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Lord Peston: My Lords, I seek clarification on something I believe my noble friend the Minister said. In my view, Schedule 17 is a very considerable addition to our legislation and one I strongly support. I thought my noble friend said that the contents of Schedule 17 either repeat what is already in statute as regards such matters or, indeed, improves what is already there. That accords with my view. Of course, parts of Schedule 17 are also about suspension and dismissal. Indeed, it makes the whole thing much more objective and open than it was before. Surely that is one particularly good reason why we should accept Schedule 17 as it is, rather than seek to amend it.

Lord Whitty: My Lords, I believe I said that Schedule 16 and 17 between them either repeat existing legislation and clarify it or put into legislation provision that was previously in articles of government and, therefore, accepted by schools. So we have clarity of provision in those two schedules are regards staffing and related matters. I am sure that most schools would welcome that clarity. Indeed, it provides flexibility and helps promote standards in appointment procedures and will thereby improve the standards of teachers.

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It would be wrong to accept these amendments. They take the guts out of Schedule 17 to the detriment of quality in both areas. I give way to the noble Baroness.

Baroness Blatch: My Lords, before the Minister sits down and before I respond to his reply, can he explain in more detail how my amendments would prevent the employment of supply teachers?

Lord Whitty: Yes, my Lords. As I see it, by virtue of its provision that,

    "a teacher shall be employed by the governing body under a written contract of employment"

without qualification, Amendment No. 20 would prevent short-term supply situations being covered by a teacher from a teaching agency.

Baroness Blatch: My Lords, I still do not understand; indeed, I do not understand the impediment at all. Such schools have been employing supply teachers without the provisions contained in Schedule 17. I do not believe that there is anything in my amendments which means that any school would have no teacher for a class. However, be that as it may. I believe that there is a possible printing error in my Amendment No. 5. It should say:

    "In default of such arrangements".

as opposed to,

    "An default of such arrangements".

However, that is a minor point.

The Minister referred to Amendment No. 13 and said that it was faulty because it refers to Section 61(1A) and not to Section 63(1). Again, can the Minister tell me why? In fact, Section 63(1A) in the amendment refers to subsection (1A) in Amendment No. 5.

Lord Whitty: My Lords, I am not entirely sure that this interrogation is in order at this stage of the Bill. However, perhaps I may try to clarify the matter. Presumably the intention of Amendment No. 5 is to effect changes in Schedule 12 in relation to Section 63(1), to which the draft amendment applies, rather than Section 63(1A). Indeed, Section 63(1A) makes no reference to arrangements; it only refers to not having arrangements. Therefore, it should apply to the previous clause.

Baroness Blatch: My Lords, my understanding is that Section 63(1A) refers to the new subsection (1A) in Amendment No. 5. The intention is that such arrangements which disapply the provisions of Schedule 17 to a certain number of schools would in fact apply where a school was in default of them. Those arrangements are set out in subsection (1) of Amendment No. 5 which says:

    "Arrangements concerning the staffing of foundation, voluntary aided and foundation special schools may be made in the instrument of government."

Thereafter, subsection (1A) should read:

    "In default of such arrangements, Schedule 17 shall have effect".

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However, that is a technicality. No doubt if I am wrong, the noble Lord will correct me in writing.

I believe the noble Baroness, Lady Thomas, was worried about the special treatment of some schools. Voluntary aided schools have enjoyed autonomy for a long time. Although the right reverend Prelate from time to time says that he does not want special treatment for voluntary aided schools, they have particular arrangements for employing staff in their schools and special arrangements as regards the nature of the staff they employ. Grant-maintained schools have enjoyed a good deal of freedom and flexibility which has been reflected in their articles of government. This Bill sets out to destroy that. Although there is now to be a model form of articles under Schedules 16 and 17, that is a strait-jacket because it comprises one model for all schools and it does not suit all schools. Some schools have enjoyed much flexibility but will lose it under the present arrangements.

I have enormous sympathy with the other point raised by the noble Baroness, Lady Thomas. I would be happy to see such measures made available to all schools. I believe that the more flexibility schools have and the more freedom they have to control the quality of their staff, the better. The degree of mistrust on the Government Benches of the schools which have enjoyed this flexibility so far is profound. They refer to some grant-maintained schools as good schools. They talk of excellent schools and of not permitting undue interference in excellent schools and of leaving them to get on with what they do best. However, the Minister argued against that view. We have one Minister saying one thing and another Minister saying another. The noble Lord referred to things going wrong. I say in defence of the schools that when they are using their own money to pay staff, they make a real effort to ensure that they employ the best possible staff. As far as possible, they do not employ poor quality staff as they are costly to the school.

