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Lord Kingsland: My Lords, the Minister will recall that, during the passage of the Act, concerns were expressed by a number of noble Lords about the extent to which it will fall foul of the anticipated Human Rights Act. Can the noble and learned Lord tell us what consultations have been made by the Government before these regulations were drafted and issued?
Can the noble and learned Lord also say something about the anticipated cost of these proposals? I am aware that, in another place, Mr. Hoon, the Minister of State, gave some preliminary figures. In relation to anti-social behaviour orders he anticipated a figure of something like £5 million over a period of five years and in relation to sex offender orders a figure of something in the neighbourhood of £100,000. He said--and of course the approach is quite accepted by this side of your Lordships' House--that, as regards the other two orders, there will be pilot schemes before final decisions are taken about the way they are to be applied.
My question in relation to these sums is the following. What assumptions do they make about the kind of representation that will be furnished? We know from the proposed order that the duty solicitor and other solicitors are likely to be representatives; but we also know that the Government are giving the whole question of representation in courts and tribunals some serious thought. If the Government change their mind about the kind of men and women who act as representatives in these cases, what effect would that have, if any, on their anticipated cost figures?
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord for his helpful questions. As regards consultations, there have been discussions during the course of this week with both the Law Society and the Bar Council about these orders. As regards the European Convention on Human Rights, the Lord Chancellor's Department has considered what Article 6 of the convention requires. They and I are satisfied that this measure meets the requirements of the convention.
As regards costings, I am afraid I shall not take the matter much further than my honourable friend in another place. Earlier costings indicated that costs of the anti-social behaviour orders would be in the region of £5 million a year and the cost of the sex offender
I can give the noble Lord those general estimates. I can indicate that piloting is taking place. One of the purposes of the piloting is to try to find out how much it will cost, inter alia, in relation to the legal representation that respondents may have in these particular orders. However, I do not think that I can take it much further than that.
I am not sure whether that meets the noble Lord's concerns, but I think that it gives him the scale of the costs we anticipate. Quite sensibly, we will only be able to come back with more detailed figures once we know the results of the piloting.
Lord Kingsland: My Lords, before the Minister sits down, perhaps I may press him a little further on his last answer. I was seeking to probe the definition of representation in relation to costs. I wanted to see how helpful he could be in anticipating any widening of the categories of individuals who would be entitled to represent the people subject to these orders.
Lord Falconer of Thoroton: My Lords, the subtlety of the Question is lost on me. I think that, in practice, in most cases the person providing the representation for a respondent to such an order will be the duty solicitor. That appears to satisfy the noble Lord. In those circumstances I shall sit down. I commend the regulations to the House.
Lord Renton: My Lords, before the noble and learned Lord sits down, perhaps I may say that I have listened to a very interesting discussion. However, so far as representation is concerned, if I remember rightly the Legal Aid and Advice Act refers only to legal representation, and that is all we are considering on this occasion, or am I wrong about that?
Lord Falconer of Thoroton: My Lords, perhaps I had better give myself a way out in relation to this by saying, "I shall write and correct myself if I am wrong", which I am bound to be. I think we are talking about the sort of representation which is acceptable to the magistrates' court and which can be funded by the legal aid scheme. However, I do not know whether or not, in certain cases, with the leave of the magistrates' court it is appropriate for a legal executive, for example, to appear in front of a particular magistrates' court with its consent and whether that would be paid for by the legal aid fund. I suspect that it probably would be, in certain cases. Subject to that, we are talking about representation by a lawyer.
The regulations arise from provisions set out in Sections 104 to 108 of the School Standards and Framework Act. They were laid before the House on 21st October and have been considered by the Joint Committee on Statutory Instruments.
As your Lordships will recall, the grammar school ballot provisions of the School Standards and Framework Act implement our manifesto commitment that any changes in the admission policies of grammar schools will be decided by local parents. I do not therefore want to go over old ground concerning the principle of giving parents an opportunity to decide on the future of selective admissions at grammar schools. That was very thoroughly debated during the passage of the Bill.
The principle underlying these regulations is that the ballots must be fair and workable. There would be no point in setting up a ballot system which favoured one side or the other. What we want is a fair test of parental opinion.
As a result of the recommendations of your Lordships' Select Committee on Delegated Powers and Deregulation, the Act specifies what the regulations should contain in considerable detail. So the major planks of the regulations are laid down by the Act. Most of the additions are mere detail on how to administer the process, though I shall mention significant points.
As far back as 20th March the Government made available a note indicating what they intended the regulations would cover. That was sent to the noble Baroness, Lady Blatch, and the noble Lord, Lord Tope. The arrangements set out in the note were reflected in the draft regulations issued for consultation on 3rd June, which were also made available before Committee stage of the Bill. These were sent to all grammar schools, local education authorities, and a range of national organisations. The revised regulations which we are debating today take account of their comments.
