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Lord Pilkington of Oxenford: I should point out to the Committee that the Minister's new elegant hairstyle does not represent a change in generosity of spirit. I have two comments to make. I shall deal, first, with the position as regards our objection to the Secretary of State taking powers. Basically, on this side of the Committee, we hold the constitutional principle that when you make a law you ought to put on the face of the legislation the powers that are given to the executive. We have--and I acknowledge this fact--objected strongly to the Secretary of State taking such powers and the scrutiny committee supported us in that view. I am pleased, as indeed are all our noble friends, that the Minister has taken our views to heart and has introduced legislation accordingly. Therefore, when she said that we objected to the Secretary of State in such circumstances, that is quite true. We certainly objected to him taking arbitrary powers.
It has been a fundamental principle of the English constitution that we do not hand to unelected officials powers without appeal. I acknowledge that you give an appeal to a judicial review. But I can only endorse what noble Lords opposite have said; namely, that this is not a redress. Judicial review is only available to the wealthy. Therefore, our objection is that the executive has taken power to avoid its responsibilities without allowing for proper redress.
The Secretary of State is responsible to Parliament and has to answer to it. He also has to face people demonstrating outside his office. However, more importantly, in such a case he has to answer to the local MPs for the constituencies where the schools are situated. We therefore propose that the appeals procedure should enter into the long 200-year tradition of English democracy, from the Wilkes case onwards, and that the Secretary of State should be answerable to Parliament for his decisions which should be subject to appeal.
Secondly, it has been said that the adjudicator is local. However, he is not local; he is an official. The noble Baroness said earlier that he is official and that his virtue is that he should not be local. I accept that. It is like being a member of the Parole Board or chairman of the Broadcasting Complaints Commission, and so on. I do not understand how the Minister can now contradict what she said earlier today. She now says that he is local, but that is not so. As I said, he is an official who is going to judge such matters, but he is an official without appeal except to judicial review. I am sorry to repeat myself, but judicial review is not available to the poor.
We have been debating this matter since three o'clock this afternoon. I believe that the opinion of the Committee has been against these proposals. On
this side of the Committee, we feel that it was most unfortunate that Members of the other opposition party did not press their amendment to a Division. I regret that fact. Therefore, at this point and late in the evening, I should like to test the opinion of the Committee.8.47 p.m.
On Question, Whether the said amendment (No. 108) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 51.
Addington, L.
Aldington, L.
Anelay of St. Johns, B.
Baker of Dorking, L.
Biddulph, L.
Blackwell, L.
Blatch, B.
Byford, B. [Teller.]
Carnegy of Lour, B.
Carnock, L.
Chesham, L.
Cope of Berkeley, L.
Cox, B.
Dholakia, L.
Dixon-Smith, L.
Fookes, B.
Gray of Contin, L.
Lauderdale, E.
Leigh, L.
Lucas, L.
Luke, L.
Lyell, L.
Mackintosh of Halifax, V.
McNair, L.
Maddock, B.
Newby, L.
Nicholson of Winterbourne, B.
Northesk, E.
Norton, L.
Palmer, L.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Renton, L.
Rowallan, L.
St. John of Fawsley, L.
Seccombe, B.
Skelmersdale, L.
Strange, B.
Strathclyde, L. [Teller.]
Swinfen, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thurso, V.
Wise, L.
Young, B.
Archer of Sandwell, L.
Barnett, L.
Berkeley, L.
Blackstone, B.
Burlison, L.
Carter, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Beswick, L.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elis-Thomas, L.
Farrington of Ribbleton, B.
Fitt, L.
Gallacher, L.
Gilbert, L.
Gordon of Strathblane, L.
Grenfell, L.
Haskel, L.
Hollis of Heigham, B.
Hoyle, L.
Hunt of Kings Heath, L.
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Lockwood, B.
McCarthy, L.
McIntosh of Haringey, L. [Teller.]
Mallalieu, B.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Nicol, B.
Orme, L.
Ponsonby of Shulbrede, L.
Puttnam, L.
Ramsay of Cartvale, B. [Teller.]
Renwick of Clifton, L.
Ripon, Bp.
Scotland of Asthal, B.
Simon, V.
Smith of Gilmorehill, B.
Taylor of Blackburn, L.
Thomas of Macclesfield, L.
Walker of Doncaster, L.
Whitty, L.
Resolved in the negative, and amendment disagreed to accordingly.
8.55 p.m.
Lord Archer of Sandwell moved Amendment No. 109:
Page 118, line 8, at end insert--
. The Secretary of State shall make provision for ensuring that persons appointed as adjudicators receive appropriate training.").