I refer to the concept that an LEA remotely understands all the nuances and the needs of a particular school better than the school itself. That is not always the case. I refer also to the idea that the LEA has the monopoly of appointing staff. Manchester LEA has just received the most scathing report from Ofsted. The idea that Manchester LEA with its poor performance will become the arbiter of which staff are employed in schools is, frankly, a nonsense.

The noble Lord also said that schools may fall foul of employment law. Is there any suggestion that schools which have enjoyed this flexibility have fallen foul of the law? They are as subject to the law as the local authorities. We are all subject to the law. The law is the law. Those schools are subject to the law. One cannot suggest that schools will make mistakes in this area and will fall foul of the law but LEAs will not, and that the provisions set out in Schedule 17 will somehow prevent that.

My understanding is that talks are continuing between grant-maintained schools, the Prime Minister, the education advisers at No. 10 and education advisers in the department. I believe some progress will be made

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on these issues. I believe there is an understanding inside No. 10 that this is a restrictive schedule and that something should be done about it. I believe there will be some movement on this at some stage even after the legislation has been passed and that ways will be found to loosen some of the ties. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 106 [Admission for nursery education or to nursery or special school]:

5.30 p.m.

Lord Whitty moved Amendment No. 6:

Page 78, line 37, leave out from ("schools") to end of line 39 and insert--
("(7) Subject to subsections (8) and (9), nothing in this Chapter applies in relation to children for whom statements of special educational needs are maintained under section 324 of the Education Act 1996.
(8) Any provision made by, or (as the case may be) by virtue of, section 92 or 100(3) to (6) or this section applies, or (as the case may be) may be made so as to apply, in relation to such children.
(9) Such children shall, in addition, be taken into account for the purposes of--
(a) the reference in section 94(5) or (9) to a number of pupils, and
(b) the fixing of admission numbers under section 101 and the determination, variation and review of standard numbers under Schedule 23.
(10) In subsection (8) the reference to any provision made by this section includes a reference to subsection (4) only so far as it has effect for the purposes mentioned in subsection (9).").

The noble Lord said: My Lords, I apologise to the House for bringing forward this amendment at this late stage. However, it is necessary because it clarifies the important question of whether children with statements of special educational needs admitted to a mainstream school should count towards the school's published admission number when determining whether other, non-statemented pupils should be admitted. The amendment also allows the Secretary of State to give relevant guidance in the code of practice.

The clarification is a little complex. I should explain that under Clause 94 one of the grounds upon which a non-statemented child may be refused admission to the school preferred by his parents is that his admission would cause prejudice to efficient education or the efficient use of resources; for example, because of the measures which would have to be taken to ensure that infant class size limits were met. But this ground may not be relied on by the admission authority unless the number of applications for admission exceeds the relevant standard number determined under Schedule 23, or any higher admission number fixed under Clause 101(1).

However, under Clause 101(6) as presently drafted, statemented pupils would not count towards a school's published admission number. Accordingly, in the case of an infant school with a single reception class and a standard number of 30, the admission authority would have to admit 30 non-statemented pupils up to that limit irrespective of whether it also had a duty to admit one

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or several statemented pupils. At the same time, it would have to ensure that no child was in a class of more than 30. That may be a difficult circle to square.

The Government's view as reflected in this amendment is that statemented children who are known about at the time of the admissions round should be included in the count of pupils for the purposes of Clause 94. We think it would be artificial that the presence of such children cannot be taken into account when determining whether or not that would cause prejudice to efficient education.

Indeed, under the Education Act 1996, statemented pupils count towards a school's standard and admission numbers. Unfortunately, this was overlooked when what is now Clause 106 was drafted. This amendment is therefore designed to restore the position which applies under the 1996 Act.

The amendment would widen somewhat the scope of the guidance in the admissions code of practice. It would allow for guidance to relate to the admission of children with statements to mainstream schools and the effect on children without statements. The amendment also carries over the provision in the Bill for regulations under Clause 100 to require LEAs and governing bodies to publish information concerning the admission of children with statements. I believe this amendment is necessary. I commend it to the House. I beg to move.

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