The regulations designate Electoral Reform (Ballot Services) Ltd. to take on the functions of the ballot administration, which the Act says shall be done by a designated body. This company was chosen by tender and, as many Members of the House know, is very experienced in running ballots.
The Act laid down a specific distinction between the electorate for two sorts of ballot. In an area ballot all the parents resident in the area, whether or not their children are at any type of school, together with parents from outside the area who send their children to maintained schools in the area, will have a vote. However, in a "feeder school ballot" different arrangements will apply. Parents of children at primary schools which have sent a specific number of children to any of the schools in the group over a prescribed period will be able to petition and vote.
So, the question of which parents are eligible to petition or vote in the various arrangements was largely spelt out in Section 106 of the Act. The additional details of the numbers of pupils and period of time in the definition of a feeder school are the same as in the consultation draft of the regulations. A feeder school will be one from which a total of five pupils have transferred to the grammar schools concerned over the previous three years. To be clear, this is five children, not 15 over the three-year period. Consultation responses sought both a higher and a lower threshold of pupils for feeder schools. But we did not change the current draft regulation, because five pupils over three years seems a sensible minimum to constitute a strong link with a grammar school.
In line with the consultation draft, parents whose youngest children are in the sixth form will not be eligible to petition or vote, because these arrangements do not apply to selective admission arrangements at sixth-form level. This change from the note prepared in the spring was confirmed at Committee stage by my noble friend Lord McIntosh of Haringey. It was because selection continues to be permitted for entry to the sixth form, and because in some areas pupils from comprehensive schools go to sixth-form colleges, while grammar schools in the same areas have sixth forms: the electorate would thus be biased.
During debates on the Bill the noble Lord, Lord Baker of Dorking, was very concerned about access to electoral lists. The regulations repeat what my noble friend said at the time, namely that only ERBS will have access to the complete list of eligible voters. Eligible parents of children at a particular school will be entitled to request to see that school's list of eligible parents--minus any of those parents who have indicated that they do not wish to have their details disclosed.
The regulations spell out that petitions can run for up to a school year, but cannot carry on into a second school year. The information to be entered on petitions is specified so that the ballot company has adequate information to check that signatures are eligible. The words to appear on the petitions are also specified.
The regulations spell out the ballot question, which we have simplified as a result of consultation; parents will be asked to tick yes or no to the statement, "Are you in favour of all the schools listed introducing admission arrangements which admit children of all abilities?". In the case of a stand-alone ballot, the grammar school's name will be inserted in the question; otherwise, the ballot paper will list the schools concerned.
The regulations explain that ERBS will notify specific relevant people when there is to be a ballot. It will send out ballot papers for parents to return. A ballot will normally follow straight on from the declaration that a petition is valid, balloting the same set of eligible parents. The exception to this will be the first year, when no ballot will be held before September 1999. This is so that new admission consultation arrangements can be in place before any ballot results need to be implemented. In this first year, the electorate will be updated for the new school year before the ballot papers can be sent out.
The Act specified how a ballot result will be determined; namely, by simple majority of those voting, because the substantial petition threshold will already have demonstrated a significant degree of local feeling.
The regulations lay down the timescale within which new admission arrangements must be implemented if there is a ballot result in favour of change. This will depend on when the result is declared. Where ballot results are declared on or before 31st December, grammar schools will need to consult on revised admissions proposals in time to have them in their prospectus for the following September, for intakes the September after that. For ballot results declared between January and the end of the school year, the new arrangements will be required for the second September following the ballot, for intakes in the third September. This is a change resulting from consultation responses which said that the trigger date on which we
Finally, the regulations set out the circumstances in which a ballot result may be declared void. One of these circumstances is if someone has behaved in a manner which is not in accordance with the ballot information code at Schedule 4, and this is likely to have significantly affected the result of the ballot. This code is intended to set a standard for fairness and balance in the presentation of information to parents.
I am conscious that several noble Lords were concerned during the passage of the Bill about the level of information available to parents. The ballot code provides a standard for how information should be provided, but your Lordships need not fear that that is all the advice that will be available. Noble Lords will, of course, recall that Section 107 of the Act spells out that school governing bodies and local education authorities may use public funds to give out factual statements, fairly presented, and assessments that are fair and reasonable of what might happen in the event of a ballot for change, as well as statements of their own intentions in the event of such a ballot result. The Act provides for statutory guidance from the Secretary of State about interpretation of fairly presented and fair and reasonable. This will be provided in the guidance now being prepared.
The regulations provide the detail necessary to implement Sections 104 to 108 of the School Standards and Framework Act. They will establish a fair and workable mechanism for local parents to decide on the future admission arrangements to grammar schools. I therefore commend them to the House.
Moved, That the draft regulations laid before the House on 21st October be approved [46th Report from the Joint Committee].--(Lord Hunt of Kings Heath.)
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