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Lord Tope: I return to the amendments spoken to by the right reverend Prelate the Bishop of Blackburn. I have considerable sympathy as regards the position in which he and his colleagues find themselves. I congratulate them on the ingenuity with which they have tackled a situation which is fundamentally flawed. If I recall correctly, the right reverend Prelate commented that the Bill appeared not to recognise--or appeared not to be up-to-date with--what is happening as regards the reforms to school government. I speak more usually in this Chamber on education matters but I spend most of my life outside it working in local government. It has long been clear to me that Ministers and officials in the DETR and the DfEE have little knowledge, or certainly little understanding, of what each other is doing. The dilemma we are discussing illustrates that better than any other.

It is not much more than a year ago that we debated what is now the School Standards and Framework Act, Section 9 of which requires that representatives of parent governors be appointed to education committees. At that time the DETR took measures--which we now have before us--which effectively get rid of education committees. Today we are discussing how to deal with the consequences of that. I recall the predecessor of the right reverend Prelate--as the latter said--raising the issue as long ago as 1998. It was obvious that the problem would arise. This matter exposes a fundamental flaw in the Government's determination to make a total division between executive and scrutiny responsibilities.

Church representatives on education committees, teacher representatives on education committees, and now parent governor representatives on education committees, wish to sit on the body which is taking the executive decisions. I spent many happy hours working on the then school standards Bill and I realised that it was the Government's intention that parent governors should sit on the decision-making committees. However, that is not possible under the executive/scrutiny split. Therefore, the Church and others are now trying to find what are much less satisfactory ways of dealing with that inherent and fundamental difficulty.

As I said, I congratulate the right reverend Prelate and his colleagues on finding a means to address the difficulty. I am totally sympathetic to the intentions of that amendment. I have a slight concern that subsection (2) of the proposed new clause refers to there being an overview and scrutiny committee responsible,

"solely in respect of the authority's functions as a local education authority".

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I understand that. That should certainly be its principal purpose. The intention is to replicate as far as possible the previous role of an education committee, except as regards executive decision-making powers. Such an overview and scrutiny committee could very well have--and, in my view, should have--responsibility for matters connected with learning for life which are not strictly those of a local education authority. Obvious examples are libraries and heritage. They are not necessarily strictly matters for a local education authority as such, but they may quite often be appropriate within that committee.

That, in a sense, is a detail. The principle is right. If the Government believe--as they were telling us during the School Standards and Framework Bill--that the Churches should continue with the role that for many years they have had on education committees and that parent governor representatives should now have a similar role on decision-making bodies, that is what should be. In recognising what is, rather than what should be, the right reverend Prelate, in effect, seeks to give them almost a decision-making power after the event. That is much less satisfactory; but if that is the way we have to deal with it, so be it.

It is regrettable because it places such people in an essentially negative role rather than a positive one. In my experience, Church representatives on education committees overwhelmingly have taken a positive and constructive role. In effect, by this amendment we are being forced to give them a negative role of either trying to stop or to at least delay something happening. That could make a fundamental difference to the relationship between the education authority and the Churches. It is an irresolvable difficulty if the Government are determined--as they are--to go ahead with a total split between executive and scrutiny.

So those are our concerns. As I said, I have great sympathy with the position in which both the Churches and parent governors now find themselves. The amendment is one way of trying to deal with that problem--a problem which, in my view, we should not have.

Lord Campbell of Alloway: Very briefly, I express my appreciation to the noble Lord, Lord Tope--who has vast experience of local government, whereas I have none--for the reasons he gave and for the difficulty he expressed about the division of functions. I wholeheartedly endorse, again, his support for the amendments of the right reverend Prelate.

Baroness Hamwee: Perhaps I may add a few words on the question of support for overview and scrutiny committees, speaking in particular to Amendment No. 146, which stands in the name of the noble Lord, Lord Dixon-Smith. The noble Lord is a little unambitious in seeking to provide that each overview and scrutiny committee shall have "an officer". I would go further than that in terms of numbers, but I support him on the point of principle.

