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Page 162, line 6, leave out ("and either") and insert (", and").

The noble Lord said: In moving Amendment No. 169, I shall speak also to Amendment No. 170. These are

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purely grammatical quibbling. Quite clearly, a comma is required after "teacher", otherwise the vacancy is "in and either" the post. A comma is required. I would prefer the word "either" to be removed because I find the either/or construction in that particular collection of commas and sentences to be inelegant and it looks better without. I am certain about the commas, but the word "either" may give rise to a bit of an argument. I beg to move.

Lord McIntosh of Haringey: I have consulted Fowler and Sir Ernest Gowers and neither of them gives me any guidance. I must point out that legislation is not a literary form and where, in a literary form, we probably would include a comma, in legislation we do not. I am advised that the professional draftsmen have it right and that the noble Lord's amendment would make no practical difference. I ask him to withdraw it.

Lord Lucas: I retire defeated.

Amendment, by leave, withdrawn.

[Amendment No. 170 not moved.]

Lord Lucas moved Amendment No. 171:

Page 162, line 36, leave out ("England and Wales") and insert ("the United Kingdom").

The noble Lord said: I do not see why we should deprive our schools of the many wonderful teachers from Scotland, many of whom I remember with pleasure. It seems to me an unnecessary bit of provincialism to leave out Scotland, in particular at a time when what we can do to keep the Union together seems to be worth doing. I beg to move.

Lord McIntosh of Haringey: I shall not respond to the noble Lord's unionist point; we can deal with that when we come to the Scotland Bill. Amendment No. 171 could place an additional burden and additional financial cost on the governing bodies of voluntary controlled and community special schools. The purpose of the provision requiring them to advertise their senior posts throughout England and Wales is to ensure that the vacancies come to the attention of the best possible candidates both within and beyond the local area of any school.

The noble Lord will know as well as I that many of the places where one might advertise senior vacancies--notably, without giving undue prominence to the publications of Mr. Rupert Murdoch, The Times Educational Supplement and The Times Higher Educational Supplement--are circulated throughout the United Kingdom. Therefore, it is likely that what he proposes would be the case. To put it on the face of the statute underestimates the ability of those in Scotland or in Northern Ireland who wish to apply for jobs in England and Wales to use their initiative to do so. If they were not willing to use that initiative they might not be the best people for the job. Let us keep the matter as simple as we can. I ask the noble Lord to withdraw the amendment.

Baroness Blatch: In the light of that answer, why should we not put an obligation on schools simply to

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publicise the post in appropriate documents? Why should Wales have any superiority over Northern Ireland or Scotland? It seems to me that, in some subjects which are short of teachers, schools will want to advertise more widely.

The Minister will no doubt say that schools can advertise where they like, if they wish to do so. But why put a legal obligation in the document? Such examples appear throughout the document. Indeed, there is great prescription in areas that really do not matter, but no prescription in those that do. It seems to me that the obligation on the school should be to advertise the post: end of story.

Lord McIntosh of Haringey: We are concerned to ensure that the post should not simply be advertised locally. I agree that it specifies England and Wales, and perhaps that is an historical accident. Indeed, perhaps it tends to be thought of as a single phrase like, for example, fish and chips--although I probably should not say that. I shall consider the remarks made by the noble Baroness but, in the meantime, I urge the noble Lord to withdraw his amendment.

Lord Lucas: My noble friend is probably more sensible in this respect than I am. It is indeed an old phrase and I understand that it has an historical background. However, if we are going to specify something, I believe that "The United Kingdom" is the right expression and is as it should be for now. The Welsh will end up with a different curriculum and a different school system pretty rapidly under this Bill and under the Welsh Bill when they are enacted. There is no reason to link England and Wales together and exclude Scotland and Northern Ireland. It should either be a general requirement to publicise, or the document should specify the United Kingdom of which, thank goodness, we are still part. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 172 and 173 not moved.]

