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Lord Whitty: My Lords, I was about to explain that the initial application for the use of that discretion had not been determined at the point when Alistair's parents or solicitor informed us that they would apply for leave for judicial review. They informed us in February that they intended to submit further evidence in support of that application. That information was provided on the day before the hearing of the application for judicial review, so not only had the Government not made a decision on that case prior to imminent judicial review but the full information had not been provided to the Government. Having considered that further information, it was clear that there were four specific factors which taken together made out a case for extended support. That was a case where existing discretion under the Act operated and it was premature for people to bring an action on that basis. By these
amendments we intend to extend that discretion to a case where apparently it does not work in relation to children and to make it clear that there is a possibility of transfer through the exercise of discretionary powers.The amendment of the noble Baroness does not seek to extend or clarify the discretionary powers but to change the provisions of the Bill which at the moment do not guarantee--it is not the intention of the Government that they should--that there is a place for every pupil who is granted a place at junior level throughout the whole of secondary education. Almost every child in the land changes school at age 11. We do not believe that there should be a general rule to make provision for those children who benefited from the assisted places scheme for a short time when it was well known that we were about to introduce legislation to phase out the scheme. However, we have discretionary powers in that area as well, which we are prepared to exercise. The noble Baroness's amendment goes deliberately further to guarantee it to every such child. That was never the intention of the legislation. We have exercised discretion sensibly on all of those fronts. Out of the 170-odd applications we have so far received, in 100 cases we have used our discretion positively in favour of providing what the parents and the school require. That indicates that we are prepared to use discretion. However, we are not prepared to change one of the bases of the Act.
Baroness Blatch: My Lords, the Minister has responded to the amendment. I must come back to him. He said that is why the amendment is needed. I still do not understand why the amendment is needed. If the amendment is needed for Alistair, then what situation different from Alistair's requires these amendments? The Minister has not given a proper explanation of that.
The Minister went on to say that not every child who is at a school could have the guarantee. My amendment does not seek that. Where a primary school child receives an assisted place, where the assisted place ends at 11 or 13, depending upon the age range of the school, that is outwith my amendment. I do not include that. I include only those young people who received an assisted place to a school where education terminates at the age of 16, l8 or whatever age it may be, so that it goes all the way through.
The Minister said that the Government were prepared to exercise their discretion. Will he tell me the number of children who have been offered assisted places who are now allowed to go through to the end of secondary education?
Lord McIntosh of Haringey: My Lords, the noble Baroness is making another speech. I would remind her that the Companion to the Standing Orders states:
- "On Report no Lord may speak more than once to an amendment, except the mover of the amendment in reply or the Lord who has obtained leave of the House, which may only be granted to a Lord to explain himself in some material point of his speech".
Baroness Blatch: My Lords, I think my guilt extends to the fact that I did not say, "with the leave of the
House". I was asking for an explanation of what the Minister said. I asked him why the amendment was needed.
Lord McIntosh of Haringey: My Lords, the noble Baroness's guilt, since she used the word, does not extend to not obtaining the leave of the House. The leave of the House may be granted only:
- "to a Lord to explain himself in some material point of his speech".
Baroness Blatch: My Lords, that is precisely what I was doing. I was relating every point I made to the explanation the Minister gave to the amendment. I was seeking clarification from him.
The Chairman of Committees (Lord Boston of Faversham): My Lords, does the noble Baroness seek leave to withdraw her amendment to the amendment?
Baroness Blatch: My Lords, yes.
Amendment No. 197D, as an amendment to Amendment No. 197C, by leave, withdrawn.
On Question, Amendment No. 197C agreed to.
Clause 129 [Dissolution of Funding Agency for Schools]:
Baroness Blackstone moved Amendment No. 198:
On Question, amendment agreed to.
Clause 131 [Publication of inspection reports]:
Baroness Maddock moved Amendment No. 199:
The noble Baroness said: My Lords, the amendment leaves out two subsections in Clause 131 which we believe it is important to remove. The two subsections give protection under privilege to any report published by the chief inspector. The amendment would remove such protection. There is some evidence that a number of Ofsted reports have been attacked by those who have received them as factually inaccurate or in some cases they may have been defamatory of those whom they described.
It is thought by some, especially head teachers, that it is unreasonable that professionals can, in a sense, be libelled in that way by Ofsted without a right to redress through the legal system. It is for that reason that we put forward the amendment. If the possibility of a legal challenge were open to the complainant perhaps people would take more care at least to ensure that the factual statements were accurate. There is evidence that people have been concerned about reports. I hope that the Government will look favourably on the amendment.
It can be difficult if people who have been through this experience have no redress when they think that they have been unreasonably represented, or some fact in the report is not correct.
I shall not labour the point at this hour of the night. Nor do I intend to press the amendment. I hope that the Government recognise that it is a problem. Even if they
Baroness Blackstone: My Lords, I am grateful to the noble Baroness for explaining what underlies the amendment. I hope that I can give her the reassurance that she seeks by explaining why the provision is necessary.
As the noble Baroness will know, the defence of qualified privilege exists to protect those who make statements in the discharge of duties imposed on them. Such a defence has existed at common law for at least 150 years without the need for statutory provisions, as the courts have recognised that those who owe a duty to the public to speak out should be able to do so frankly and fully, without fear of actions for defamation.
The rule applies only to such statements when they are made honestly and without malice. In this context, a person making a statement acts with malice when he is not using the occasion on which he made the statement honestly and for the purpose for which the law gives protection, but is actuated by some other motive. So a person who uses the opportunity afforded by a statutory duty to make a report for the purposes of launching a personal attack on another may well be held by the courts to have acted with malice and to have forfeited the defence of qualified privilege.
As Ofsted will be acting in pursuance of a statutory power when it publishes its reports, the defence of qualified privilege will attach to the great majority of those reports. However, there is one exception. The new Section 42A inserted into the School Inspections Act 1996 by Clause 131 expressly allows the publication of these reports "by electronic means"--in other words, on the Internet. It is right that such publication should be allowed in the interests of the widest availability of the reports. But, for technical legal reasons which I hope I need not go into now, such publication may not be covered at common law by the defence of qualified privilege. All that subsection (3) does is to ensure that this does not happen, and that Ofsted is in exactly the same position if it publishes on the Internet as it would be if it published in print: no more and no less than that.
I hope that, with that reassurance, the noble Baroness will feel able to withdraw the amendment.
Baroness Maddock: My Lords, I thank the Minister for that reply. I am not certain that some of the people concerned about these issues will feel totally reassured. Inaccurate information in reports has created difficult situations. It has been reported to us that some people believe that there has been financial loss in schools. I do not have specific examples.
Perhaps the Minister will look more closely at the issue. I understand why the matter is dealt with in this way. However, there have been problems. Although the Minister has described one way in which we can overcome them, there is a problem if there are factual inaccuracies in reports and people do not have the right of redress.
However, in the spirit of the answer, and considering the lateness of the hour, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 135 [Orders and regulations]:
Page 99, line 32, after ("Agency") insert ("to which subsection (5) applies").
Page 100, leave out lines 23 to 28.
10.45 p.m.
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