Because the point has been made to me, I know that I am not alone in my concern about the conflict of interests that officers may suffer. I will speak to the

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difficult position in which officers may find themselves and the need to involve them fully in the process when we come to later amendments, but there is an obvious problem in an individual advising both the executive and the committee and scrutinising the decisions of the executive.

The question has been posed to me--I cannot give an answer to it; I hope the Minister will be able to do so--as to who is to decide at a scrutiny and overview committee which officer will answer the questions. Are the members or the officers to decide that issue? There may be a different answer if we are talking about senior or junior officers. A point has been made to me that deciding which officers at which level of seniority should answer could lead the discussion to take a different route. It has also been put to me that the load, particularly on senior officers, is changing dramatically as a result of this new arrangement. This observation comes from some experience of an authority where a similar provision for a separate scrutiny arrangement is being used.

At a traditional committee meeting, very often a junior officer will speak on a relatively minor matter. At a scrutiny committee it may be expected that a senior officer will cover an awful lot of ground on matters within a single department. I am not suggesting that senior officers should shrug off responsibility; and, in saying that junior officers often deal with minor matters, I am not suggesting that they have done so in the past under the traditional arrangements. But there are practical difficulties which are almost so great as to outweigh claims about transparency. The load on the officers involved in the process may be very difficult. They are human beings who are now having to serve a number of masters--including their own professionalism--and they may have to spend an awful lot of time, to put it in the vernacular, "mugging up" on detail before turning up at a scrutiny committee; or they may be in a position--I am not alone in your Lordships' House in having been in such a position--of simply having to "busk it" and work it out on the night.

I do not believe that adequate consideration has been given to how in the real world, with real people filling these posts, this split will work.

4.45 p.m.

Lord Whitty: At least in this House we never "busk it" and work it out on the night.

A wide range of issues has been raised in the debate. In one sense the key issue--we do not have a meeting of minds here--is that, in one way or another, noble Lords are seeking to dilute the clear distinction between the executive function and the scrutiny function. We have been very careful not to do that and to clarify that distinction as far as possible.

The noble Baroness, Lady Hanham, tackled this up front in that she proposes that we should delete the clause which excludes executive members from scrutiny committees. That would be a retrograde step in relation to what we seek to do. It could lead to

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some very strange situations. Although the noble Baroness may feel we are drawing too tight a line--as other noble Lords also suggest--we believe that, unless we draw a clear line between the role of the executive and the role of the scrutiny committee, this new system will not work. I therefore have to resist Amendment No. 142, which stands in the name of the noble Baroness. That will also affect some of my answers to other questions.

Turning to the amendment moved by the noble Lord, Lord Dixon-Smith, I believe that his concerns have been addressed by other government amendments. It is clear in the Bill that the role of the overview and scrutiny committee is not only to scrutinise decisions post factum, after they have been made, but to contribute to the making of those decisions and to provide an ongoing scrutiny of the executive on future policy and development. The face of the Bill should make that clear; the guidance should make that clear; and we have tabled further amendments to make that clear today, particularly Amendment No. 137. That amendment states that the committee is to,

"make reports or recommendations ... with respect to the discharge of any functions which are the responsibility of the executive".

It is quite clear that that refers not only to a review of decisions but to recommendations on how a function should be discharged in the future and how it is being discharged currently.

I also do not support Amendment No. 140A, which is an amendment to my Amendment No. 140. As I made clear when speaking to that amendment, it would be inappropriate to allow overview and scrutiny committees to discharge other functions. The functions of planning and licensing, which are not covered by the executive function, need to be carried out by bodies which have an executive and decision-taking role. The overview and scrutiny committees are intended to hold the executive to account for what it has done and what it plans to do. The purpose of Amendment No. 140 is to ensure that separation. I do not believe that it should be blurred by giving the overview and scrutiny committees some executive powers, which is what the proposal implies.

I hope that I understood the first intervention of the noble Lord, Lord Campbell of Alloway, on what is covered by the scrutiny of executive functions. However, I was not sure whether he was referring to Clause 2(1)(b), relating to the best value provisions, which are clearly an executive function and therefore overseen by the overview and scrutiny committees, or to Clause 21(1)(b) relating to the functions which the executive may undertake but is not mandatorily required to undertake.

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