action zones is that they are areas which allow experimentation beyond the norm allowed in the rest of the sector. That means that although the system we have created for the school sector works in general, there will always be some areas which need additional support and flexibility to meet the same demanding standards. Therefore, we are determined to make sure that the teachers pay and conditions document is appropriate for schools elsewhere.

We have added considerable flexibility. We have added the possibility of advanced skill teachers, which are an extremely exciting prospect. After this year all schools will be able to take advantage of advanced skill teachers. They do not need to opt-out. There are two exceptions; namely, those two schools which opted out of the document under the previous administration. We do not wish to cause undue disturbance to the way those schools run by putting them back inside the document.

However, in zones, however good the current system, we want schools to have the opportunity to look ahead and experiment further because of the particular challenges they face. That is why the opt-out is appropriate in zones and almost always, with those two exceptions, inappropriate outside them. Therefore, I hope that the noble Baroness will not press this amendment.

Baroness Blatch: My Lords, I am deeply disappointed by that answer, as I was in Committee. There seems to me to be the most incredible irony. Education action zones are being established to deal with failing LEAs and failing schools. They are designed to put right some of the failures of the past. They will enjoy the freedom of being able to disapply

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the national curriculum and pay and conditions. I accept that my amendment would apply to only two schools so far, but those schools have more than proven their ability to manage their own affairs. However, they will be denied that freedom. That seems to me to be absurd. It costs the Government absolutely nothing to allow them that freedom. They have merely to agree to place a few words on the face of the Bill.

The Government have repeated an argument which they used before and I dismissed that when I introduced the amendment. They said that the power is not widely used. Why should those two schools lose that facility? What is the argument against my proposition? The Government's argument is absurd and has no intellectual depth whatever.

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