House of Lords
Elections: Registration
(13 years ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government’s approach reflects the fact that it is not an offence not to be registered under the current system. This will not change under the new system. The offence of not providing information to an electoral registration officer—for example, when making a household enquiry—will be retained. It will not be extended to require an individual to apply to be registered.
Lord Bach
My Lords, I thank the Minister for his Answer, as far as it goes. He will know that at least 3 million of our fellow citizens, and probably more, already are not registered to vote at all. The independent Electoral Commission is of the view that if registering to vote becomes a voluntary activity, as the White Paper proposes, the result could be that up to 10 million people will fall off the electoral register, and that rates could fall in some areas from 90 per cent down to 65 per cent. Up to 35 per cent of the adult population could be disenfranchised. Is such a consequence acceptable in a mature democracy? Does the Minister agree that if such an event were to happen, no longer could we claim to the world, as we can today, that in Britain we live in a democratic country?
Lord McNally
My Lords, of course it is not acceptable; but neither is it acceptable for a mature political party to go round shroud-waving on a conclusion which involved joint deliberation by the parties that the old system had become increasingly distrusted and that voluntary registration—which would eliminate, or do a lot to eliminate, fraud, and create greater public confidence in the system—should be the way forward. The way forward proposed in the White Paper gives enough guarantees and assurances to show that the kind of language that the noble Lord has just used is, quite frankly, scare tactics which are not worthy of him or his party.
Baroness Gardner of Parkes
My Lords, coming from a country where voting is compulsory, I can understand why it should be compulsory to be on the register. However, as voting is voluntary in this country, what is the difference between not wishing to vote and not wishing to register? Can the Minister please clarify?
Lord McNally
Unlike in Australia, not wishing to vote remains an inalienable right of the British people. Registering is a civic duty and we hope that it will increasingly be seen as such. I certainly hope that over the next few years all the political parties will embrace the idea of an individual register and use their influence to ensure that people exercise their right. Of course, once people are on the register they will retain their right not to vote.
Lord Campbell-Savours
My Lords, on the question of shroud-waving, will the noble Lord explain to us why, when this stupid system was introduced in Northern Ireland, the registration of voters totally collapsed? Why did that happen?
Lord McNally
Perhaps someone from Northern Ireland will intervene, but, again, the language is not borne out by the facts. It did not totally collapse. In this gradual process that we are bringing forward, we are learning from the examples and lessons of the Northern Ireland experience, as well as looking at some of the practices that are going on there now. Northern Ireland votes are a standard joke but we are now learning lessons about voluntary registration and its success in Northern Ireland.
Lord Marks of Henley-on-Thames
My Lords, the existing system, whereby householders can in theory be prosecuted for failing to return their registration forms, has not worked, largely for the simple reason that no one can tell who the responsible householder is in households with more than person. Therefore, does not individual registration offer a good opportunity at least to consider a meaningful compulsory system, and is that not important, given that the electoral register determines not just the right to vote but also the call-up for jury service?
Lord McNally
Those are very valid points. To put the Question of the noble Lord, Lord Bach, into perspective, I again emphasise that the annual canvass will continue to support the maintenance of the electoral register. Significant work, including public awareness campaigns by the Electoral Commission, will be funded in 2014-15 to manage the transition to individual electoral registration. In both those years, door-to-door canvassing will be used by electoral registration officers as part of a wide suite of powers to encourage people to register to vote. This is a step forward against electoral fraud. Instead of making emotional interventions, it would be good if the Labour Party would endorse it and get on with encouraging people to register.
Lord Wills
My Lords, all the evidence that I saw when I was the Minister responsible for these matters in the previous Government suggests that the introduction of individual registration, no matter how desirable for other reasons, is going to carry with it severe risks that millions of otherwise eligible voters will fall off the register. That is why, when the previous Government introduced this measure, they locked it into the achievement of a comprehensive and accurate register. It is also why the Conservative shadow Minister at the time said on the Floor of the other place that,
“we agree with the Government that the accuracy, comprehensiveness and integrity of the register … is paramount ... I do not intend to vote against these Government amendments because … I believe that it is right to take this matter forward carefully and step by step”.—[Official Report, Commons, 13/07/09; col. 108.]
The Liberal Democrats also supported this approach. Can the Minister please tell your Lordships what new evidence he has seen that has persuaded him that the careful approach adopted by the previous Government and supported by both main parties in opposition is now wrong?
Lord McNally
We are going forward by learning from the lessons and experience of Northern Ireland.
Lord McNally
I am answering the question. From some of the questions, you would not believe that we will be having a two-year period in which we will be taking a belt-and-braces approach with the present system running in parallel and with every opportunity for democratic organisations and others to persuade people voluntarily to go on the electoral register and exercise their civic duty. The answer is that we have decided on a belt-and-braces approach, which will allow a smooth transition to a new scheme. It is a perfectly sensible approach, which draws on some of the experiences of the previous Government. I think that the Labour Party is being disgraceful on this. It should get on with recruiting members and persuading people to register to vote instead of using these scare tactics, which, quite frankly, are not worthy of it.
Saudi Arabia: Driving Licences
(13 years ago)
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Baroness Smith of Basildon
To ask Her Majesty’s Government what consideration they have given to the recognition of Saudi Arabian driving licences in the United Kingdom.
Earl Attlee
My Lords, no consideration has been given to the exchange of Saudi Arabian driving licences in the UK. Consideration would be given only after an approach has come from the Government of Saudi Arabia to recognise their driving licences. To date, no such approach has been made.
Baroness Smith of Basildon
My Lords, I am slightly confused by the Minister’s Answer. My understanding is that Saudi Arabian driving licences are valid in this country for up to a year for Saudi Arabian citizens. As he will be aware, Saudi Arabia is the only country in the world to make it a criminal offence for women to drive. Recently, a sentence of 10 lashes was handed out to a woman driver, although that was later commuted. Will the Minister consider the current position? Will he look at whether the UK recognition of Saudi Arabian driving licences for a year should be withheld until driving licences are available to all citizens and not just to male citizens? Can he discuss with his Foreign Office colleagues what action can be taken by the British Government to raise concerns about the Saudi Arabian Government’s position on this appalling discrimination?
Earl Attlee
My Lords, on the substantive question about recognition or non-recognition of Saudi driving licences, the noble Baroness will recognise that we are under a treaty obligation in terms of the international circulation order. However, we welcome King Abdullah’s overturning of the recent sentence of lashing for a woman convicted of driving. It is well known that this Government, like their predecessor, have particular concern about some aspects of human rights protection in Saudi Arabia, most notably women’s rights. The UK has consistently called for women in Saudi Arabia to be able to participate fully in society. That means removing legal and cultural barriers, like the guardianship system and the ban on women driving.
Baroness Falkner of Margravine
My Lords, does my noble friend accept that the ban on women driving in Saudi Arabia, of course, has nothing to do with theology or Islam and has everything to do with the desire of men in Saudi Arabia to remain guardians of women—in other words, discrimination? Will he tell the House how the United Kingdom voted when Saudi Arabia was elected on to the executive board of UN Women, the agency for gender equality and empowerment for women? If he does not have the answer with him, perhaps he might write to me saying how the UK voted?
Earl Attlee
My Lords, the noble Baroness has asked me quite a detailed question, and I am afraid that I shall have to write to her.
Lord Davies of Oldham
My Lords, as the Arab spring is showing some buds even in Saudi Arabia, with regard to the participation of women on the Consultative Council, could the Government at least indicate to the Saudi Government that, from our experience, women are safer drivers than men?
Earl Attlee
My Lords, I am sure that when we talk to the Saudi Arabian Government, we make that point.
Lord Berkeley
My Lords, surely the noble Lord could say straight to the Saudi Arabian Government, “We are not going to enter into these negotiations until you allow all women of the right age and with the right experience to be able to drive in Saudi Arabia and we will not accept those licences in this country until that is achieved”.
Earl Attlee
My Lords, I think the best way of achieving our objective—I think we are clear about our objective—is to apply steady, consistent pressure to states like Saudi Arabia. We will not get them to roll over overnight. No doubt the Saudis give us friendly advice about, for instance, underage drinking and other cultural matters.
Public Disorder: Restorative Justice
(13 years ago)
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Baroness Massey of Darwen
To ask Her Majesty’s Government whether they are considering the use of restorative justice in dealing with the riots in August.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, we are committed to delivering more restorative justice. We want to ensure that victims of the riots have a chance to explain the impact on them and that offenders face up to the consequences.
Baroness Massey of Darwen
I thank the Minister for that response. Would he agree that restorative justice schemes have resulted in victim satisfaction and cost-benefit analysis, and that reoffending has been reduced by such schemes? Would he say how many such schemes there are and whether they will be rolled out more extensively?
Lord McNally
Initially there were three such schemes. There have been about 60 enquiries about restorative justice, and we are very keen to roll out the schemes as quickly as possible. In response to the recent riots, there have been elements of restorative justice in both London and Manchester. I assure the noble Baroness that it is an element of the criminal justice system that we are very eager to learn lessons from and to expand.
Baroness Sharples
Would the Minister tell us why the courts in Westminster have closed?
Lord McNally
I am taking a wild guess here. I think it is probably because we have opened a new Westminster court at the other end of town. I am trying to remember the name of the road, but just along from Baker Street—
Lord McNally
Marylebone Road. Thank you. I am about to give the right answer now. I appreciate how convenient it was for Members of both Houses to be in Horseferry Road, but in fact they now have to go to a splendid new court in Marylebone Road.
Baroness Trumpington
Is the Minister aware that the Horseferry Road courts, which I presume are the ones he is talking about—in which I sat as a magistrate for several years, although never, I regret to say, when the noble Lord was present—were new buildings and new courts?
Lord McNally
I think I would prefer Judge Jeffreys rather than the thought of being up before the noble Baroness. Again, I will write with full details, but I suspect that under the previous Administration—
Lord McNally
No. The Marylebone Road building is a very fine building and will be a great credit to the system, but I presume that we will be redeveloping the Horseferry Road site to the benefit of the taxpayer.
Baroness Young of Hornsey
My Lords, will the Minister inform the House about the extent to which restorative justice has been used in sentencing young people under the age of 18 as a result of the riots in August?
Lord McNally
I will have to write to the noble Baroness with the specific details but I know that it has been used much more in recent times, and with good reason. It is interesting that Resolution, the magazine of the restorative justice system, reported an ICM poll after the riots that said 88 per cent of victims thought that restorative justice should be used and 94 per cent said that offenders should be held responsible for the repair and harm caused to victims. Restorative justice, when it is effectively used both as a punishment and as a rehabilitation measure has been shown to be much more effective in securing non-reoffending than sending to secure accommodation. I will write to the noble Baroness with the facts that bear out that assertion.
The Lord Bishop of London
In the light of the events in August and of the substantial reductions in the youth service in most London boroughs and other places, do the Government have any plans to assist those voluntary organisations with a proven track record in engaging with hard-to-reach young people, many of whom were involved in the events of August? I am thinking of organisations such as XLP.
Lord McNally
Within the budget constraints that affect both central and local government, we are looking to the voluntary sector to continue to play a part in this area. Where and when we can make resources available, we will do so. There is no doubt that where the voluntary sector, including churches, plays a positive role in a community, the impact on such issues as vandalism and small-scale crime is very favourable, so we will certainly be keeping that in mind.
Baroness McIntosh of Hudnall
My Lords, in view of the Minister’s answer to the noble Baroness, Lady Young of Hornsey, does he see any tension or contradiction between his declared support for restorative justice and the attitude taken by the courts to many of those who were caught up in the riots?
Lord McNally
Possibly. In the end, it must be the courts, the judges and the magistrates who determine sentencing. It was right that the courts took into account in some of those sentences the fact that the offences occurred in the process of a riot. The riot was a legitimate factor for the courts to take into account in determining sentencing. In the broad sweep of things, I believe, as I indicated to the noble Baroness, that the evidence is that proper restorative justice that has a real impact on the offender is more effective in avoiding repeat offences than sending the offender to a young offender institution. I hope that we can develop a sentencing policy that is based on the facts and what works rather than on knee-jerk reactions.
Baroness Hussein-Ece
My Lords, given the successes of restorative justice, how widely are the principles being used and taught in pupil referral units and, more widely, in schools to enable young people to know that they have to take responsibility for their own actions?
Lord McNally
Increasingly so. This is one of the things that most attract me and others to the idea of restorative justice bringing the offender face to face with the victim. We are being very careful in consulting victims and victims’ organisations about how restorative justice fits into this. There is no doubt that sometimes a face-to-face meeting between the offender and the victim has a beneficial effect on both. On the other hand, you do not want a system that revisits on the victim a trauma from which they have recovered. In that respect, we are, I hope, being sensitive. People genuinely want to see restorative justice that has an element of real punishment and real work in it to win public confidence in the exercise.
Lord Imbert
My Lords, does the Minister agree that victim satisfaction, which is one of the cornerstones of restorative justice, is the most important factor in justice at any level?
Lord McNally
My Lords, I agree entirely. One of the things that we are consulting on, working on and hoping to bring forward a paper on shortly is the greater involvement of victims in the justice process. Since it was the noble Lord, Lord Imbert, who asked the question, I also find that the buy-in by police to restorative justice is another factor that gives me encouragement that it is the right way forward.
Lord West of Spithead
My Lords, I understand that HMIC is looking at the riots to learn lessons for the police about the handling of riots in the future. When will that report be coming out and will it be freely available for people to see?
Lord McNally
I would sincerely hope so. There are, as the noble Lord will know, a number of cross-Government studies as well. I would hope, again, that those are published, because I think it is important that we have a proper, healthy debate, based on the facts, to show us the way forward after the summer disturbances.
St Paul’s Cathedral
(13 years ago)
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Lord Lee of Trafford
To ask Her Majesty’s Government whether they intend to offer St Paul’s Cathedral any assistance in maintaining the right of access and passage to the cathedral.
Lord Lee of Trafford
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as chairman of the Association of Leading Visitor Attractions, of which St Paul’s is a member.
