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Education and Inspections Bill

My Lords, at Third Reading the House must exercise legislative discipline and I propose to apply it to the amendment. It is fundamentally flawed. The amendment’s purpose is to give local authorities the power to impose quotas and to give the Secretary of State the reserve power to ensure that exclusive schools do not come into existence. In neither case is there an appeal. These are strong powers to give to local authorities and to the Secretary of State. Our legislative discipline requires us to consider in what way that power is expressed. What circumstances circumscribe its exercise? I invite your Lordships to note that in subsection (2) the power for local authorities is a power whereby they may, ““if they so desire””, impose a quota. That is not a clear expression of the extent of irrational exercise of a power. There is no cross reference anywhere to the circumstances to be taken into account if it is to be exercised. It is doomed to failure. It will never survive a judicial review application. It is that discipline that I am inviting the House to note on this occasion. In addition, there are no circumstances to be applied to its exercise. Clause 33(6), as the Minister pointed out, refers to community cohesion, but for foundation schools. Amendment No. 7 refers to governing authorities and Amendment No. 19 to the Ofsted inspectorate. Not in Clause 1, Clause 2 or anywhere else do we find a local authority being required to take into consideration certain circumstances before deciding what it desires. That is unacceptable. I was surprised when I read the amendment, and I may prove to be wrong, as may the librarians, but tonight they inquired on my behalf. In 58 years of parliamentary experience, only two Acts and nine sets of regulations have used the phrase, ““if they so desire”” and then only to give people a choice to make a representation, to participate or not; never to lay the foundation for the exercise of national or local power. If the amendment in this form is the result of inadvertence, so be it. If it is the alternative, so be it. In either event it is simply not acceptable. Would any one of your Lordships accept a power by national or local authorities in any other context simply dictated by the phrase, ““if they so desire””? Of course not. The amendment fails, I regret to say, despite the wit and style with which it was introduced, on basic legislative principle. This is not a phrase that accommodates our democratic approach. Secondly, if you propose to change decades of educational practice ingrained in our society, you need clarity. Was it not in the United States, on the only occasion that I can think of, with quotas in education during the civil rights era, that the passage of white pupils to black schools and vice versa led to division and outrage—educational and social consequences that no one had ever envisaged? Those who propose a system in which that might be required need to explain to us how it will work and how those problems will be avoided. The amendment does not do that. Neither in its content nor in its intent does it meet the democratic and legislative principles of the House.