Lord Lucas moved Amendment No. 174:

Page 167, line 8, after ("capability") insert (", or the failure to give education efficiently and suitably,").

The noble Lord said: This amendment explores a particular phrase used in paragraph 22 of Schedule 16 to the Bill which is used to describe the rules for dealing with staff who are not up to the job, if I may employ ordinary English. The phrase chosen in that particular part of the Bill is,

    "lack of capability on the part of members of the staff".

It may be lack of capability on some occasions but, generally speaking, what we are faced with in such circumstances is lack of performance. The teacher may be capable of doing his job but he is not doing it. A good school with a good system for looking after teachers will endeavour to train and encourage them. However, at the end of the day, the problem is lack of performance and not lack of capability.

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Elsewhere in the Bill in the section which deals with the employment of teachers of religion in religious schools, the phrase is used that I have included in Amendment No. 174; namely,

    "the failure to give education efficiently and suitably".

The two together seem to me to give the right answer. I hope that the Minister will feel able to accept my amendment. I beg to move.

Lord McIntosh of Haringey: I, too, had teachers like that. The amendment is unnecessary. The provision in the Bill requires the governing body to establish disciplinary rules and procedures including rules and procedures for dealing with lack of capability of staff. Normal disciplinary rules and procedures would cover such matters as the conduct of someone who does not provide efficient or suitable education, to use the perfectly legitimate phraseology of the noble Lord, but whose capability is not in question.

One can quite see that those who have, for example, been good teachers may have become slack and not actually do the job. It is important to remember that disciplinary rules and procedures should be able to deal with problems of both conduct and capability. The requirement for disciplinary rules and procedures already provides adequately for school staff whose performance is not satisfactory. Therefore, as I said, the amendment is unnecessary.

Lord Lucas: I am duly comforted and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 175:

Page 168, line 1, at end insert--
("( ) In determining whether to make such a suspension, the governing body shall have regard to any guidance given from time to time by the Secretary of State.").

The noble Lord said: This amendment addresses the problem which, again, I can remember not quite coming across as a governor. When one becomes involved in the question of suspending a head teacher, most governing bodies--thank goodness--are entering into complete terra incognita; indeed, sometimes one has never been through such things before.

These days, if one is anywhere near a national newspaper, one is in danger of becoming featured in television and radio reports in a very big way and entering into extremely deep water. At that time I was aware of no guidance from the DfEE as to how one should conduct oneself in those circumstances. I am not aware that any exists now, although that may be due to my ignorance. However, it would be an enormous help to have some. I beg to move.

Lord McIntosh of Haringey: I must confess that in many years of being a school governor I never had the misfortune to need to suspend a teacher. I bow to the noble Lord's superior experience on that. His amendment would require governing bodies to have regard to guidance provided by the Secretary of State before suspending a member of staff. It would

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encourage a prescriptive approach to this function which in practice might not always be wise or helpful. As he said, there are many circumstances in which it may be necessary to suspend an employee. The kind of guidance for which he asks could involve an exhaustive list of circumstances in which suspension would be appropriate, or indeed circumstances in which it would not be appropriate.

In practice I believe one would seek advice locally from the local education authority, the social services department or even the police, if that were necessary. As regards the protection of children, the Secretary of State already provides guidance in the context both of teachers' misconduct and the medical fitness of teachers. That guidance sets out general advice to schools but it cannot take the place of local professional advice on the circumstances of any particular case. Generally, suspension of staff is an employer function. It would be neither necessary nor appropriate for the Secretary of State to provide general guidance on the exercise of that function.

The ACAS code of practice on disciplinary procedures in employment which is available to all employers recommends that in serious cases consideration should be given to suspension with pay for a brief period while the matter is being investigated. The problem with the guidance the noble Lord asks for is that it would be either too general to be useful, or it would be so detailed that it would run the risk of covering far too many, but perhaps not quite enough, cases. I hope that in the light of that response the noble Lord will withdraw the amendment.

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