The Minister of State, Home Office (Lord Henley)
My Lords, everybody has a right to peaceful protest, but that right comes with responsibilities, including respecting the rights of others. I understand that the right reverend Prelate the Bishop of London has asked protestors to leave and so enable the cathedral to reopen. The Government believe that the protestors should comply with this request. The police are working closely with the cathedral as they monitor the situation, and the Government are being kept informed of developments.
Lord Lee of Trafford
I am grateful to my noble friend for that reply, but there is a clear difference between a normal protest and a permanent encampment. For some years we have had the national embarrassment, which still continues, of the permanent encampment in Parliament Square. Now we have a situation where one of our major cathedrals, an icon, is closed and the surrounding traders are suffering severely. Is it not time that the Government actually came out on this and took new powers to deal with these permanent encampments? If they are not dealt with at this stage, I fear that they will spread.
Lord Henley
My Lords, the two issues are slightly different because the ownership of the land involved in Parliament Square and at St Paul’s is different: at Parliament Square the land belongs to the local authority whereas at St Paul’s it belongs to the church and the City of London. We have taken measures to deal with the Parliament Square problem, which were covered in the Police Reform and Social Responsibility Act 2011, and I hope that we will be able to deal with that problem shortly. As regards dealing with demonstrations of this sort on private land, I note what my noble friend says about the need to look at changes in the law. Certainly, if problems like this persist, and if we have problems like this that are likely to disrupt the Olympics or whatever, it is certainly something the Government will have to look at in due course.
Lord Anderson of Swansea
My Lords, should not the protestors be told clearly that they have made their point and that the longer they stay the more they will possibly alienate public opinion, losing potential supporters in the process? They would be far better to leave in a dignified manner, having made their point clearly.
Lord Henley
I agree totally with the noble Lord. The right reverend Prelate has made that point; the Government have made that point; others will make that point. I think it is time for them to pack up their tents and go, but we have no power to get them to go while they are on private land.
Lord Higgins
My Lords, does the Minister not agree that what is needed is not action “in due course” but action now?
Lord Henley
My Lords, I note what my noble friend has to say, but this is on private land and therefore it is a matter for the owners of that land to deal with it. We do not have the powers to deal with it at the moment, but as I said in response to the original Question from my noble friend, obviously if we continue to have problems of this sort, this is something we will have to consider.
Lord Richard
My Lords, the noble Lord in an earlier answer referred to Parliament Square, on which he said that action would be taken shortly. We all know what “shortly” means: it can mean either “some time in the future, perhaps, when we get round to it”, or “we are on the verge of taking action now, and it will happen fairly soon”. Is it the first or the second?
Lord Henley
My Lords, I am sure that the noble Lord, when a Minister, has used the word “shortly” before now. We all do use it from time to time. The noble Lord will also be aware that we have given ourselves powers in the Police Reform and Social Responsibility Act 2011. Those powers need to be brought into effect. I cannot confirm precisely when, and that is why I used the word “shortly”, which the noble Lord will be familiar with.
Lord Forsyth of Drumlean
My Lords, I declare an interest as I have an office in Paternoster Square. Is my noble friend aware that the police thermal imaging cameras in the helicopters flying over this camp have revealed that during the night there are very few people in these tents and that they go off home or go off to live in hotels? Is this not making the stage laugh at the audience? Do we not need to recognise this for what it is, which is a disruption and not a legitimate protest, and to take the powers necessary rather than getting involved in arguments about who owns the property? This is a clear disruption of the life of the city and the life of the cathedral, and the Government must act.
Lord Henley
My Lords, I agree with my noble friend and I am very grateful to him for pointing out that the protesters seem to be very much what might be described as part-time protesters. The sad thing is that this is on private land. Therefore, it is not a matter for the Government to intervene. It is a matter for the owners of that land, which, in this case, is the dean and chapter, to take the appropriate action. As I have said, obviously we have to look at the future and I was very grateful for the comments made by my noble friend in his supplementary question in terms of whether we need to change the law to deal with further problems later.
Baroness Symons of Vernham Dean
My Lords, the noble Lord spoke of the right to peaceful protest. Is there not also a right to worship in a church when one wants to do so?
Lord Henley
My Lords, of course there is a right to worship but it is a matter for the church authorities to decide whether they can open that church or not. I do not answer at this Dispatch Box for the church. It was the dean and chapter who decided on grounds of health and safety—whether that was right or not is a matter for them to argue—that they could not continue to open the church. That is not a matter for the Government.
Lord Elton
My Lords, is not an empty tent litter, whether it is on public property or private property, that can be removed without further legislation?
Lord Henley
My noble friend makes an interesting point. Whether an empty tent is litter is a matter that I am not going to argue now. I go back to the principle that this is something on private property and, therefore, is not something on which the Government currently have powers to intervene.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, we have had a very good Question Time and the clock is now at 30 minutes. Perhaps we should go on to the next business.
Privileges and Conduct
The Chairman of Committees
That Baroness Scotland of Asthal be appointed a member of the Select Committee in place of Lord Graham of Edmonton, resigned.
Dog Control Bill [HL]
(13 years ago)
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Lord Grantchester
My Lords, before we pass the noble Lord’s Bill to the other place, I am reminded that the Minister, the noble Lord, Lord Henley, on Report in June stated that he might have some more to say at Third Reading. Seeing the new Minister in his place, perhaps I may ask him if he would like to say a few words more.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, I think the House knows that it is not customary for the House to debate the resolution that the Bill do now pass. Given my noble friend Lord Henley’s commitment to say something at Third Reading, I will briefly update the House.
I hope that I can reassure all noble Lords that I understand their concerns about dog control. However, the Government cannot support this Bill. My noble friend Lord Henley had been working on a comprehensive package of measures to deal with dangerous dogs and irresponsible dog ownership. I continue to carry on his good work, including meetings with key stakeholders, and I hope to announce this package shortly.
Lord Redesdale
My Lords, I thank the Minister for that response. This is not the first time that I have brought this Bill before Parliament. Obviously, I brought it while the Opposition were the Government and I did not get a great deal of satisfaction at that point. I thank the Minister for his reply. Perhaps I may also thank the very large number of people who are incredibly committed to making sure that we have a safer environment, including those people working with the dog-owning community, police officers and, especially, organisations such as the Battersea Dogs & Cats Home which have to deal with this growing problem. I very much hope that, in going to the House of Commons, this Bill will get a fair wind. I beg to move.
Education Bill
(13 years ago)
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16:42 - Division on Amendment 70A - Ayes: 176 / Noes: 235 - Amendment 70A disagreed.
17:52 - Division on Amendment 76 - Ayes: 181 / Noes: 204 - Amendment 76 disagreed.
19:03 - Division on Amendment 78 - Ayes: 141 / Noes: 181 - Amendment 78 disagreed.
Lord Hill of Oareford
“( ) In section 88I (other functions of adjudicator relating to admission arrangements), in subsection (3), omit paragraph (b) (and the “or” preceding it).”
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, after our discussions about admissions on Monday, I move to a number of government amendments which achieve two important things. The first introduces an important new clause that makes it possible for anyone to object to a school’s admission arrangements by referring an objection to the office of the schools adjudicator. His duty to consider all concerns that are raised to him in this way remains. This new clause builds on Clause 62, which extends the adjudicator’s remit to include all academies and free schools so that admissions to all state-funded schools will be covered by the same organisation. Our other amendments relate to the issue we discussed on Monday about national oversight of and accountability for the admissions system. Our Clause 34 would have removed a duty on local authorities to send their annual report on admissions in their area to the adjudicator. This is because in the statutory code we are placing that duty on local authorities to report locally to local people.
However, during Committee I listened with care to noble Lords’ concerns about the adjudicator not getting these reports to help flesh out his and the Secretary of State’s national picture on admissions. Noble Lords were worried that, without these reports, the adjudicator would see admissions only where things have gone wrong or might have gone wrong whereas these reports also set out the areas where things are going right, which is the vast majority. Noble Lords were concerned that this would remove a thread of accountability running from schools through local authorities through the adjudicator to the Secretary of State, which was not our intention. So we are addressing that concern with Amendments 64 to 67. They place a duty on local authorities to send their reports to the adjudicator in addition to being published locally. This will ensure his national oversight and he will continue to be able to take these reports into account when deciding whether to investigate a school’s admission arrangements. I hope that noble Lords will agree that our moves on admissions are aimed at achieving and promoting fair access and that these amendments will help achieve that end. I beg to move.
Baroness Hughes of Stretford
My Lords, I am grateful to the Minister for responding to my letter about these amendments and for the Keeling schedule which helps us to understand the impact of these further amendments. I welcome the moves that he has made and those new measures that he has just described. However, I would welcome clarification on two points before we get to Third Reading. In his letter to me in relation to my query about possibly seeing the draft regulations relating to these measures, the Minister says he believes that the admissions code should be the prime document and that regulations merely reflect the code rather than being a separate source of guidance. But the measures, even as amended in the School Standards and Framework Act 1998, provide for regulations which may make provision,
“as to any conditions which must be satisfied before … an objection can be referred to the adjudicator under subsection (2) or … the adjudicator is required to determine an objection referred to him”.
I understand that to mean that, in addition to the admissions code, which will not go into such matters, any regulations coming forward can stipulate conditions that parents or, as the Minister said, any person or body—including the local authority— must meet before making an objection to a school’s admissions procedure. As we have not seen the draft regulations, we have no idea of the conditions that the Government may be thinking of imposing. They could create additional hurdles for people to overcome before they can avail themselves of the opportunities to object to admission authorities’ policy and practices that the government amendments have created for them. Perhaps the Minister could clarify that my understanding is correct and, if so, what conditions the Government may be thinking of including in regulations. It is important that we have an idea of those before this matter is decided.
Lord Touhig
Subsection (2)(a) of the new clause proposed by Amendment 69 broadens the range of persons who can object to a school’s admission arrangements. That seems to leave the door open to people who have no direct interest in a school’s admissions policy to be able to object. What will the Government do to prevent these vexatious objections?
Lord Alton of Liverpool
My Lords, I support the point that the noble Lord, Lord Touhig, has made. I know that great concern has been expressed outside your Lordships' House that the provision could give rise to vexatious complaints being made by groups who have no interest whatever in the school concerned. I hope that the Minister will be able to reassure us that that will not be the case.
Lord Hill of Oareford
My Lords, it remains our intention to bring the new codes into force from February 2012. While there is no legal requirement for us to publish a further draft of the code, we intend to do so as quickly as possible, with a planned date of 31 October. Alongside those draft codes, we expect to publish draft regulations and to consult on them for four weeks ahead of laying the codes formally before Parliament on 1 December. I would be very happy to share a set of the draft regulations with the noble Baroness so that she can see them in good time.
Baroness Hughes of Stretford
Is it possible to see those draft regulations before Third Reading so that that issue is clarified before the Bill is finally disposed of?
Lord Hill of Oareford
I understand the point. Let me check where we have got to on the draft regulations and come back to the noble Baroness, if I may.
To clarify the point about binding the judgment of the adjudicator and what happens if the admissions authority does not do what the adjudicator says, the judgment of the adjudicator is final and legally binding. It cannot be ignored. The school or local authority must implement that decision without undue delay or find itself in breach of the statutory duty to have admissions arrangements compliant with the code. If they fail to do that, they risk judicial review or direction by the Secretary of State.
So the adjudicator’s ruling is binding. The difference is that instead of the current situation whereby the adjudicator specifies how the admissions authority must change its arrangements to comply with his ruling, his ruling will still be binding and it will be the duty of the admissions authority to comply with his ruling and change their admissions arrangements to make sure that they are compliant.
I take the point raised by the two noble Lords about vexatious complaints. We are proposing to put in place a couple of safeguards. First, the adjudicator would not have to reconsider his decision if someone were putting in repeated allegations and accusations on which he had already decided. Secondly, we are making it clear that there cannot be anonymous allegations of that sort to try to ensure that the system works properly.
Lord Hill of Oareford
Lord Hill of Oareford
“Objections to admission arrangements
(1) Section 88H of SSFA 1998 (reference of objections to adjudicator) is amended as set out in subsections (2) to (6).
(2) In subsection (2)—
(a) in paragraph (a), for “an appropriate person” substitute “a body or person”;(b) after “that” insert “body or”.(3) Omit subsection (3).
(4) In subsection (4) omit “or (3)”.
(5) In subsection (5)—
(a) in paragraph (a)(i) omit “or (3)”;(b) in paragraph (a)(ii) for “(3)” substitute “(2)”;(c) in paragraph (c) omit “or (3)”; (d) in paragraph (d) omit “or (3)”.(6) Omit subsection (6).
(7) In section 88K of SSFA 1998 (sections 88H to 88J: supplementary), for subsection (2)(b) substitute—
“(b) any other person or body.””
“(1) Where a new school is to be established there should be local determination as to the appropriate category of new school, based on a local assessment of need and local consultation, including with parents and the local authority.
(2) The category of the new school shall not be presumed prior to the assessment of need and consultation with parents in subsection (1).
(3) The Secretary of State shall not provide a funding incentive which supports one category of school over another.”
Baroness Hughes of Stretford
My Lords, Clause 36 introduces a new presumption that every new school in the future will be an academy. The clause further restricts the power of local authorities to determine what is the most appropriate type of school when a new school is needed. Under the clause, before publishing proposals for a competition for the establishment of a new school, the local authority must obtain the consent of the Secretary of State.
The clause also enables the Secretary of State or the local authority with the consent of the Secretary of State to halt such a competition at an early first stage before the closing date for proposals to be submitted. The clause means that academy proposals in that process will no longer need to be submitted to local authorities for approval but will instead be referred directly to the Secretary of State for him to decide if he wishes to enter into academy arrangements with the proposer. The clause places a duty on local authorities to seek proposals for the establishment of an academy if a new school is needed, not any other type of school. It specifically denies the local authority the ability to publish any of its own proposals for a new foundation or community school in a Section 7 competition.
The Government's proposals essentially do three things. First, if a new school is needed in an area, they skew the whole process massively so that academies have an immediate head start over other types of school through this presumption, which will be enshrined in law. Secondly, they mean that a local community school is possible only as a last resort when all other options have been exhausted. Thirdly, they limit the role of the local authority and parents to have a say in the type of school, according to local need and the best fit with the local school system. At the very least, this appears to fly in the face of the localism agenda that the Government appear to be promoting elsewhere, but also it seems wrong in principle. Clause 36, with the presumption in favour of academies for every new school, gets to the very heart of the Government’s intentions and presents the most profound change and challenge to our education system.
