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Lord Davies of Oldham: My Lords, I fear that I shall not be tremendously constructive on the amendment. I recognise the strength of feeling with which the noble Baroness presented her case against the word "proprietor". I cannot pretend that it is the most elegant term to have in an education Bill. However, the argument presented in Committee is entirely valid. The word appears in the Education Act 1944 and all Acts since including all the education Acts when appropriate during the 18 years of the last administration. So there are difficulties about producing an alternative to it.

The noble Baroness referred to a small number of schools which may not have governing bodies. The number of schools which do not have governing bodies is 863.

Baroness Blatch: My Lords, perhaps I may correct the noble Lord. I said that there were a very small number of profit-making schools.

Lord Davies of Oldham: My Lords, I misheard the noble Baroness and apologise. I recognise that factor. The noble Baroness contends that to the lay person the concept of "proprietor" seems to involve profit maximisation--a concept entirely foreign to her, I imagine, in educational circumstances.

Let me outline our difficulties. What is the alternative? The noble Baroness kindly suggests "relevant authorities". We consider that unacceptable. There is no precise legal definition of the term "relevant authorities". Within Clause 3 "authorities", "relevant child" and "relevant bodies" are defined terms but there is no definition of "relevant authorities". If the amendment were to be accepted, the term "relevant authorities" would be open to various interpretations and could be held to mean a number of different things.

I do not regard "proprietor" as the most elegant word. The clear advantage of the word is that it has a clear and precise meaning in education law and is not open to such misinterpretation. That is why it appears in the Bill.

I accept that in Committee we indicated that we would think further about the point. The noble Baroness referred to the addition of "or head teacher". We shall consider that further and bring forward a suggestion at Third Reading. I accept that "proprietor" does not have the most attractive ring to it. However, the noble Baroness's solution to the problem is flawed. Regrettably, I am unable to accept her contention. I hope that in the light of the assurance of further work on our part the noble Baroness will feel able to withdraw the amendment.

8.45 p.m.

Baroness Blatch: My Lords, the Minister said with an absolutely straight face, "We have been doing this

20 Feb 2001 : Column 688

since 1944". It is wrong. It has ceased to have meaning. I suspect that in 1944 there were a fairly large number of profit-making schools with a proprietor--but no longer. The world changes. If the government of the day are asked why they have changed a policy the answer is that the world has changed and they have to change and develop with it. To say, "We have done this since Noah was a lad", has no intellectual validity.

It is interesting that the noble Lord took me to task over "relevant authorities". That appears only in Amendments Nos. 37 and 39, and relevance would be the consideration. Amendment No. 35 refers to "governing bodies". Amendment No. 59 refers to "the headteacher or the governing body". Amendments Nos. 97 to 99 refer to "governing body". Amendments Nos. 156 to 158 specifically refer to,

"governing body, trustees, or proprietor"--

where that is appropriate. They are tailored to the part of the Bill. The amendments use the words which are specific to the clauses and the schedule.

To ask, "Who knows what is a relevant authority?" is not an impressive argument. I suspect that neither LEAs nor the Minister would have difficulty on that.

The answer was unimpressive. In Committee the Government promised an amendment but have not brought one forward. They promise one on Report. I wonder how serious they are this time. I commend the amendment.

8.48 p.m.

On Question, Whether the said amendment (No. 35) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 95.

Division No. 4

CONTENTS
Astor, V.
Astor of Hever, L.
Blatch, B.
Burnham, L. [Teller]
Carnegy of Lour, B.
Dean of Harptree, L.
Dixon-Smith, L.
Elliott of Morpeth, L.
Fookes, B.
Glentoran, L.
Hanham, B.
Henley, L. [Teller]
Hooper, B.
Howe, E.
Jenkin of Roding, L.
Kingsland, L.
Knight of Collingtree, B.
Lucas, L.
Luke, L.
Lyell, L.
Noakes, B.
Norton of Louth, L.
Park of Monmouth, B.
Renton, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Shrewsbury, E.
Skelmersdale, L.
Stodart of Leaston, L.
Strathclyde, L.

NOT-CONTENTS
Acton, L.
Addington, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B. [Teller]
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barker, B.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brennan, L.
Brookman, L.
Burlison, L.
Carter, L. [Teller]
Clarke of Hampstead, L.
Cocks of Hartcliffe, L.
Craigavon, V.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Elder, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Geraint, L.
Gibson of Market Rasen, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grenfell, L.
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hooson, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Judd, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nicol, B.
Oakeshott of Seagrove Bay, L.
Parekh, L.
Patel of Blackburn, L.
Plant of Highfield, L.
Ramsay of Cartvale, B.
Razzall, L.
Rea, L.
Richard, L.
Sewel, L.
Sharp of Guildford, B.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Thomas of Gresford, L.
Thomson of Monifieth, L.
Tordoff, L.
Turnberg, L.
Wallace of Saltaire, L.
Walmsley, B.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.

20 Feb 2001 : Column 689

8.58 p.m.

[Amendment No. 36 not moved.]

Clause 3 [Resolution of disputes]:

[Amendment No. 37 not moved.]

Baroness Blatch moved Amendment No. 38:

Page 4, line 17, at end insert--

("( ) "Independent persons" appointed in accordance with in subsection (3) above means persons with no previous connection with the parents and the child, nor of any of the authorities involved in the dispute, and such persons shall have knowledge and experience relevant to the special educational needs of the child.").

The noble Baroness said: My Lords, the amendment would make it explicit that the independent persons comprising the appeals panel should be competent in the matter of the dispute and truly independent. It is a straightforward and clear addition to the clause.

The only comfort that we received in Committee from the noble Lord, Lord Davies of Oldham, on the issue was that such independent people will receive training, financed by the Government, and that a code of practice will give guidance as to who an independent conciliator should be. Elsewhere, the noble Baroness, Lady Blackstone has advised that the code of practice shall not be published until after the Bill becomes law.

20 Feb 2001 : Column 690

From what we gather of the consultation on the code of practice, it will be a long time after the Bill becomes law, so that is not much help to us in getting the definition of independence correct.

I suspect that anybody who wants the body to be truly independent wants people who are already competent and experienced and have knowledge of the special needs in question, not people who still need training to bring them up to scratch. If the Government know how to define what the independent conciliator should be in a code of practice, then they should put that into the body of the Bill. However, if, as I suspect, they have not thought about it, then I still propose that my amendment adequately and properly defines what we mean by independent persons and that remains true whether or not the code of practice is subsequently published.

It is going to be important work. It deals with the most sensitive of queries. It also deals with quite a great deal of distress. Vested interests on all sides, whether it is parents, the LEA or the schools, should not be compromised by someone who is not independent and who could be deemed to be partial to one body or another. It is such an important principle. It would cost absolutely nothing to concede that the principle of independence is established not in the code of practice, which we are not going to see for months after the Bill is passed, but actually on the face of the Bill because it is a first principle, which is very important. I beg to move.

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