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Baroness Sharp of Guildford moved Amendment No. 16:

"( ) The policy to be set out under sub-paragraph (1) shall not discriminate financially against parents of any child who attends his nearest religious denominational, Welsh language, specialist or other school as defined under the admission policy in force within the local education authority."

The noble Baroness said: I shall speak also to Amendment No. 20. This also concerns charging and the amendment also relates to charging policy. It concerns of discrimination and, above all, is intended to ensure that where a child or its parents choose to attend a particular type of school—whether a denominational, non-denominational, specialist or Welsh-language school—that is not its nearest school, they should not have to pay just because they have exercised the right to choice.

The issue has arisen several times and was considered at length by the Select Committee when the Bill was in draft form. Partly in response to the criticisms of the Select Committee and the European Committee on Human Rights, the prospectus before us contains useful words on the issue. Paragraph 36 states:

of the European Convention on Human Rights—

That is clear about expressing a preference concerning denomination, philosophy or language. However, as we know, the choice agenda has been extended considerably. Both the Government and the Conservative Party are placing a great deal of emphasis on the rights of parents to choose schools for their children. The choice agenda applies especially to secondary schools and hospitals. It is argued that nothing improves performance better than a dose of competition. Therefore, not only are the Government encouraging a variety of different kinds of secondary school to develop with different specialities—voluntary-aided, academies, city technology colleges, denominational and non-denominational—as set out in the five-year strategy, they are also positively encouraging parents to shop around and promising that popular schools will be allowed to expand and unpopular schools to wither on the vine.

So choice is now a key dynamic of the system. Paragraph 4 of the new schedule incorporated in the Bill states in all innocence that a school travel scheme
 
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will set out the charging policy and that any protected child shall not be charged. Paragraph 7 helpfully tells us that a protected child is one where Section 512ZB(4) of the Education Act 1996 applies. The Explanatory Notes are extremely helpful here, because they tell us that that means children who are eligible for free school lunches and free school milk. In other words, charges shall not be made to low-income families.

However, extraordinarily, paragraph 13 of the Explanatory Notes states:

That poses an interesting issue and explains Amendment No. 20, because we must ask, "What is a suitable school?" Who says what is a suitable school? If we take the choice agenda at face value, surely a suitable school must be any school that the parents choose for their children.

If a suitable school is any school that the parents choose under the choice agenda, does that mean that a low-income parent has a right to send their child to any school that they choose without any charge being made, or does only choice apply?

7.15 p.m.

That is the issue at the root of the amendment. Does choice apply only to the middle classes who can afford to take their children further afield? Is choice restricted for low-income families only to denominational and non-denominational schools? It seems that there is some inconsistency between the prospectus and the Explanatory Notes and I should be glad if the Minister could explain the apparent contradiction between the explanations. I would also be glad if the Minister would precisely define a "suitable school". I beg to move.

Lord Triesman: I shall deal with this briefly, because many of the substantive arguments were raised under the group of Amendments Nos. 9, 12, 22 and 24. They are arguments which my noble friend Lord Filkin has already put to the Grand Committee.

There are some additional problems with this amendment. It does not define "financial discrimination", which is a term that is sufficiently vague and uncertain in legal terms to make the provisions of the amendment unenforceable. The amendment would leave scheme authorities uncertain about what their charging policies should be. It would leave the Secretary of State and the National Assembly for Wales uncertain about whether schemes submitted to them could be approved. Whether the amendment is workable or not is a material issue.

I turn to the more specific points made by the noble Baroness, Lady Sharp of Guildford. I shall repeat in summary some of the points that have been made. First, we have accepted that pupils attending denominational schools and Welsh-medium schools are likely to make longer journeys than their peers who attend their neighbourhood community, or in Wales,
 
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English-medium community school. We accept that that is a reality. However, we have also said that LEAs are not under an obligation to provide transport to Welsh-medium schools unless the school is the child's nearest suitable school and outside statutory walking distance. Therefore, that is a discretionary provision.

Parents can exercise preference so that their children can attend denominational schools—and in those cases local education authorities have no obligation to provide transport, unless the school is the child's nearest suitable school and outside statutory walking distance. Some LEAs provide free or subsidised transport in those cases, but by no means all do, and they all take their own decisions about whether they wish to do that or not. That remains the case in relation to the points that have been made regarding the amendment.

The cardinal point in relation to the amendment is that the prospectus makes it clear that where provision is made for pupils travelling to denominational schools, it must also be made for pupils travelling to non-denominational schools to be educated in accordance with their parents' philosophical beliefs. Similar conditions will apply to Welsh and English-medium schools in Wales. That point was drawn out by the Joint Committee on Human Rights in its scrutiny of the Bill.

The effect of this is that, if concessions are made for pupils travelling to denominational schools for religious reasons, concessions must also be made for pupils travelling to community schools because their parents hold strong philosophical beliefs. We are talking about all pupils in all those circumstances having exactly the same rights, irrespective of cost and whether it would achieve the objectives of the Bill. It would make the Bill extremely difficult to operate.

Two-thirds of secondary schools have already achieved specialist status, including many rural schools. We believe that we are well on the way to achieving our aim of all secondary schools reaching specialist school standard by 2008. Therefore, in the circumstances, it is unlikely to be a barrier to choice in many respects. Although they will be more widely distributed in a rural area, it will be perfectly possible for parents to make that choice.

It cannot be right that, because they make that choice—and all will have the opportunity to make that choice—everyone should receive subsidised transport. We cannot accept that it is reasonable to use limited public funds to provide a guarantee in law for LEAs to transport children to a specialist school some distance from home when a place in another, closer school is available, unless parents want to exercise that decision and deal with the financial consequences.

For low-income families, we have made it clear that LEAs should be careful to avoid discrimination that objectively can not be justified. Beyond that, we feel that LEAs are best placed to consult on and put in place arrangements which are fairer and which cater for more pupils than the current inadequate system. That is why the amendment is unnecessary.
 
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I should like to respond to questions that I was asked concerning the meaning of particular words. I was asked the definition of a child's nearest suitable school. It is the nearest maintained school, providing education suitable for the child's age, ability and aptitude and any special educational needs that he might have. That is in the DfES guidance. It reflects Section 7 of the 1996 Act.

I should add that a recent High Court case has established that arrangements to provide transport to an unsuitable school cannot be "suitable arrangements". If there were circumstances in which someone was directed to a school that was unsuitable in terms of the definition that I have just provided, those would not be suitable transport arrangements. So there is an additional protection on which the courts have decided.

I hope that the noble Baroness, Lady Sharp, will feel that I have covered most of the bases of the amendment. I have done so by relying on the fact that the detail of many of my points was set out in response to Amendment No. 9, as many of the key arguments are the same. I hope that she will feel able to withdraw her amendment.


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