As we have noted before, the Government’s vision is that eventually every school should be an academy. This clause will apply to primary schools, secondary schools, special schools, every kind of school—all schools as academies with power to determine their own admissions, and no formal links with local authorities or other schools. It is Death by default of local community schools leading potentially to thousands of atomised schools all linked, in theory, to the Secretary of State though in practice the Secretary of State and his officials could not possibly manage effectively so many relationships. Therefore schools will, to all intents and purposes, be free floating. The significance of Clause 36 cannot be overstated.
Amendments 70A and 73A seek simply to create a level playing field. Amendment 70A would mean that where a new school needs to be established, there should be local determination as to the category of school based on an assessment of local need and consultation, including with parents; that the category or type of new school would not be presumed prior to that consultation and assessment; and that the Secretary of State shall not provide any funding incentive which supports one category of school over another. Amendment 73A would consequently remove Schedule 12 to the Bill.
When this was discussed in Grand Committee, the Minister told us that the provisions do not mean that every new school would be an academy, but as the Bill stands any proposal for a new school would go forward only if a satisfactory academy solution could not be found. In that situation, the local authority would then be required by the Secretary of State to run a competition that includes the possibility of different kinds of schools. It is only if the second stage of the process fails that the local authority could bring forward proposals for a community school. The dice are loaded heavily in favour of academies and against local community schools, which can go forward only as a last resort. Our amendments would remove that presumption, restore neutrality between the appropriateness of different kinds of schools for different situations, and allow the decision to be made locally on the basis of what is best for the children and families in that area.
The presumption also seems to restrict parental choice, both in the decision about the type of school needed and in moving, in time, to one type of school only—the academy. The Government profess to be in favour of parental choice. Nick Gibb in the other place said that the intention behind Schedule 12 is,
“to increase parental choice by diversifying provisions and ensuring that parents have a genuine choice of school to which they send their children”.—[Official Report, Commons, Education Bill Committee 29/3/11; col. 790.]
It is difficult to see how these proposals succeed in that objective. By contrast, our amendments would put parents at the centre of decision-making and thereby ensure a wider range of types of school—more diversity in the system—by not presuming there is a one-size-fits-all solution, the academy. This seems to us to be a more mature approach and a fairer approach, opening up all options equally for local people to consider.
I hope that these amendments will be given the support of the House, particularly from those noble Lords across all Benches who, while open to the potential of academies to improve standards—as indeed I am and my colleagues are—do not believe that academies are necessarily the best and the only solution in every situation, and who want to see local involvement in decisions about new schools. I beg to move.
Lord Avebury
My Lords, somewhat incongruously, my proposed new clause, which follows the amendment moved by the noble Baroness, refers to the closure of schools, whereas her speech and the clause that she is addressing refer to the opening of new schools. The proposed new clause removes the presumption in the existing guidance on the closing of schools that there should be no reduction in the proportion of denominational places in the area when consideration is being given to a school closure.
The Department for Education says that the current guidance, which is not on its website because it reflects the current legal position, may not reflect current government policy because it is to be replaced shortly by revised interim guidance. But the department does not intend to revise the section of the present guidance which provides in paragraph 4.32 that:
“The Decision Maker should not normally approve the closure of a school with a religious character where the proposal would result in a reduction in the proportion of denominational places in the area”.
The department says in an e-mail about the guidance that there is no special protection for denominational provision in the guidance inasmuch as it,
“simply requires that due consideration should be made when deciding closure proposals for denominational provision”.
The e-mail continues:
“It does not say that no such school should close, especially if the faith body supports the proposals, and particularly if the school concerned is severely under-subscribed, standards have been consistently low, or where an amalgamation of existing provision is proposed”.
In other words, where normal conditions do not apply, the guidance allows the closure of a school with a religious character, a proposition with which we do not seek to argue. What we are talking about in this proposed new clause is the closure of a school where there are no exceptional conditions. The Department for Education goes on to say that,
“if you are preserving the balance of denominational provision, you are likewise preserving the percentage of non-denominational provision i.e. if you remove a non-denominational school from the system, there is also an option to remove denominational provision and vice-versa if adding provision, as otherwise the balance has increased in favour of denominational provision”.
What this appears to be saying, if I have deciphered it correctly—I must appeal to the Minister to confirm my interpretation—is that within a given area the guidance does not have the effect of monotonically increasing the proportion of religious places in the schools. The closure of a secular school by itself is permissible, but the closure of a religious school is allowed only under the specified unusual conditions.
Let us see how the guidance works out in a particular area, the Freshwater and Totland area of the Isle of Wight. The council decided to reduce the provision of primary school places in the area because the number of pupils in reception had fallen significantly below the available reception places in the area over a whole decade. The closure of one of the three schools in the area was the solution, and in the council’s discussion of which it was to be, the headline argument in the case of the two religious schools was the guidance already quoted. The council said in each case that the guidance was clear, as indeed it was in this case, that the decision-maker would not approve the closure of either the Catholic or the Church of England school because to do so would reduce the proportion of denominational places in the area. The fact that closing the only community school in a 12-mile radius in the west of the Isle of Wight meant that the proportion of non-denominational places in the area was reduced to zero was neither here nor there in terms of the guidance.
It must be acknowledged that in the absence of paragraph 4.32 already quoted there were other reasons why the non-religious school might have drawn the short straw in this area, but if the three schools had been equally popular and of equal standards that paragraph would have been instrumental in reaching the decision. It certainly amounts to special protection for schools with a religious character where there is a need to close one school out of several in an area, other things being equal. This amendment seeks to create a level playing field for all schools when closures are being considered.
Baroness Walmsley
My Lords, I have tabled Amendment 70C in this group, which would remove subsections (3) and (4) of new Section 6A as inserted by Schedule 11. Subsection (3) introduces a requirement for a local authority to seek the Secretary of State’s approval before proceeding with an alternative model of school to an academy. Subsection (4) allows the Secretary of State to terminate the process.
It is very important that we do not reduce the ability of local parents, education providers and councils to respond quickly and effectively to new demand, and that local choice and diversity of provision are maintained. We all know that there is likely to be a big increase in demand for primary schools over the next three to four years. That will create a sudden boom in demand for pupil places and it is very important that we do not cause any delay in allowing councils to provide those places. My noble friend Lady Ritchie mentioned this in Grand Committee and she has given me permission to mention her name today although she is not able to be in her place.
Councils’ primary concern when encouraging new provision in their areas should, of course, be the needs of parents. If local parents do not want new schools to be established as academies, councils should be able to retain the option to reflect parental demand without having to approach the Secretary of State for permission. My concern, and that of my noble friend Lady Ritchie, is that the requirement within this schedule risks the creation of a potentially burdensome process, which could restrict the ability of local communities to respond quickly to demand. I was very interested to receive a copy of a letter to the noble Baroness, Lady Massey, dated 20 October, in which the Minister points out:
“Schedule 11 removes this consent requirement from certain kinds of proposals. These comprise proposals for new primary schools where they are replacing infant and junior schools, proposals for new voluntary aided schools, proposals for new faith schools resulting from the reorganisation of faith provision in an area, and proposals for a new school resulting from a faith school changing or losing its religious character.”
At the bottom of page one, the Minister says:
“We are removing the requirement on the basis that it is additional and unnecessary bureaucracy.”
If it is an additional and unnecessary bureaucracy for those kinds of schools, why not for all?
Baroness Massey of Darwen
My Lords, I shall speak to Amendments 71, 72 and 73. First, I thank the Minister for his conscientious response to the last stage of this Bill. He has sent out a number of letters explaining the policy, which I found very useful. Indeed, the letter he sent to me referred to by the noble Baroness, Lady Walmsley, gave some reassurances on the amendments I am going to speak to.
My main concern is that some measures proposed by the Bill may further fragment education on the basis of religion or belief. I have serious concerns about how the Bill makes voluntary-aided faith schools the easiest type of school to set up. I am also concerned about voluntary-controlled schools converting to academies, then being able to choose to increase their religious discrimination in admissions.
Currently, when a proposer wishes, for whatever reason, to establish a new foundation, voluntary-controlled or aided, or foundation special school outside of a competition, they need the consent of the Secretary of State. Following consent, the local authority runs a consultation on the proposals. The Bill, if passed in its current form, will change this, as I understand it, so that consent from the Secretary of State would no longer be needed for voluntary-aided schools, but it would still be needed for foundation, voluntary-controlled and foundation special schools.
I see some problems here. Almost all voluntary-aided schools—99 per cent of them—are faith schools. Admissions are determined by the school, which can discriminate against all pupils on religious grounds. In voluntary-controlled schools, local authorities set admissions and only about a quarter of local authorities have chosen to allow some or all of their voluntary-controlled schools to discriminate religiously, either in whole or in part.
Mr Gove has made it clear that he wishes to make it easier to set up voluntary-aided schools, which can discriminate. Such a school can use a religious test in appointing, remunerating or promoting all teachers, and even some non-teaching staff. In voluntary-controlled and foundation schools, this is only one-fifth of the teachers. The religious organisation sets the religious education curriculum in accordance with the tenets of the faith of such a school. In voluntary-controlled and foundation schools, the locally agreed syllabus is usually taught, which is not confessional to a particular faith. The religious organisation appoints more than half the governors there. In voluntary-controlled and many foundation schools, it is a quarter. While I thank the Minister again for his letter, my concerns are still not diminished and I shall watch developments on this issue very carefully.
Lord Alton of Liverpool
My Lords, I hope that the Minister, when he comes to reply to the amendments in the name of the noble Lord, Lord Avebury, and the noble Baroness, Lady Massey, will think carefully before agreeing with the premises which have been laid before your Lordships' House this afternoon. In the case of the noble Lord, Lord Avebury, I always feel some trepidation in opposing anything that he says, because he has been a noble friend in many respects for a long time. He knows that at 17 years of age I said—and I would never resile on it—that if ever I found myself elected to the other place, I hoped that I would be a Member of Parliament like him. I have always admired the positions that the noble Lord takes on many issues, and continue to do so.
Yet the noble Lord knows that a debate has also been under way in his party for a long time about faith schools per se. Indeed, it was the then Education spokesman in another place, Mr Don Foster MP, who said—I believe these were his exact words—that in an ideal world there would be no schools of a religious character. I know that the noble Lord agrees with that proposition, but it is one I fundamentally disagree with. I suppose I should declare an interest as someone who has been educated in faith schools and whose own children have gone through faith schools. I am also the governor of a faith school and I passionately believe that those who wish to opt for that kind of education for themselves or for their children should be free to do so.
There is not the problem, as the noble Lord suggested, of such schools being undersubscribed; they are of course oversubscribed. That is the problem in many parts of the country. I would say this to the noble Baroness, Lady Massey, on the possibility of creating new faith schools. In parts of London there are large faith communities—for instance, of Polish people or people from the African and Asian communities—and in the Borough of Richmond, for instance, a petition has been laid before the council urging the creation of a new faith school. To restrict the opportunity to do that would be to deprive us of something special.
This is an issue that was addressed in 1944, when perhaps the greatest of all social legislation in the last century went through Parliament. I think it would probably have united most of us. The then Catholic Archbishop of Westminster was in the Strangers’ Gallery for the Third Reading proceedings on that Bill, when RA Butler brought before the House the provisions that allowed for the state to contribute towards the creation of Catholic schools. The Catholic community of that time, as Members of your Lordships' House will be well aware, was mainly an immigrant community —many were from the west of Ireland, as my late mother was. Those were schools for impoverished communities. Indeed, Archbishop Griffin sent RA Butler a copy of Butler’s Lives of the Saints, so pleased was he with the resolution of the House in regard to that legislation.
Around 2,500 schools have been created in the years that have passed, mainly though the efforts of those local communities, and they have enriched our education system. I urge your Lordships not to tamper with the settlements that have been there ever since 1944: that these schools are normally over rather than undersubscribed and that there are already sufficient safeguards in place to ensure that denomination provision is not increased or decreased where it is inappropriate. It is also worth saying, before I conclude, that figures issued recently show that, certainly in the Catholic sector, around one-third of the children in those schools do not come from Catholic backgrounds and there are waiting lists for many of these schools up and down the country. This demonstrates that the ethos of those schools is something that many parents are opting for. That is something that we should celebrate, not in any way try to undermine.
Lord Avebury
My Lords, I am most grateful to the noble Lord for his kind remarks about his aspiration when he came into the other place, but does he realise that my amendment was not concerned with the creation of new faith schools, but was entirely a matter of the closure of existing schools? I am not attempting to prejudice the decisions that are made by the adjudicator, but simply to create a level playing field when it is a choice between closing a faith school or a non-faith school. Such a decision should not be determined by a requirement that the number of places of a denominational character should be preserved.
Lord Alton of Liverpool
My Lords, I was responding to the two speeches that went before and, of course, the amendments in the name of the noble Baroness, Lady Massey, try to limit the creation of new voluntary-aided schools. I accept what the noble Lord says about his own amendment and I simply say that there are no widespread complaints about the present arrangements. These things are usually best worked out on the ground. In the city of Liverpool, which I know well, one thing I have been very impressed by, and others in your Lordships’ House will be able to confirm this, is that in areas where once there was a sectarian and very hostile relationship between different Christian denominations, they have, through local collaboration, come forward with proposals and set up joint schools across the denominations. These things are best left to local determination, a point made earlier by the noble Baroness, Lady Hughes. This is something that is best left well alone because there is no widespread complaint about the present arrangements.
The Lord Bishop of Ripon and Leeds
My Lords, I want to follow the comments of the noble Lord, Lord Alton, about the advantage of leaving such arrangements to the local authority and the faith bodies in the localities. I could quote a recent example in north Yorkshire of the closure of a faith school and the way in which the children from there went to local community schools. It was the right thing to do in that example. The whole arrangement of voluntary-controlled schools is within the maintained system, whereby the faith authorities and the local authorities can work together for the benefit of the children of the area. So I, too, hope, along with the noble Lord, Lord Alton, that we can leave well alone in this area.