The noble and learned Lord said: While the Chamber is thinning I should say that I come to this Committee as a johnny-come-lately. I was not able to participate at Second Reading. Had I done so, I should have been broadly supportive of my noble friend's proposals in this Bill. Certainly I should have been duly deferential because I have no qualifications as an educationist and I have never been a member of an LEA. The nearest I can approach such a qualification is as the husband of a former school governor.
The purpose of these amendments is to reflect the concern of the Council on Tribunals which I am privileged to chair. I am grateful to my noble friend for providing that the Council on Tribunals will exercise a supervisory role over adjudicators. This amendment reflects a long-standing concern of the council that those entrusted with the task of adjudication should be trained properly for that purpose. Those who are appointed adjudicators--whatever the method of appointment--are not likely to find themselves the beneficiaries of a sinecure. My noble friend the Minister and my noble friend Lord Peston said they hoped there would not be many appeals to the adjudicator. They may be right about that. They frequently are right on these matters. At that moment the noble Lord, Lord Pilkington, was in a less optimistic mode. I do not know who is right on that issue. However, I know that appeals are likely to arise when local objections are strongest, where controversy is most virulent and where those concerned are least open to conciliation.
It has been said that the adjudicator will be invited to reconsider decisions of LEAs and of governing bodies; those most immediately accountable to local communities. That is not totally unique in our constitution. He will exercise a judicial role. I imagine it is hoped he will be in a position to review the situation dispassionately; to hear the arguments objectively; and to apply his knowledge of educational principles so as to produce a coherent result. Perhaps that is not always so simple for LEAs or governing bodies which are more immediately subjected to pressure from those who are most concerned in the matter. One of the problems of any democracy is that accountability is not always easy to reconcile with objectivity.
I understand that the adjudicator will not be particularly knowledgeable about local conditions. I am bound to say that I never heard any of my noble friends in the course of these debates say anything to the contrary. Clearly, one of the virtues being claimed for the system of adjudicators is that they will be able to be rather more objective. They will not be so concerned with all the local political and social currents, and for that reason may be able to produce a more objective report.
My concern in tabling this amendment is not to pass judgment on the merits of a system of adjudicators but, if there are to be adjudicators, to ensure that the system will work properly and fairly. I can testify from my own experience as a constituency MP that few issues evoke such outbursts of feeling as admission to a school which the parents see as their preference.
Of this I am certain. The adjudicator will need a high level of skill, not only in controlling procedures, weighing arguments and reaching a reasoned conclusion; he will need to know how to defuse a very emotive situation, how to convince desperate parents that they have received a fair and proper hearing--and if, as I assume, at least some of the procedures are to be by way of a public hearing, how to retain control of a crowded hall when tempers are hot and insults fly.
The noble Lord, Lord Tope, who for reasons which I understand is not in his place, pointed out that there is not a complete analogy with planning inspectors. There are some similarities. The inspector who has to conduct a public inquiry into a proposed ring-road or a cutting through a stretch of woodland is sometimes faced with an outbreak of passionate emotion. By comparison with the adjudicator, his job is a doddle. This is a subject likely to strike much nearer to people's hearts.
Inspectors appointed to conduct local inquiries are now afforded proper training. I hope that no less a provision is intended for the adjudicators. I beg to move.
9 p.m.
Baroness Blatch: This is another amendment that I should prefer not to be supporting because, as the noble Lord knows, I do not agree with this appointment. Nevertheless, if there is to be an adjudicator--and our judgment is that, given the kind of vote in the other place, even if we vote successfully on this side of the Chamber, there will be an adjudicator--I support all the points made by the noble and learned Lord, Lord Archer of Sandwell. This is an important post. It will be a very exposed post. The noble Lord's comparisons between the operations of the adjudicator and the way in which a planning inspector operates, are points well made and I support them.
While the noble and learned Lord was speaking to the amendment, a question occurred to me in relation to a point made earlier by the noble Baroness about one of the advantages of the adjudicator not being of or familiar with the local area being to dispel any notion of his or her being parti pris. I therefore need to ask formally: will it be a condition of appointment that the adjudicator should not operate in the area in which he or she lives, or in an area in which he or she is familiar with the locality or with the key players in the education service such as schools, teachers, head teachers or the LEA?
The noble and learned Lord made another important point. My understanding is that when a planning inspector takes evidence and goes into local communities to hear both sides of the case, those meetings are held in public. One can go along, sit in the building and hear what is going on. We have heard during our debates today that the routine meetings of the
organisation committee will be held in public. Will the deliberations of the adjudicator also be heard in public? For example, it is my understanding that an adjudicator will normally carry out his or her duties on paper. That is stated in the background information that we have received on this measure. However, it is also possible for an adjudicator to call for evidence and to see the protagonists and antagonists in a case. It would be helpful to hear from the noble Baroness whether that process will also take place in public.
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