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Baroness Morris of Bolton moved Amendment No. 78:

"( ) The first publication of the regulations and guidance given under sub-paragraphs (4) and (6) must be approved by Parliament."

The noble Baroness said: My Lords, in moving Amendment No. 78, I shall speak also to Amendment No. 79. Both amendments were moved in Committee
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and we return to them today because we believe they raise issues serious enough to merit another airing on Report.

Both amendments are concerned with increased openness, transparency and public scrutiny. We believe this is an important and significant undertaking. Under this part of the Bill, the Secretary of State is free and able to give school organisation committees guidance to inform their acceptance or rejection of proposals put forward as a result of a competition. The guidance that is to be given to these bodies will affect the entire shape of school provision in England.

It is essential, therefore, that Parliament is given the opportunity to subject to full and proper scrutiny any regulation made under this critical part of Schedule 10. That is the intention of Amendment No. 78. If we are going to tell school organisation committees how to operate, it is extremely important that Parliament is given a chance to scrutinise the regulations being placed on them.

The Minister commented in Committee that parliamentary agreement to guidance of this kind has never previously been considered necessary. That may be so. However, when such guidance involves a distinct shift in policy, affecting what happens to the structure of our schools, we on these Benches believe it is imperative that Parliament has a proper opportunity to scrutinise such guidance.

In Amendment No. 79, we are seeking to ensure that criteria are set out to determine when cases should be sent to the adjudicator. Despite the assurances of the Minister in Committee, it is still unclear in what circumstances the result of a competition should be referred to the adjudicator. It is essential that the regulations are workable and proportionate. We would not want referrals to the adjudicator to exacerbate local community uncertainty about proposed decisions. The role of the adjudicator, and the criteria on which he will operate, require more detailed consideration.

I hope the Minister is able to provide us with a fuller and more detailed answer to these questions today. I beg to move.

Lord Filkin: My Lords, I shall try to do the impossible of being fuller and clearer, and succinct at the same time. These are not necessarily simple issues.

I think there is a broad agreement that we do not wish to return to the old days when proposals were decided either by the Secretary of State or simply by the local authority itself. We have set up a system of local decision-making, designed to enable a range of stakeholders to consider proposals affecting the organisation of schools. The Bill gives the power to decide all proposals for new secondary schools to local decision-makers, which we believe is right.

Turning to Amendment No. 78, I shall explain the purpose of the regulation-making power contained in sub-paragraph (4) of paragraph 4 of this schedule. It is intended to enable the Secretary of State to make regulations modifying the application of paragraphs 4(1) and 4(2) where proposals for a new school are related to other proposals. These might consist of proposals
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published under Sections 28, 29 or 31 of the 1998 Act, or proposals by the Learning and Skills Council under Section 113A of the Learning and Skills Act 2000.

The regulation-making power contained in sub-paragraph (4) of paragraph 4 of Schedule 10 is comparable to that existing power in the schedule. Regulations made under sub-paragraph (4) might provide, for example, that the school organisation committee should not decide proposals for a new school until a decision had been made on related proposals, for good reason. The SOC would then decide the proposals for the new school in the light of the decision on the related proposals. Alternatively, it may be that proposals for a new school have been submitted to the SOC which are related to proposals before the adjudicator, and it would be appropriate for all of the proposals to be considered together. In this case, regulations might provide for the proposals for the new school to be referred to the adjudicator, with the SOC's observations, rather than be decided by the SOC.

Whether proposals for a new school should be regarded as being related to others will depend on a range of circumstances. It would not be feasible to attempt to make provision in regulations for the different circumstances that might arise. Hence the Bill gives the Secretary of State the power to issue guidance to SOCs on this matter. Guidance is a more appropriate vehicle than regulations as it is more flexible and can be updated easily when required.

Due to the pressure of time, it has not been possible to have the illustrative regulations under sub-paragraph (4) available to the House at this point. I can assure noble Lords, however, that when we consult on regulations made under this part of the Bill, those regulations will include provisions made under sub-paragraph (4). The regulations will, of course, like all regulations, be subject to the negative resolution procedure. It would be utterly inappropriate for guidance, which is largely technical in nature, to be subject to parliamentary approval.

With regard to Amendment No. 79, there is a need for transparency here, so that everyone will know in what circumstances proposals may be referred to the adjudicator. That is why the schedule refers to proposals being referred to the adjudicator in "prescribed cases".

Regulation 14 of the illustrative regulations made available prescribes the cases. They are: if the school organisation committee has voted on the proposals, but two groups could not vote because of a conflict of interest; if they are related to other proposals; or if the committee has failed to reach a decision within two months.

I hope that rather long and highly technical explanation is utterly transparent and that the mind of the noble Baroness, Lady Morris of Bolton, is at rest as a consequence.

Baroness Morris of Bolton: My Lords, I thank the Minister for that very detailed reply. I am not sure about it being succinct and clear, and I shall have to read it in Hansard.
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We support the idea of setting up new schools and wider diversity of supply. However, we believe that more light should be shed on the accountability of how this is going to happen. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80 not moved.]

Clause 66 [Rationalisation of school places in England]:

Baroness Morris of Bolton moved Amendment No. 81:

The noble Baroness said: My Lords, Clause 66 introduces Schedule 11, which contains provisions enabling the Secretary of State to direct local education authorities in England, or the governing bodies of maintained schools, to bring forward proposals for the rationalisation of school places.

I suspect we will never be able to agree on the particular requirement of the Secretary of State to possess such a power, or for the justification of Clause 66 to exist. However, I should like to take this opportunity to remind your Lordships why we on these Benches are opposed to such a power. The Secretary of State has, and should have, no role in this matter. It is a matter for local discretion and local decisions. This is a centralising, anti-local democratic measure that has never been used and, I suspect, never will be. As the noble Baroness, Lady Sharp of Guildford, said in Committee, either we believe in local accountability or we do not.

We on these Benches believe that if this Government were truly serious about their claims of localism and decentralisation, they would be happy to remove this power from the Secretary of State. In Committee, the Minister said that he would like to reflect on what was said. I hope that he has had the opportunity to do so, and has come to the conclusion that such a power is unnecessary, centralising and is capable of stifling parental choice. I beg to move.

Baroness Walmsley: My Lords, your Lordships may have noticed a few wry smiles on these Benches while listening to the words of the noble Baroness, Lady Morris of Bolton. I very much welcome the conversion of the Conservative Benches to the idea of local accountability and criticism of centralisation, given what happened in 18 years of Conservative government. However, we are dealing with this Government at the moment.

What often strikes me when I talk to local councillors is that they feel that there is often a call for more high-quality, intelligent, well motivated people to take part in local government, with the very great burdens of work and responsibility that that entails. Yet they get elected, they have the work to do and they are immediately put into a strait-jacket right, left and centre by this Government. That is what grieves me very much. Clause 66 is another example of that tendency. The noble Baroness, Lady Morris, is
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absolutely right: the Secretary of State should not have this power at all. We very much support her amendment.

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