We need to stress that VA and VC schools are part of the maintained system. They are opportunities—and Schedule 11 seems to continue to encourage this—for there to be alternatives to moving towards an academy system. These schools remain part of the maintained system and are, therefore, places where the local authority and the faith authorities, usually the churches, can work together. I hope that both the parts which refer to the VA system and those which refer to VC schools can be maintained.
I am particularly concerned about Amendment 73, the third amendment in the name of the noble Baroness, Lady Massey, on voluntary-controlled schools. It seems to me that this is a very effective way, especially in remote rural areas, for authorities to work together to preserve a balance within the system which maintains, but does not increase, the percentage of church school places within a particular area. There are many examples of the ways in which collaboration can take place.
That is not to say that I am in any way in favour of the closure of small rural schools. Where it is possible, small rural schools, whether faith or community schools, can provide immense social and community cohesion within the comparatively small area that they serve, or for a small number of pupils over a sometimes fairly large geographical area. Small rural schools have much to contribute. We need to be able to continue the work between local authorities and faith bodies—particularly, in this instance, the Church of England—to preserve the balance within the system that we have at the moment.
One additional point that I should make about VC schools is that they enable voluntary sites to continue to be put to good use in school provision. If we abandon those sites, one of the problems is that they will either have to be bought from the trustees or, if they are closed altogether, they may revert to the original donor from some years—or, on occasions, a century or so—ago. That would represent a considerable capital loss to the school system. Voluntary-controlled schools are an important part of the way in which we work together for the benefit of the children of our communities and the cohesion of the villages and areas that they serve. I hope that we shall be able to maintain that effective provision through the voluntary control system.
Baroness Turner of Camden
My Lords, I rise briefly to support the amendment tabled by the noble Lord, Lord Avebury. As I have often said in this House, I am a secularist, but this does not mean that I am opposed to people who have religious beliefs or that I want to prevent their demonstrating those beliefs. However, the amendment that has been spoken to by the noble Lord, Lord Avebury, seeks to maintain a balance. Surely it is reasonable that that should happen. I should not like to see a reduction in the number of places for denominational pupils. On the other hand, the guidance proposed in the amendment would,
“not contain any presumption that the proportion of denominational places in the area shall be reduced or increased”.
In other words, it would maintain a balance. Surely a balance in this area is what everyone wants. I would expect the Government to regard it as very sensible and to accept the amendment.
Lord Touhig
My Lords, I will not detain the House for long. I was going to say a few words about the amendment of the noble Lord, Lord Avebury, but the noble Lord, Lord Alton, has covered the points that I would have made. In an exchange with the noble Lord, Lord Avebury, the other day I said that those of us of faith and those who are secularists—such as him—have to coexist. We have to try to find ways through the problem about the Isle of Wight, which he has properly highlighted. However, that is perhaps better decided by local people than by putting something in the Bill.
I shall say a few words in response to the three amendments of my noble friend Lady Massey of Darwen. The Bill provides that where a new school is required, the local authority must consider the establishment of an academy or a free school before consideration is given to any other type of school. From the point of view of the Catholic education authorities, that would be a disadvantage. In any entirely new academy or free school, priority can be given to children of faith in relation to only 50 per cent of the places in cases of oversubscription, and that would clearly be a disadvantage. The Bill therefore sought to compensate for and counter that disadvantage by making provision to allow voluntary-aided schools to be established more easily.
The amendment moved by my noble friend would effectively limit the opportunity to establish new voluntary-aided schools. That would be a handicap, especially where there is a demand for them—and there is certainly demand in parts of London where there has been a rapid growth in the Catholic population in recent years. The other disadvantage of my noble friend’s amendment is that, as I understand it, if it were part of the Bill, academies and free schools would be the only schools that could be established, and I do not think that that is the policy of our party.
Lord Young of Norwood Green
My Lords, I rise to speak primarily to Amendment 70A, which was moved by my noble friend Lady Hughes of Stretford. I must admit that it is a curious irony that a Government who often proclaim their belief in localism and plurality should seek to impose a prescriptive solution on new schools. I was recently looking at the range of schools that, for instance, the Church of England provides in London. There is a wide variety of about 150 schools; some are academies and some are community schools. Although academies are very much the flavour of the day, they are not—and surely should not be—the only solution. It would be dangerous to assume that there is only one solution.
I should perhaps declare an interest as a governor of my local community primary school, and as someone who participates in the Lords outreach programmes and visits a wide range of schools. One can see successful academies and one can see successful community schools. My noble friend is absolutely right to say that Amendment 70A is not anti-academy by any means. It sends the message that the issue should be left to local determination. I should be very interested to hear the Minister’s response.
Lord Hill of Oareford
My Lords, at the heart of the Government’s proposals and this debate is the question of how we obtain greater school autonomy, strike the balance between wanting to pursue that objective and raising educational standards, and resolve the tension that can clearly exist between that and localism. Perhaps I may pick up on the point about the Government thinking that there is only one model of provision, involving only free schools and academies. The whole purpose of the policy on free schools is to have as varied a range of types of schools as we can. That is also the case with academies. Studio schools, UTCs and bilingual schools are thereby emerging, many with a lot of local involvement. I recognise that that is slightly different from the point being made about local authority involvement. However, it is not the case that the Government are seeking a one-size-fits-all kind of school provision. We want variety but we are also keen to encourage schools that demonstrate greater autonomy, and that is what lies behind this clause.
We know that results from the academies programme begun by the previous Government provide evidence for this. Research from the National Audit Office last year reported that academies have increased the rate of improvement in GCSE results compared with trends in their predecessor schools. The latest provisional GCSE results data show that sponsored academies are still improving at a faster rate than other maintained schools. In the latest year, they are improving at more than double the rate of other maintained schools.
This evidence began to emerge some time ago and it is fair to say that we are not the first Government to seek to respond to it. We discussed in this House the previous Government’s education White Paper in 2005. That White Paper, and the Education and Inspections Act 2006 that followed it, set up the current system for establishing new schools. Again, I think it is fair to say that the system introduced under that legislation was designed to promote more autonomous schools and to reduce the number of new community schools. Therefore, that approach was established by the previous Government, although I accept that we are taking it further with our proposals.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his response and noble Lords for their contributions to this debate. In response, I shall touch on some of the points made.
The amendments tabled by the noble Lord, Lord Avebury, and my noble friend Lady Massey and the contributions from the noble Lord, Lord Alton, and the right reverend Prelate relate to the number of places in denominational schools for children who are predominantly—although, as was said, not exclusively—from families of faith. I understand and respect the fact that that is a very important issue for people of faith, as, indeed, it is for those of none. I do not want to go down the route of debating that issue except to acknowledge that I have heard both sides of that debate. The main thrust of the amendment is potentially relevant to all new schools in the future, and therefore to a much wider group of children. I therefore want to focus on the presumption.
Correct me if I am wrong, but I think that I have discerned that the principles of local determination on these matters and of retaining a wide diversity of schools in a locality—a balance, as my noble friend Lady Turner said—are shared and supported on both sides of the debate. I therefore hope that both sides will support my amendment as my noble friend Lord Touhig has correctly identified it.
As for the amendments tabled by the noble Baroness, Lady Walmsley, although I very much welcome her support for local involvement in decision-making on local schools, I do not feel that her amendments go far enough. She is not seeking to delete paragraph 6(1) from Schedule 11, which enshrines the presumption that where a new school is needed the local authority,
“must seek proposals for the establishment of an Academy”.
That is the core of Clause 36, to which we object. Given the resolution on academies at her party's most recent conference, it is somewhat surprising that the Front Bench here is apparently prepared to support a presumption in favour of academies. I do not support her amendment because it still does not challenge that presumption.
In response to the Minister I would say, as I am sure he would expect, that there is no divide at all between us on the desire to raise standards in schools, to increase opportunities for children—particularly those whose start in life has been more disadvantaged—and to achieve diversity of school provision. I take issue somewhat with his claim that the Government are merely extending the Labour Government’s policies on academies. The language used by the current Government may be similar but the scale of their intentions make this policy, and its outcome for the system of education in this country as a whole, qualitatively very different indeed.
I agree as well that, in the beginning of our embarking on the road of academies in disadvantaged areas, some local authorities were resistant to the idea. But things have moved on. The Labour Government in particular demonstrated that, by selective targeting of academies in the most disadvantaged areas, standards in those places and for those children could rise substantially. It is a very different matter for the current Government to propose to enshrine in law a presumption that every new school in the future should be an academy, with community schools only as a last resort.
It is also a very different proposition to say there should be a presumption that every school is able to become an academy regardless of whether it is equipped to handle the greater autonomy that such status brings. Although we on this side support academies in principle, the principles of local determination and a diversity of provision from which parents can choose are more important. We are not convinced by the Government’s argument. It is, by anybody’s standards, a step too far to enshrine this presumption in law. I wish to test the opinion of the House.
Lord Hill of Oareford
Lord Hill of Oareford
My Lords, in Committee, while I think that there was a general acceptance of the idea of focusing inspection more intelligently, a number of concerns were raised about some of the specific provisions in Clause 39. I said that I would reflect on these and report back. In my letter of 14 October to the noble Baroness, Lady Hughes of Stretford, I set out our policy intention and the changes that Ofsted will make to strengthen the arrangements in response to particular concerns that were raised.
The principle of proportionality is already a feature of the current inspection system with more frequent inspections for satisfactory and inadequate schools, and intervals of up to five years for good and outstanding schools. The intention behind Clause 39 is to take this to the next logical step by replacing the requirement for all schools to receive a routine inspection with an approach based on rigorous risk assessment that triggers inspection of outstanding primary and secondary schools where necessary. Clause 41 seeks to apply a similar approach for the inspection of outstanding FE providers.
In Committee, the noble Lord, Lord Hunt of Kings Heath, raised a particular concern that regulations made under the new powers introduced at Clause 39 could extend the categories of schools not requiring routine inspection to cover, for example, all academies or all faith schools without appropriate scrutiny. While we have been very clear about our intentions to use the new power to exempt only outstanding schools, I accept the general point made by the noble Lord, which is why I have tabled Amendments 74 and 75. They provide that any subsequent changes to the first set of regulations made under the new power—a draft of which was shared with the House as indicative regulations in March, exempting outstanding mainstream primary and secondary schools—will require parliamentary approval through the affirmative procedure. Amendments 81 and 82 offer the same commitment in relation to FE providers. I hope that these amendments remove any doubt about the Government’s intentions and any concern about a hidden agenda, and provide sensible and effective safeguards.
The noble Lord, Lord Hunt of Kings Heath, was also worried about the performance of some outstanding schools dropping and I understand that concern too. Our response to that point has not been to move away from the principle of greater proportionality but to look again at the question of risk assessment and the triggers that would cause an inspection to take place. Risk assessment already takes account of a range of information, including pupil attainment and progress, attendance, evidence of poor performance gathered through survey visits, warning notices issued by local authorities, views from parents, including through Ofsted’s recently launched parent view online questionnaire, and any complaints.
An inspection may occur where, for example, achievement was judged to be less than outstanding and has not improved; where particular groups of pupils are not making good progress; where attendance is significantly below average and not improving; or where Ofsted undertakes a survey visit and identifies concerns. A decision to inspect will also take account of the views of parents, local authorities, funding agencies and others in the local area.
Baroness Morgan of Huyton
My Lords, I declare an interest as the chair of Ofsted and in that context shall talk briefly about how Ofsted is addressing the concerns that have been raised about the proposals to reform school inspection arrangements for maintained schools and academies. In doing so, I shall reflect on the attitudes that we have to risk and the reassurance that inspection can offer.
I have been pleased, but obviously not surprised, by the interest in these proposals that noble Lords have taken and the import given to regular and robust inspections of schools. I understand the concerns that were raised in Committee and are still being raised, but I hope that I can put some of our work in context.
I recognise that the approach being proposed is not without risks, and it is important that we develop a mature, shared understanding through a dialogue with the public and the professions about the right frequency and intensity of inspection and regulation. We know that there is irritation about what is perceived to be too frequent inspection of high-performing institutions; we know on the other hand that parents would like schools to be inspected all the time, and we have to get that balance right.
After the detailed discussions that took place following Committee, I think that the proposed new inspection arrangements strike this balance by being more proportionate and focusing inspection on those who need it most. They would mean the end of routine inspection for schools that have been judged outstanding but more risk assessment of all outstanding schools and inspection for those where the greatest risks are identified. They would also allow more frequent inspection of schools judged satisfactory, focusing resources where they can contribute to real improvement.
It is important that we keep the risks associated with these proposals in context. Ofsted’s evidence shows that a large majority of outstanding schools has continued to be good or outstanding over time. In the last year that it routinely inspected schools, 2009-10, more than 90 per cent of outstanding schools were judged to be outstanding or good when re-inspected.
We have also found that our risk assessment proposals and processes are already working well and seem to be identifying those schools that are slipping back. In 2010-11, Ofsted visited only those outstanding primary and secondary schools that were identified through its current risk assessment procedures. This amounted to 72 inspections, around 2 per cent of all outstanding schools. In two-thirds of those the schools had declined, with 11 being found to be satisfactory and three inadequate, but the rest were good. As noble Lords have heard, Her Majesty’s Chief Inspector has agreed to adjust the risk assessment threshold so that in future at least 5 per cent of schools are indentified for inspection through the process. This will mean that about a quarter of outstanding schools will be inspected over the five-year period.
Risk assessments normally commence within three years of the previous inspection. When this was discussed in Committee, there was understandable concern that school performance can suddenly decline, particularly, as we know, when there is a change in leadership, but there are other factors, too.
Of course, any delay in identifying such schools where performance is slipping has a dramatic effect on its pupils. In response, we have agreed to bring forward the risk assessment of schools where there has been a change of head teacher before the three-year point has been reached. We have also agreed to trial a new approach where Her Majesty’s inspectors make direct contact with new head teachers as part of the risk assessment to explore the school’s performance at that stage and the head teacher’s plans for it. As noble Lords have heard already, Ofsted has also introduced a new feedback mechanism, Parent View, which will identify spikes that we would then further investigate. For example, if a sudden spike showed a decline in behaviour or if a concern about leadership was suddenly expressed by parents at that school, that would form part of the jigsaw that informs our risk assessment and our appropriate action.
I appreciate that concern has been expressed in this House about increased risks in relation to safeguarding should there be no routine inspection of schools. There can be no greater issue of concern both here and to parents, carers and schools than the safety of children. However, we should place this risk in context. Improvements in safeguarding in schools have been rapid and widespread in recent years, and nearly all schools now give an appropriately high priority to getting their safeguarding procedures right.
In her commentary on the findings set out in Ofsted’s 2009-10 annual report, the previous chief inspector wrote:
“Safeguarding … is an issue addressed not only with increasing sureness by those responsible for keeping children and learners safe, but one felt keenly by those most vulnerable to harm and neglect”.
Parents, carers and children can be reassured that almost all schools now take a careful and responsible approach to their safeguarding arrangements. In outstanding schools, Ofsted has generally found that good practice in safeguarding forms part of the fabric of the school, involving every member of the school community in some way, with a sharp eye on the needs of all pupils, especially the most vulnerable. Indeed, it is worth emphasising how rare it is for any school to be found inadequate solely on the basis of weaknesses in its safeguarding arrangements. In 2009-10, of over 6,000 schools inspected only 26 were judged to be inadequate for issues related solely to safeguarding.
We are not starting from a position of concern, but it is worth keeping in mind that inspection and the threat of it has played an important part in getting us to this position. Ofsted’s focus on safeguarding over the past few years has certainly helped to focus minds on the need to take all appropriate steps to guarantee and promote children's safety. That is why Her Majesty’s Chief Inspector has agreed to inspect a random sample of outstanding primary and secondary schools as part of a review to ensure that their safeguarding arrangements remain strong, and to share the good practice found by inspectors. Ofsted will use this to determine what further action may be necessary in future.
It should also be kept in mind that safeguarding information is shared with Ofsted by local authorities, whistleblowers in schools and parents where they have concerns. Ofsted will continue to take such information into account as part of its risk assessment procedures.
I know the level of seriousness with which this issue is viewed in the House and I want to be clear that there is no greater issue of concern to Ofsted. I believe that the procedures now outlined should give assurance on this issue to the House, but we will keep them under review. Regulators and inspectorates such as Ofsted are rightly expected to manage risk in a proportionate way. They are expected to protect the public, especially the most vulnerable, from risks that individuals cannot easily manage for themselves. We know that the public expect Ofsted to help protect them, their children and, importantly, other children from poor-quality education and care and from harm. However, it can do that effectively with the resources that it has available only if it is able to focus inspection on the right issues and on the schools most in need of improvement. That context is particularly important to this debate.
Baroness Walmsley
My Lords, I was delighted to hear what the noble Baroness, Lady Morgan, was saying about the importance of inspecting safeguarding. When he winds up, will my noble friend confirm what was put to me in a letter from the Secretary of State on 14 October? I raised the issue of safeguarding inspection, and he said that he was intending,
“to ask Ofsted to conduct a thematic review of safeguarding involving a sample of outstanding schools, and to use the outcome of this to inform any further decisions”.
I am sure that the noble Baroness, Lady Morgan, and her organisation will be happy to respond to that request from the Secretary of State.
Baroness Hughes of Stretford
My Lords, I welcome the affirmative resolution procedure introduced by Amendment 74, which will mean that Parliament will have to consider any further proposals by the Government to change and particularly to extend the exemption from inspections for any other categories of school. That is a bottom-line issue and I am pleased to see that the Government have brought forward those amendments. However, and we will go on to debate this in the next group, the principle of exempting any public service from the possibility of inspection in the future is a principle that we cannot support. Risk assessment and proportionality is one thing—for a long time it has been the approach adopted by Ofsted and supported, as it has developed, by successive Ministers including myself and my predecessors in the previous Government —but exemption, potentially for ever, even for a school judged to be outstanding is quite another.
Do the Government intend to exempt, for example, excellent hospitals from further inspections? What about excellent nursing homes or care homes for the elderly? I suspect not, because the Health Secretary announced today increases in the inspection of hospitals, including no-notice inspections, of which I entirely approve and think there should be more of in relation to schools as well.
I note in the Minister’s response to the Committee and in his letter to me, which my noble friend Lady Morgan has outlined, the actions that he has agreed Ofsted will take in relation to outstanding schools if this measure is approved. They will try to minimise the dangers—there are dangers, not just to safeguarding but to educational standards—that could arise from the government decision wholly to exempt such schools from inspection.
Lord Hill of Oareford
My Lords, let me respond briefly to the specific point about safeguarding raised by my noble friend Lady Walmsley, which I think the noble Baroness, Lady Morgan of Huyton, alluded to. I can confirm that the thematic survey of safeguarding will take place and will be used to inform the judgments that we make going forward about that important issue.
I turn to the core point made by the noble Baroness, Lady Hughes of Stretford, about the thinking behind the Government’s approach. I recognise the points of view that she put across: wanting a more proportionate approach based on having far more data about how schools are doing generally and publishing those so that parents can see the whole time how the school is doing, but having the position that if schools are performing well—delivering what parents want, delivering strong results—we need not make them be inspected in the same way as all other schools.
Baroness Hughes of Stretford
Just while the Minister is on that point, would he concede my main point, which is that it is not necessary to exempt outstanding schools from inspection in law in order to have the different, proportionate approach that he talks about?
Lord Hill of Oareford
The reason why we are making this change and doing it now is because we are putting on a statutory basis the approach that we want. That is why we are doing it. In practice, the vast majority of secondary schools will be inspected through a thematic survey visit over a five-year period. The risk assessment arrangements will trigger inspections. The starting point is that we think it builds on the principle of proportionality that already exists in inspections. With these increased safeguards in place, and I am grateful to noble Lords who have encouraged us to strengthen those and look at this again, we think that it will deliver a proportionate and effective system.
Lord Hill of Oareford
“(9) In section 121 of EA 2005 (parliamentary control of subordinate legislation)—
(a) in subsection (2)(a), after “subsection” insert “(2A) or”;(b) after subsection (2) insert—“(2A) This subsection applies to regulations under section 5(4A) (power to prescribe schools exempt from inspection), apart from the first regulations to be made under that subsection.
(2B) A statutory instrument which contains (whether alone or with other provisions) regulations to which subsection (2A) applies may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.””
Lord Knight of Weymouth
Lord Knight of Weymouth
My Lords, I am moving Amendment 76, which was tabled in the name of my noble friend Lord Hunt of Kings Heath, at his request. The amendment would delete Clause 39, which we have just been debating in respect of the government amendments. As we have heard, the clause amends the current requirement under Section 5 of the Education Act 2005 for the chief inspector to inspect and report on every school. The clause provides for certain schools to be exempt from such inspections in future, as we have heard, subject to necessary regulations being approved by Parliament. I recognise that exempt schools may still be subject to inspections as part of the chief inspector’s surveys of general subjects and thematic reviews, but I remain concerned, as does my noble friend Lord Hunt, that this still leaves a potential gap in the inspection regime.
According to the Government, the aim is to introduce greater proportionality to the inspection system for schools and, in particular, to reduce the inspections for outstanding schools. The concerns about this are for two principal reasons. First, the open-ended nature of the clause would allow the Secretary of State to exempt other categories of schools, such as academies or free schools. We all know that Ministers have either been in a state of denial or embarrassed when academies have not done well in their Ofsted inspections. No doubt we will see the same phenomenon with free schools. Will the Minister confirm that the Government have no intention of seeking to exempt academies and free schools en bloc from regular inspections in future?
My second objection is to the principle of exempting outstanding schools per se. This flies in the face of the Government's approach to regulation in other sectors and the evidence is that not all outstanding schools will remain so. Indeed, of the 1,155 schools that have been judged outstanding by Ofsted, on subsequent inspection over 30 per cent had a reduced grading, including 58 that went from the top grade of outstanding to the third grade of satisfactory. Given that, I find it difficult to understand why outstanding schools should be exempted. Perhaps it is because the Government do not want to fund Ofsted to do these extra inspections properly and this is simply a way in which to reduce the cost. If that is the case, I would be delighted if the Minister was frank enough with your Lordships to say so.
The Government apparently believe that risks can be reduced, because Ofsted will develop a risk assessment approach, including a basket of indicators that flag up concerns. We have heard described very well by my noble friend Lady Morgan the risk-based approach being undertaken by Ofsted but, because the data that will inform that approach are likely to be gathered a number of years after a school inspection, there is a real risk of a school deteriorating and students suffering for some time before any intervention on that basis is triggered. For example, I would be concerned about the impact of a free school being established in an area where an outstanding school has a catchment area, attracting children who would otherwise enrol into that school, however outstanding it may be, and causing a sudden deterioration just because of a loss of funds.
There are all sorts of scenarios that are not just around a change of leadership. I remind the Minister of the debate that we had on Monday around admissions, when I put it to him that the fundamentals to which the Government have to have regard in a free market-based system of school improvement such as that which they are adopting are fair funding, fair admissions and inspection as a form of accountability. He replied:
“These are the three principles that we need to uphold”.—[Official Report, 24/10/11; col. 642.]
So he agrees—and yet, as with admissions, he is watering down inspections in the context of moving to a more market-based schools system.
I am grateful to the Government for reflecting on the debate in Committee. As we have heard from the Minister, the Government are now proposing that any move to exempt a category of school will be subject to the affirmative procedure. That is welcome, but, of course, this House only very rarely rejects such legislation. This really is our only chance to decide whether or not we are happy with some schools being exempted from inspection, potentially for ever.
I have also noted the intention to trial the new approach in schools where a new head teacher has been appointed, and the Minister has made it clear that Ofsted will adjust the risk-assessment process so that at least 5 per cent of outstanding schools will be inspected each year. As far as it goes, this is welcome too, but it does not go far enough.
I would contrast, as has my noble friend Lady Hughes of Stretford, what the Minister is currently proposing in education with what is happening in other sectors. Let me refer him to the NHS, as she has done. This summer, the health regulator CQC announced it was replacing its light-touch style with an annual inspection of each NHS and independent sector provider. As the CQC says:
“When people’s lives and well-being are at stake, the public don’t want to hear about light-touch regulation.”
That philosophy should surely apply as much to education and the teaching of our children—to the life chances of children—as it does, perhaps, to our death chances in the NHS. What is so different about children that we do not want to regulate and inspect their education? Indeed, let us look at this in a commercial context. Would a big retailer such as Marks & Spencer not quality-assure its best stores as much as its underperforming stores? I put it to your Lordships that Marks & Spencer would quality-assure every retail outlet that it has.
I find it extraordinary that Mr Gove, the Secretary of State, is seeking to exempt outstanding schools when he was recently so critical of the methodology used by Ofsted to rate outstanding schools. Only five weeks ago, at the National College for School Leadership, he voiced this concern. Yet now his Minister in your Lordships’ House, the noble Lord, Lord Hill, is seeking to exempt the very same schools from regular inspections. The public and parents surely have a right to know whether standards are being maintained or not. If the inspection system is to retain its credibility, regular inspections are essential for all schools.
Finally, I would simply say to the Minister, who I am afraid was floundering around about why he needs to proceed with this exemption—he has had to compromise and come up with all the whys and wherefores in making this all right—would it not just be easier to drop this and give way to common sense and have all schools inspected? I beg to move.
Baroness Morris of Yardley
My Lords, I support this amendment. I shall start with what I think is going to be my only line of agreement with the Government on this. To take the attitude that intervention in schools should reflect the risk of schools doing badly, and to say that we should intervene less when schools are successful, is absolutely right. As my noble friend has just said, that is a principle that was followed by the previous Labour Government, so I am with the Minister on that. We should not be constantly going in to excellent schools and getting in the way of them doing an excellent job; that is an absolute principle.
The second absolute principle is that inspection should be universal for all our schools. Does the Minister really think that one visit every five years is going to be a big burden on outstanding schools? One visit by Ofsted inspectors every five years; that is what happens at the moment, that is what the data say.
The reason for drafting this clause perplexes me. I am trying to think what motivates it because, to be honest, I never thought that the Tories would go soft on inspection, and that is what they have done with this clause. They fought hard to put Ofsted in the legislation, they fought hard to put it into schools, they have argued the case with head teachers and teachers, almost all of whom were opposed to inspection when it first started, and the Labour Government did the same. The political parties have been on the same side on this; we have thought that inspection was a necessary part of raising standards. So I am absolutely perplexed why the Tories, of all parties, should go back on this now. This is a principle, and you would have to come forward with some absolutely outstanding reasons why this principle should be broken. That principle is that in a devolved system, more than ever, every school should be inspected. Every parent has the right to know that the school which their child attends should be inspected. Every child should have a right to be reassured that the school which they attend should be inspected. That is an inalienable right and should be a fundamental structure of our school system.
The second question is: is doing that once every five years a terrible burden on schools? I do not think it is. To some extent, that is where the argument finishes. If you believe that those rights should not be given to parents and teachers, vote against this amendment. If you really believe that one inspection every five years is a terrible burden—do not forget that some children will have gone almost right the way through a secondary school in that time while there has never been an inspection, as they will have started in year 7 and might leave in year 11—then vote against this amendment.
I am going to be really helpful to the Minister here. I am going to warn him not to get into a position that I know I got into when I was a Minister. It is a great ministerial habit when you come up with an idea. Listening to the debate, I have to say that when the Minister responded to my friend Lady Hughes on the previous amendment it was the most troubled that I have heard him in the whole consideration of this Bill. I did not believe that he had convinced himself, let alone the House. What is happening now is that the Government have a policy but they are, in honesty, persuaded by the arguments against it. Rather than withdrawing that policy, they are seeking to put plaster in the holes and rearranging the bricks: “Well, let’s have greater risk assessment. Let's talk to the heads when they are new. Let’s do this, that or the other”. I can tell your Lordships that that is how the camel was invented, rather than the horse.
I remember when we ourselves got into exactly that position. You do not want to backtrack, because this is politics, so you start trying to plaster up the cracks. But what you end up with is so disastrous that in two years’ time you are asking, “Why weren’t we just brave enough to say that we got that wrong”?. I say to the Minister that he is at that point now. He should take a deep breath and protect himself from having to come to your Lordships’ House in two years’ time to answer many questions and queries about an inspection system that clearly will not work.
I have two more points to make. I really worry that the Minister may have constructed a terrible bureaucratic tangle in order to get out of the political difficulty that he is in. He will now have an army of Ofsted inspectors doing more risk assessments. They will have to weigh and measure the schools and collect the data. Now they will have to go and talk to every new head when he or she is appointed to a school—perhaps the Minister could tell us how many interviews that is going to be in a year—just to check their plans for that school. The Government would not have to do that if they backed this amendment. From the schools’ point of view, we are meant to be freeing them from this terrible burden of one inspection every five years, but what is the Minister putting in its place? He is making them provide more data. He has the local authority checking on them, so that it can refer back to Ofsted. He has the new heads having to talk to Ofsted and he has a third of them having to be inspected every five years. They will not know where they stand. I can assure the Minister that it would be easier for them and less of a burden if he would just say, “Once every five years, and that’s it”.
My last point is this, and to some extent it is the most important point for me. From the point of view of the Ofsted inspectors, it is crucial that they measure the standards of every single school in this country by the performance of the best. That is absolutely central to effective Ofsted inspection. If you say to your average Ofsted inspector—not the ones doing the one-off thematic reviews—who spends their time going into schools, “Thou shalt not be seeing any outstanding schools”, how do they know what outstanding looks like? When they go to the satisfactory school, it might be the best that they have seen for six months and they might think that that is outstanding. To help the Ofsted inspectors, it is crucial that, as part of their job, they see outstanding schools as part of their regular inspections.
To be helpful to the Minister, I think I know why he, or his colleagues—I am sure that it was his colleagues and not him—came up with this terrible idea: it is this idea of having a long list of freedoms which you can grant to schools to prove that the policy of granting freedoms to schools works. We saw it in the debate on admissions on Monday and we have seen it today. These are wrong freedoms, because they are freedoms that answer the political drive of the Government and they stand in the way of raising standards. This is the moment when the decision is made: go on and the camel will have several extra humps in two years’ time, I promise the Minister that. I passionately support this amendment, more than anything else in the Bill, and hope that noble Lords, having listened to this debate will vote to preserve universal inspection. I praise the Tories for bringing it in in 1988; I think it would be terrible if they voted to get rid of it now.
Lord Quirk
While the Minister is taking the deep breath that the noble Baroness, Lady Morris, has urged upon him, may I give him an extra couple of minutes of breathing time by saying what a difficult job he is going to have in offsetting the arguments presented by the noble Baroness, Lady Morris, and the noble Lord, Lord Knight? Surely it is the outstanding schools that need to be inspected in order to have reports coming out showing what can be done in state sector, mainstream schools. Once every five years is, as the noble Baroness, Lady Morris, said, nothing compared to the extra bureaucracy which we are threatened with in some kind of compensation for this. I hope that the Minister will bow to the wisdom that has been cast before him this afternoon.
Lord Lucas
My Lords, I add my voice to those who have already spoken. I am greatly saddened by this Government’s attitude to inspection, which seems to me to be coloured by too many years in opposition listening to schools complaining about inspection. Indeed, inspection under the previous Government was not generally taking a constructive turn, but then, we had not constructed it in a constructive way ourselves previously. I had hoped that this Government would go back to first principles and ask what inspection is for. If you start by saying that it is to make sure that our children are receiving the best possible education, then you need a system which is much faster to react than the current one. It can take Ofsted three years to pick up that a school is going wrong, because their data are always backward-looking and they always want two years of that before they believe that there is any trend in place. So in the schools that I have seen and known to have gone wrong, it has been the third year or the beginning of the fourth when Ofsted have come to call and by then, a lot of children’s educations have been harmed. I would have been looking to produce something which was much faster to react, rather than something which is going to be slower to react.
To pick up the point made by the noble Baroness, Lady Morris of Yardley, and the noble Lord, Lord Quirk, it is essential that inspectors, the people who are seeing a lot of schools, see the very best. The point about the best schools is that they are utterly surprising and jaw-dropping when you see them: you could not believe that what they are doing could be done. When you have seen it, you start to understand how other schools could do it too, but if you have not seen it, you just do not know; you just accept that the ordinary way of doing things is sufficient, that the platitudes that, “We are doing well by our children here” are right, because it is okay by the current average, rather than being anywhere near the potential of the children. When you see the difference that a really good school can make, you understand that there is a long way to go; not that schools are bad at the moment, but that the good schools can be a great deal better than they are. That understanding comes from going round outstanding schools and being able, as the noble Baroness, Lady Morris, said, to set your yardstick on the basis of what you know can be achieved with children like these in a school that really understands how to deal with them.
We do not have that; we have something that goes backwards. We have a decision to remove outstanding schools from the purview of Ofsted. However, things change. I came across a school by chance the other day—Glenthorne in Sutton. It is sprouting all sorts of new initiatives. You can study three A-levels and golf, as well as tennis and football, to a professional standard. It is great to see these initiatives but no one will take a look at them. No one will know whether they are going right or being balanced correctly. It will be three years before anything shows in the figures. However, a good, experienced head, going around six months into the project, would know whether it was going right. To think that you can do this by remote control—that we are looking after the future of our children by stepping back in this way—is a profound misconception. I am afraid I despair of changing the Government’s mind at the moment, but give it a year or two, let an outstanding school or two crash, and then we will think about it again.
Baroness Hughes of Stretford
My Lords, I cannot improve on the contributions that we have heard from my noble friends and the noble Lords, Lord Quirk and Lord Lucas. I just want to add a few more points to the debate.
The first is one of principle. I believe strongly that not just the Government but we in this House and the other place are guardians of the public when they use public services. We have to take very seriously the arrangements we make to ensure the safety as well as the standards of those services. Secondly, as we have seen, the possibility of an inspection in any public service is not a guarantee of high standards. However, the certainty of no inspection surely means a huge risk of declining standards and, in this case, a risk to children. Thirdly, our experience in other sectors, particularly in health and social care recently, shows that pulling back too far on inspection has led to serious risk to patients and older people. Fourthly, there is the point that I made in my previous contribution, which, with respect, I do not think the Minister answered fully. Exempting outstanding schools completely is not necessary in order for them to have a qualitatively different inspection regime. We should keep them in the framework of inspection.
My noble friend Lady Morris asked the Minister to take a deep breath and think again about his position and responsibilities. I ask noble Lords also to think from the point of view of a parent of a child at a school, with which they may well be very happy as an outstanding school. However, they would not be happy to know that it would never be inspected again. A further point is that when parents are looking for a school for their children, they look not only at a school’s results but on the internet for Ofsted reports. In this instance, a few years down the line there will be no up-to-date Ofsted reports for those parents who are looking for a school to examine. They will not know the difference between the school as it was when it was outstanding and the school as it is further down the line. On this issue we all have a responsibility to consider all the points made, particularly the dangers inherent in this approach, and whether we are happy to support them.
Baroness Howe of Idlicote
My Lords, I have listened to the whole debate, particularly to the noble Baroness, Lady Morris of Yardley. She completely impressed us all and has certainly convinced me. Until now I wavered a little on this point. It does not make sense for Ofsted not to be involved in the ideal against which other schools and schools in the future should be measured. I hope that the Minister, after the few extra minutes he has been given to breathe by virtue of the intervention of the noble Lord, Lord Quirk, will be able to rethink a little and, above all, get the other place to read what the noble Baroness, Lady Morris, said.
Lord Hill of Oareford
My Lords, I am grateful to the noble Baroness, Lady Morris of Yardley, for her career advice, which I take in good part. I am sure that it was meant in good part. If she sees the humps developing on my back as I respond, she will understand that, camel-like, I must bear the course—I misquote Shakespeare.
The noble Lord, Lord Knight, set out the main points, and I will not speak at length because the substantive response in terms of what the Government are trying to do relates to the principle of proportionality upon which this issue is based. In response to the concerns raised in Committee, we went back, thought again and strengthened the safeguards that have been put in place. However, I recognise that they are not to the satisfaction of all noble Lords.
The noble Lord began with two points. His first concern was to ensure that there was no intention to exempt free schools or academies en bloc. There are two answers to that. The first, which he acknowledged, is that we have made changes so that that could not happen other than through an affirmative order. However, that is not the intention of the Government. I have no desire to exempt all free schools and academies from inspection. That comes back to the point made by the noble Lord on Monday, which he half remembered. He talked about there being three principles—fair funding, fair access and fair inspection. I reiterate my agreement with that because the approach to inspection should be the same for any type of school. However, we would argue that an outstanding academy or mainstream school obviously should be treated in the same way. I would not want there to be exemptions for any types of school.
The noble Lord said that in the past—perhaps speaking from his own experience—Ministers may have looked too favourably on academies because they did not want those schools to be seen to fail because they were seeking to take forward a policy direction. That is not my wish at all. One of the things that we are doing is seeking to increase the pressure on underperforming academies to make sure that we apply that approach to them just as we would to any other school.
The noble Lord asked in passing whether our proposal is driven by money. The matter was raised previously so I shall respond to it. It is a perfectly fair question and the answer is that it is driven by the desire to have a more proportionate approach to inspection and regulation. Money is not the driver.
A point raised a number of times concerned how one picks up best practice. I accept that that is a good and fair question and it was put by the noble Lord, Lord Quirk. Clearly, a flow of new outstanding schools will be coming through routine inspection every year, but the thematic reviews and surveys will also pick up best practice. However—this relates to the point raised by my noble friend Lord Lucas—it is also the case that we are keen to encourage more and more the professional sharing of good practice, and it is spreading. I do not think one needs to argue that an inspection which currently takes place once every five years is the only way to deliver the professional sharing of good practice.
I take the point raised by my noble friend Lord Lucas about the process being faster acting. The current regime leaves five years between inspections, but the combination of the triggers which will kick in earlier will mean that, if there are problems, they will be picked up faster under our new system than under the current one.
In response to the point raised by the noble Baroness, Lady Hughes of Stretford, I do not think that a school would have the certainty of there being no inspection. The much tougher triggers will mean that there will never be that certainty because there are all sorts of way in which an inspection can be brought forward.
I understand the position taken by the noble Lord, Lord Knight, and the noble Baronesses, Lady Hughes of Stretford and Lady Morris of Yardley, who argued their case forcefully and clearly. The difference between us is not about the importance of inspection, the fact that we think parents should have information or that we want to go soft on inspection; at heart, it is that we think it is time to develop the existing approach to proportionate inspection and take it one stage further.
Lord Knight of Weymouth
My Lords, we have had an excellent debate. I am delighted that, having had a busy day, my noble friend Lord Hunt of Kings Heath is now in his place to hear the end of it, given that he instigated it. In many ways, I do not need to add to the debate. As the Minister has just said, there is a difference of opinion. The case was brilliantly put by my noble friend Lady Morris and supported by others on all sides of the House. I think that the argument has been won and I hope that the vote will now be won. I wish to test the opinion of the House.
Lord Northbourne
“( ) in the case of any school taking in children at compulsory school age, the extent to which such pupils are emotionally, socially and cognitively “school ready” when they join the school;”
Lord Northbourne
My Lords, this relatively modest amendment contains an important principle. It is on that basis that I shall take the time of the House to introduce it. This Bill makes major structural changes to our school system which I support. We need to recognise, however, that for many schools the burden of responsibility for delivering satisfactory educational outcomes will change. Many primary and secondary schools will themselves have to justify their success or failure much more clearly. They will have less opportunity to have the comfort of being able to pass the buck to the local authority. Education and well-being in the early years foundation stage will still remain wholly the responsibility of the local authority. So there will be an educational interface between the local authority and schools when the child reaches the age of five. My amendment is designed to draw attention to the possibility of friction—or, indeed, of unfairness—at that interface.
The amendment would ensure that there will be an objective assessment of school readiness of children as they enter their primary school—whatever kind of school that may be. This assessment could be used to estimate the extent to which any poor outcomes in any particular school arise from the school being overloaded with children who, when they joined the school, were not school-ready and thereby deflecting resources to remedial work when those resources should have been available for teaching.
The criterion for a successful school is to add value to the child’s education. We need to be able to identify which institutions are failing to deliver the appropriate amount of added value: is it the schools or is it the early year settings? If we want to achieve this Government’s objectives—and I think we probably all believe in them—to improve school outcomes and reduce inequality in our society, it is important that children arrive in school with their foot on the first rung of the educational ladder to be socially, emotionally and cognitively ready to settle in and to learn. Today, alas, we still have far too many children who are not school-ready at the age of five.
I thank the Minister and his department for the help that they have given to me and for the information about the current situation as regards inspection at age five. I have to say that much more is being done than I was aware of when I set down this amendment. Most children are being assessed for progress towards completing the early years foundation stage of the curriculum and those assessments are available to the public.
I do, however, have two serious concerns. The assessments are being made by the providers of the early years foundation services that the child is receiving. They are, therefore, far from impartial. If we are to have a fair assessment of the added value that a school or an early years setting is delivering, the starting point as well as the outcome must be assessed impartially. My second concern is that a small but significant minority of young children today are still not participating in the early years foundation stage programme. This is often because their parents do not want to make contact with the authorities because they are afraid of having their children taken away. Yet these are often the most disadvantaged children of all—often from families designated as hard to reach. They therefore tend to be the children who need most remedial help when they get to school. They are therefore heavy users of school resources. They are the most likely to fail in school, yet they are not taken into consideration in the assessment of the intake of the school.
Is the Minister prepared to give an undertaking that the arrangements for checking each child’s school readiness when they join a primary school at five years old will be improved so as to be impartial and include all children joining the school, not just those who have been following the early years foundation stage programme? It would also be comforting if the Minister could confirm that, just as schools may be criticised if they do not give their pupils the educational added value they need, some way will be found to chase up recalcitrant local authorities which are failing to help those children most in need. I beg to move.
The Lord Speaker (Baroness D'Souza)
My Lords, I understand that there has been agreement that Amendment 76A shall be grouped with Amendments 77, 78 and 79.
Baroness Walmsley
My Lords, I have Amendment 77 in this group. Before speaking to it, perhaps I may say how right the noble Lord, Lord Northbourne, is to emphasise the importance of the concept of “school ready”, which was referred to a number of times by Graham Allen in his important report about early intervention. The noble Lord is also right to point out that some parents will take advantage for their children of the early years provision that the Government make available to them, but others will not. That is why it is very important that their stage of development is properly and professionally assessed as early as possible so that schools can help to bring them on if necessary.
My amendment is very simple. It merely adds the words “and well-being” in the Ofsted framework as laid down in Clause 40. I would prefer to see them in the Bill, but my right honourable friend Michael Gove has assured me, and assured other noble Lords in the letter to the noble Baroness, Lady Hughes, dated 14 October, that he expects Ofsted to inspect children's well-being and accepts the link between children’s well-being and their achievement in their school subjects and learning. He has also assured us that Ofsted will use its programme of subject and thematic surveys to look in detail at specific aspects of pupils’ personal development. That will certainly pick up issues where children’s well-being is not as it should be, perhaps where equalities issues are not as they should be because, of course, children cannot have well-being if they feel discriminated against. I have tabled my amendment in the hope that it will give the Minister the opportunity to confirm those things.
Baroness Benjamin
My Lords, I thank the Minister for the letter dated 14 October that he sent to the noble Baroness, Lady Hughes, in which he gave assurances that Ofsted’s inspections will consider how well schools provide the well-being of those to whom equalities issues apply and that equalities issues will underpin the whole approach to inspection and will include all protected groups under the Equality Act 2010. It is also good to learn that Ofsted will consider how well gaps are narrowing between the performance of different groups of pupils both in the school and nationally because, as we all know, the gap in social mobility is growing wider among certain groups. It is important that schools are judged on the quality of their teaching, which should cater for the range of needs to help all pupils to progress and to inspire them to have high aspirations in a fair and equal way and, as the Minister said in his letter, free from bullying and harassment because of their culture or background, from which so many children in our schools suffer. I am delighted that these issues are being addressed and that the well-being of all children is being taken into consideration.
How can we make sure that equality issues are delivered in schools day in, day out? What measures will be put in place if schools do not comply with these ideals? I ask these questions because just today I received an e-mail from a supply teacher with a complaint from children who feel that their equality issues have been violated in a school during a lesson. They have asked me for help and guidance, so I would like the Minister to help me with my guidance. I will be interested to hear his answer to this question.
Baroness Flather
My Lords, I shall speak to my Amendment 78, which is in this group. It is a very simple amendment to put community cohesion back on the list of items Ofsted will inspect. When I learnt that it had been taken out, I was very perturbed because if schools have responsibility for community cohesion, as I have been told, I believe that it is necessary for Ofsted to look at what they are doing for it. I think that this is more than ever an extremely important area for schools to concentrate on. It is about not racism or equality; it is about the community in which they live and being part of that.
Lord Quirk
My Lords, I rise to speak to Amendment 79. Clause 40 requires the chief inspector to consider a familiar quartet: the spiritual, moral, social and cultural development of pupils. Amendment 79 would insert the word “linguistic”. In other words, we would wish the chief inspector to focus upon the child’s unique and very precious language faculty, and properly so, because language proficiency is not only essential for the other desiderata in Clause 40, for example social and cultural development, but, more widely, it is a precondition for the whole of education itself.
Many thousands of our children start school linguistically impoverished and hence cognitively impaired. The numbers extend far beyond the unfortunates with pathological problems that require serious intervention by speech and language therapy. These are a tiny unfortunate minority compared with the far greater unfortunates who by reason of family dysfunction or social circumstance have little experience of parental or sibling chatter let alone bedtime stories. They have been denied the rich linguistic exposure that more fortunate children can happily take for granted.
The language faculty depends crucially upon early intervention. Language development is something that has to happen as early as possible, pre-school preferably, as we have just heard in relation to Amendment 76A, moved by my noble friend Lord Northbourne, and as we did on his very first amendment, last week, when the elegant intervention by the noble Lord, Lord Peston, was especially memorable. If serious linguistic deficiency cannot be spotted before school, and if it cannot be spotted at least in the first few terms of primary school, then the consequences are disastrous.
None of this is controversial, and it is indeed in line with Her Majesty's Government’s policy. What we are talking about is language development that merely leads to the confident, competent command of English. Surely that is not a lot to ask of an English education, but at present we fall very far short of it. Employers are on record as preferring teenage recruits who learnt their English in Poland, Russia or China, because it is easier for everyone to understand their less sloppy diction and to read their better-formed sentences and clearer handwriting. We could go further. Without giving pupils a sound basis in English, how can we attract far more to go on and learn Spanish, German, even Mandarin? As noble Lords will know, one of the proposers of this amendment, the noble Baroness, Lady Coussins, chairs the all-party group on foreign languages.
Among possible objections to our amendment, let me just mention two. First, adding the word “linguistic” may invite further additions—“mathematical”, for example. But language is different, and is genuinely unique. It is the precondition of all else, from the rules of maths to the rules of football. Secondly, it may be objected that the addition of “linguistic” creates a tautology, since it is implicit in “social” and “cultural”. We would disagree. Doubtless some degree of social and cultural development need not depend upon language—even, perhaps, enough for inspectorial hurried box-ticking. But inspectors must in our view be required to pause and address language development as an area requiring their separate and specific consideration. Indeed, so far from being superfluous, we would argue that the omission of the word “linguistic” from the clause should be seen as a glaring oversight, so much do its neighbours “social” and “cultural” depend on it as the faculty by which all other development is both inculcated and expressed.
This brings me to a further and final point in urging this amendment. Clause 40, to repeat, requires that the chief inspector “must consider” how pupils are developing in four different respects:
“spiritual, moral, social and cultural”.
This is a quartet, of course, that is quite familiar in Ofsted-speak. It has been on Ofsted’s agenda for some time. Perhaps the Minister can give us some indication of the success that inspectors have had in grading children according to their development in these four respects. What does the Minister expect the inspector actually to do before ticking, say, the “spiritual” box, thus declaring his satisfaction at the pupil’s spiritual development? Then, when he moves on to the box labelled “moral”, what does he actually do before ticking that all is well with their moral development?
Now, if the next box were labelled “linguistic”, I know—and, more importantly, I know the inspector would know—how a professional assessment in this crucial area would be made. I would have confidence in what a tick meant and know that actual, speedy attention would be given if a tick were withheld.
My point is obvious. Not only is successful development of the language faculty essential for progress in all else that education has to offer, but linguistic development is observable, quantifiable and objectively assessable to a degree that makes the inspectorate’s judgment of critical value.
Baroness Warnock
My Lords, I very strongly support the amendment of the noble Lord, Lord Northbourne, as well as the amendment just spoken to by my noble friend Lord Quirk.
Linguistic deprivation is just as serious as any other form of deprivation that a child can suffer. An enormous amount of linguistic knowledge, practice and efficiency is learnt before the age of two or two and a half years. There are a vast number of children whose parents—or whose single parent, very often—are quite unable to supply the kind of stimulus that children essentially need, and from the deprivation of which they really cannot catch up. How can children start learning to read when they hardly have any vocabulary in the language they are supposed to be reading? It seems to me that before school is the crucial time, but as we have heard the most difficult and most needy children are very likely those who do not take advantage of pre-school provision.
Here I must repeat something that I have said a million times before, which is that I believe that the BBC has a huge responsibility for those children who are at home before school, and are not getting out of their home. The BBC should be providing radio programmes with songs and stories which supply what children’s parents very often cannot supply, namely constant exposure to language. I was also delighted when a noble Lord—I am afraid I cannot remember which—said at an earlier stage that one of the worst things that has ever been invented is the pushchair which faces away from the parent, so that the parent who is pushing the child cannot speak continuously to the child even before the child has any language to respond in.
I think that this is of enormous importance, and should be in the Bill, more so than all the stuff about spirituality and morality. I entirely agree that that can all go, because we cannot measure it anyway. What cannot go is what can be measured, which is the vocabulary of a child and his ability to communicate and respond to other people talking and singing to him.
Baroness O'Neill of Bengarve
My Lords, I strongly endorse these thoughts. We should not set the inspectorate the task of doing the grand and unachievable rather than the humble and achievable. Language delay is a catastrophe for a child. It is all too common. I am not talking about specific language impairments: they are very serious matters, but that is quite a separate issue. Profound language delay is disabling not just at the early pre-school or reception stage, when it can be picked up, but right through a child’s education. Although it is important for children to have moral, spiritual, cultural and social development, without what my noble friend Lord Hennessy has called the chit-chat amendment it is going to be difficult to achieve development in those other areas.
Lord Alton of Liverpool
My Lords, I intend to support my noble friend Lady Flather, but before so doing I would like to support the remarks made my noble friends Lord Quirk and Lord Northbourne. My wife is a speech and language therapist who works with autistic children. Although they fall into the special category that my noble friend Lady O’Neill has just referred to, my wife would emphasise—and I would too, from my own background working in education—that the noble Baroness, Lady Warnock, is right: it is a catastrophe if a child does not have language in place. Earlier today, there was a Question during Question Time about restorative justice. Anyone who goes into any prison and meets some of those who are now in prison because of their participation in the riots earlier this year will know that there is a link with language deficiency and with literacy as well. If we are ever going to get these things right, we will have to spend a lot more time and energy on language, literacy and the early years development that my noble friend Lord Northbourne has made a personal crusade for so long.
I particularly want to speak in favour of the amendment tabled by the noble Baroness, Lady Flather. My reason for doing so is that I drafted the original amendment on community cohesion which was incorporated in the previous education Bill. My noble friend Lord Sutherland and my noble friend the late Lord Dearing were other signatories. We took the amendment to the Government. I personally went to see the noble Lord, Lord Adonis, and I was very pleased when he accepted the amendment, which included that this matter should be inspected by Ofsted. That was put forward 24 hours later, in place of the amendment which we had drafted, as a government amendment, and was accepted in the legislation. I think that the House took the right decision, because it was not singling out one category of schools and saying that they may be a problem with community cohesion; it was saying that all schools have to promote community cohesion. However, that has to be measured, and it is right that it should be measured by Ofsted.
I find it extraordinary that this is being removed at this stage from the legislation. I therefore hope that the Minister can give an undertaking that it will be reviewed. This is too important a question just to leave to one side. That amendment was passed because of concerns that people raised about specific schools where there might be ideological or narrow agendas, and it was to ensure that such things did not happen that this was included in the legislation.
The Lord Bishop of Ripon and Leeds
My Lords, first, I agree with the noble Baroness, Lady Walmsley, in preferring to have well-being specifically in the Bill in addition to achievement. That would be a much more balanced and appropriate way to look at the whole task of Ofsted and what we are looking for in the Bill. Indeed, it might help some of the other contributions made to this debate in terms of the well-being of a child, which would include their linguistic ability and development. But if the noble Baroness is convinced by the Minister’s letter, who am I to dispute that?
My main reason for contributing is to say that I hope that the noble Baroness, Lady Flather, will push Amendment 78 on community cohesion. For many of the reasons put forward by the noble Lord, Lord Alton, this seems to be a key to the whole life and work of our schools, which should be in any Ofsted inspection. One of my tasks which I find most fulfilling and of most value is to be the vice-chair of Leeds City Council’s safer and stronger communities board, which seeks to provide community cohesion over the whole life of the city. A key to that work is the contribution made by schools to community cohesion across Leeds. If we are to continue to affirm and assert the need for social cohesion within our country, it is crucial for schools to be included. People from different backgrounds with different abilities and perspectives need to work together in order to have a cohesive society.
I recognise the point that we must not give Ofsted too many individual tasks to pursue. But this is the only one of those tasks which looks beyond the school gates. It is vital that schools do that. I very much hope that the noble Baroness, Lady Flather, will press her amendment. I perhaps even hope that the Government might accept it as a crucial part of how schools should operate within our culture and society.
Baroness Howe of Idlicote
My Lords, all the proposed amendments are more than worthy of acceptance, whether that is in the Bill, by us all or in guidance to schools and communities. They clearly set the sort of society that we are trying to achieve; that is, the big society, community involvement, or whatever one likes to call it. I agree entirely with the points made by my noble friend Lady Flather in speaking to her amendment. Of them all, it perhaps sums up the whole feeling that the school, and the arrangements of the school in what it sets out to achieve for the children, also involves the community, which is a sort of two-way process.
I should like to make one further point at this stage. When we look at all these additional changes and responsibilities that schools will have to cope with as a result of this Bill when it becomes law, one area that perhaps gets less attention is the role of the school governors. They are being asked to play an increasingly important role—I declare my interest as president of the NGA—on well-being and other issues. Whatever the issues are, these are added responsibilities. If I were to add anything, I would include something about the importance of not just management of the school but the whole way in which it operates under its governors. With that, I hope that we will get a favourable response from the Minister and perhaps even an acceptance of something of what has been said to go in the Bill itself. We shall have to wait and see.
Lord Lucas
My Lords, I very much hope that my noble friend will pay attention to the speeches he has heard on Amendment 78. I well remember the debates that led up to and followed the inspired amendment in the name of the noble Lord, Lord Alton, which got us out of some emotional difficulties. It expressed all our intentions well. This Government realise that measuring schools and setting them objectives has an effect on schools, which is why they introduced the EBacc, which is having an effect. Ofsted looks at community cohesion not because we expect Ofsted to go galumphing all over this territory but so that schools know that attention is being paid to whether they do it or not, and that, therefore, it will come within the list of things that they have to do. The noble Lord, Lord Quirk, made some pretty good fun of the provisions in the Bill about social, moral and cultural development, as if there was a way of measuring these things or a tape measure that could be run over them. But having that in the Bill means schools know that this is something they have to do and that, therefore, they have to give time to it and spend money on it. If schools are not given any mind in these sorts of areas, they will start not doing it in the way that they have been not doing foreign languages. Hence, the need to row back on that with some vigour, which I am delighted my right honourable friend is doing. These things matter and these particular words matter. The noble Baroness, Lady Flather, has my total support. I very much hope that in the Minister’s consideration of what might be done to improve this Bill, she will focus on those two words.
On the other amendments in the group, I support what the noble Lord, Lord Northbourne, is aiming at. It seems to me that we are moving children between two regimes—that of the social services and that of the school, or the family and the school, whichever may apply. In terms of understanding what is going right and what is going wrong, it is important to make a measurement at the point when a child moves from one to the other so that we know whether the problems of literacy are being generated in the community or though a lack of attention in the school. I am not saying that this is the right place to put it but if we are doing value-added in a school, we should take an initial measure at the beginning and not two years in. A lot of value-added goes on in those two years in a good school. We should be doing that. I very much support the spirit of the amendment.
I also support my noble friend Lady Walmsley in her wish to see well-being included. The Prime Minister has been right to support that as a concept of wide application and it really should find its way into something as central as education. I look forward to the speech of my noble friend the Minister.
Lord Elton
My Lords, I had hoped to speak in support of the noble Lord, Lord Northbourne, but I cannot do so because the debate has taken place in my absence. So I rise only to say in a very plaintive way that I left with a list of groupings which made it clear that I had time to attend to other business but having attended to the other business, I find that the business I wished to be here for had already been dispatched. I hope that is not going to become a regular feature of our proceedings because it is exceedingly inconvenient.
Baroness Jones of Whitchurch
My Lords, I have listened carefully to the debate. We have a great deal of sympathy with those noble Lords who fear that Ofsted’s role is diminishing to concentrate on academic achievement and behaviour at the expense of some of the wider social and personal development issues. As has been pointed out, these have an equal status in the classroom and they are sometimes a necessary precursor to the learning process itself. There is also quite rightly some concern that if these issues are not a key part of the Ofsted inspection regime, they will be given diminished status by teachers. I am sure the Minister will say that this is not the intention but we should be realistic about human nature and the pressures that teachers are under to deliver on so many different fronts. The Ofsted report is an essential guide for parents and schools are desperate to score highly on what they perceive to be the core measures of inspection. It is important that these measures are kept in the legislation.
We support the amendment moved by the noble Baroness, Lady Walmsley, which puts children’s well-being at the heart of the school mission. We supported a similar amendment in Grand Committee and we reiterate today that schools should not be simply about academic achievement. Schools should have a responsibility to provide a safe and happy environment where all children can thrive. That should include covering issues such as nutrition, exercise, relationships, respect for each other and tackling low self-esteem. In Committee the Minister, the noble Baroness, Lady Garden, said:
“Ofsted recently commented that well-being will be at the heart of the new framework, because it will require inspectors to consider the full range of experiences for pupils”.—[Official Report, 20/7/11; col. GC 491]
These themes were repeated in the Minister’s letter to my noble friend Lady Hughes. If this is the case and we are all in agreement, I see no reason why the Minister should not accept the amendment moved by the noble Baroness, Lady Walmsley, so that the requirement can appear in the Bill.
In an earlier debate, the noble Lord, Lord Northbourne, made a powerful case for improved early years provision. He has echoed those themes today. He is rightly challenging us to identify the mechanisms that will ensure investment in early years so that every child, when entering school, has a capacity to learn and succeed. Again, these themes were echoed by the noble Lord, Lord Quirk, and other noble Lords. This is particularly significant when we read in the past few days that the Institute for Fiscal Studies calculates a 20 per cent cut in funding of early years provision. We have every sympathy with the position that he is pursuing, although it might be unfair to ask Ofsted to report on how school-ready pupils are on first arrival when the receiving school will not have had much opportunity to influence this. He is in effect making a case for more rigorous independent inspections of early years provision and this we would wholeheartedly support.
Finally, I share the concern of the noble Baroness, Lady Flather, about the removal of social cohesion from the core list of issues to be inspected. She is right to identify that this goes much further than measuring the cultural development of pupils. We are blessed with living in a diverse, multicultural society, but it has its tensions, suspicions and hostilities, and we are not short of volunteers who stoke up conflict at any slight or perceived unfairness. Young people need to understand the roots that have brought us together and the advantages of strong communities living in tolerance. The school’s role in the community and its influence as a community leader cannot be underestimated so I hope to hear more details from the Minister about how this is going to be achieved in the curriculum and measured by Ofsted. In the absence of a convincing explanation, we will support the amendment of the noble Baroness, Lady Flather.
I understand Ofsted’s concern that it is being asked to measure too many aspects of education. I also understand that at times of limited resources, choices have to be made. But this is about getting the balance right. It is about what parents can expect from their children’s education and how we want to shape and nurture the next generation of citizens. I do not think we have the balance right just yet.
Baroness Garden of Frognal
My Lords, the current reporting areas for school inspections of maintained schools and academies have evolved over the years in a piecemeal way with new requirements being bolted on for the best of reasons but without there being any overall consolidation. Over time the arrangements have become crowded, with inspectors having to make numerous judgments and schools feeling that they have to jump through multiple and sometimes overlapping hoops. Clause 40 consolidates and refocuses the arrangements around core issues related to education in its widest sense, covering pupils’ academic and personal development. It specifies four high-level areas that must be reported on; namely, pupils’ achievement, the quality of teaching, leadership and management, and pupils’ behaviour and safety. It requires inspectors, in reporting on these, to consider pupils’ spiritual, moral, social and cultural development and how the school is meeting the needs of the range of pupils. The new approach will mean inspectors spending more time in classrooms, observing teaching, listening to pupils read, and talking to pupils and staff. The space provided in the new framework will mean that inspectors can drill down more effectively into difficult areas. Ofsted has developed, piloted and now published a new draft framework built around these provisions and the proposals have been welcomed by both schools and inspectors. Ofsted is currently training inspectors in the new approach which, subject to the passage of this Bill, will be introduced in January.
The specific terms “well-being” and “community cohesion” in Amendments 77 and 78 are not included in the consolidated provisions set out in Clause 40. But as my noble friend Lady Walmsley pointed out, that does not mean that they are to be absent from the new arrangements. There will be good coverage of these matters but they will be approached in an integrated way, linked to the core areas and underpinning considerations. This comes across clearly in the draft framework documents that Ofsted published at the end of September which were circulated to Peers in the open letter to the noble Baroness, Lady Hughes, on 14 October. For example, the new arrangements will give prominence to aspects such as behaviour, attendance and pupil safety—all of which are fundamental to well-being. Inspectors will spend more time looking at absence and reasons for this and at how the needs of any pupils who are educated partly off site are addressed. The wider safeguarding of pupils remains a key part of the assessment of leadership and management and noble Lords have rightly emphasised the importance of safeguarding. That also looks at how the school is working in partnership with other schools, external agencies and the community to increase the range and quality of learning opportunities for pupils. Inspectors will be considering pupils’ participation in activities to develop their social skills. Inspectors will look at how schools manage safeguarding arrangements, including effective identification of children at risk of harm. They will also conduct case studies looking at the experience of vulnerable pupils, including those with special educational needs, looked-after children or those with mental health needs.
There will also be good coverage of issues related to community cohesion. I can reassure the noble Baroness, Lady Flather, and others who spoke in support of this that inspectors will focus on how well performance gaps are narrowing between different groups of pupils when assessing achievement. They will also look at how teachers ensure that all pupils have equal access and a fair chance to learn in an atmosphere of respect and dignity when assessing behaviour, at how the school helps pupils prepare for life in modern democratic Britain and a global society when addressing leadership, and at the extent to which pupils understand and appreciate the range of different cultures within the school and further afield, as the right reverend Prelate pointed out, as an essential element of preparation for life when considering pupils’ spiritual, moral, social and cultural development. This is in the draft evaluation schedule published by Ofsted which is available to all schools and the public, so I can also reassure my noble friend Lord Lucas that all schools will indeed know about it.
My noble friend Lady Benjamin asked how we would ensure that equalities issues were addressed. I reassure her that equalities are at the heart of the inspection system. Under the teaching limb, inspectors will assess the extent to which the needs of all pupils are being met. Under behaviour and safety, inspectors will look at whether all pupils have an equal and fair chance to thrive and learn. On leadership, they will assess whether there is a broad and balanced curriculum that meets the needs of all pupils. Where schools are not meeting the needs of all groups of pupils, this will be reflected in inspectors’ judgments about the school. In addition, schools of course have duties under the Equality Act.
Amendment 79 would amend the underpinning requirement for inspectors to consider pupils’ spiritual, moral, social and cultural development to add linguistic development. I assure the noble Lord, Lord Quirk, that I agree that linguistic development is highly important. That is reflected both in Ofsted’s new approach and in the early years foundation stage. The starting point for assessment of communication, language and literacy development is the early years foundation stage profile assessment, which sets the standards for learning and development from birth to age five. My noble friend the Minister met the noble Lord recently and shared with him the full detail of the assessment that is made on communication and language. I say for the benefit of the House that the assessment includes checking the extent to which children speak clearly and audibly with confidence and control, and show awareness of the listener. It assesses how they use language to imagine and recreate roles and experiences, and how they use talk to organise, sequence and clarify thinking, ideas, feelings and events. It checks that children hear and say sounds and words in the order in which they occur; that they link sounds to letters, naming and sounding the letters of the alphabet; that they use their phonic knowledge to write simple regular words and make phonetically plausible attempts at more complex words; and that they explore and experiment with sounds, words and text, and retell narratives in the correct sequence, drawing on language patterns of stories.
We have recently consulted on revisions to the early years foundation stage. One proposal that we are looking to take forward is a new assessment for all children at age two. This would include personal, social, and communication and language development. The aim is to identify where children are doing well and where additional support may be necessary. The intention is to introduce this from September next year.
I turn to the new inspection system. In evaluating teaching and pupil achievement, inspectors will draw on the EYFS profile assessment in considering how well pupils develop skills in reading, writing and communication, and the extent to which pupils develop the skills to learn for themselves. Inspectors will listen to children reading, with a particular emphasis on weaker readers, and consider opportunities in the curriculum and through interactions with teachers and other adults for pupils to engage in a range of activities—for example, developing an appreciation of theatre and literature.
As the noble Lord has noted previously, social and cultural development presupposes linguistic development. We do not think that it is necessary to identify linguistic development separately from social and cultural development and, more generally, we do not believe that there is a pressing case to add to the legislation in this respect. The phrase “spiritual, moral, social and cultural development” has been with us since the start of Ofsted inspections in the early 1990s and continues to be just as useful and relevant today. To provide some additional assurance, we have agreed with Ofsted that linguistic development will feature explicitly in the training being provided for all inspectors in the coming weeks. We have asked that this important area be considered within the new framework for initial teaching training, on which Ofsted will shortly consult.
Amendment 76A from the noble Lord, Lord Northbourne, would introduce a fifth core area on which Ofsted would be required to report, covering the extent to which pupils of compulsory school age are “school ready” when they join the school. We have already had a useful debate during the first session about the importance of good parenting and support through the first five years of a child’s development, so I will not repeat the points that were made on this. However, I fully acknowledge that parents and early years providers have an important role to play in preparing children for school.
School inspection is concerned with holding schools to account for performance in educating their pupils. Inspection reports are therefore focused on the extent to which pupils progress and develop and not on reporting information about aspects of pupil intake, but I assure the noble Lord that inspectors will be interested in pupils’ starting points. The evaluation schedule that inspectors will use makes reference to the important assessment that is required to be made by schools under the early years foundation stage profile, the scores that inspectors will check as part of assessing what progress pupils have made at the end of each key stage relative to their starting points. Put simply, inspectors will look at the value that schools add while not lowering their expectations.
I know that the noble Lord is concerned also with what happens in other early years settings, the extent to which they are required to follow the early years foundation stage and how they are held to account. EYFS is mandatory for all early years settings, including reception classes in schools. The EYFS profile is an observational assessment of all children in the summer term of their reception year at school, the academic year in which they turn five. The reception class, of course, is attended by nearly all children. In addition, all children at ages three and four are entitled to 15 hours’ free early years education for 38 weeks a year, as are the most disadvantaged children at age two. For the most vulnerable children in need, we have debated previously the duty on local authorities to consider providing services which meet their needs.
The assessments are undertaken by teachers, supported by evidence gathered during the child’s time in reception year. It is based on practitioners’ ongoing observation and assessments of children’s progress in all six areas of learning and development. Parents are given a written report on their children which reflects the judgments of their child’s teacher based on the evidence that they and others have gathered. The information is used by the parent and the school to understand the child's development needs and to help plan for their future learning.
Data from EYFSP assessments are collected by local authorities, and they provide aggregate data to the department. The department publishes data annually at local authority and national level—these have been sent to the noble Lord. Last week we wrote to the noble Baroness, Lady Howe of Idlicote, detailing the various ways in which we collect information on the early years. We would of course agree with what she said in today’s debate about the importance of school governors in the whole pattern of these developments.
On holding local authorities to account, we are making data available about how children are developing at the end of the early years in each local authority area. We would expect schools and parents to use this to challenge the authority on its performance.
Ofsted inspects all early years providers against the EYFS. Where settings fail to meet the EYFS requirements, inspectors take action, instructing improvements as needed. Where improvements are needed, settings are inspected again, more quickly than they would otherwise be.
Finally, local authorities have a duty to provide information, advice and training to childcare providers in order to raise quality. To support this, the Government provide a substantial funding stream through the early intervention grant to enable local authorities to act more strategically and target investment where it will have the greatest impact, with greater flexibility to respond to local needs and to drive reform.
I hope that the noble Lord will agree that the EYFS profile is the right mechanism to provide the information about school readiness that he is seeking, and that the focus in school inspection should continue to be on the progress that pupils are making and the value added by the school.
The provisions in Clause 40 offer a coherent set of high-level reporting areas that have enabled Ofsted to put together a new approach to inspection that will be clearer for schools and inspectors and drive improvement.
I apologise if I have spoken at some length, but many important points have been raised in this debate. I hope that I have offered reassurance about coverage of well-being, community cohesion and linguistic development within the framework documents, and wider assurances about EYFS and how school readiness is monitored. I hope that, with those reassurances, the noble Lord will feel able to withdraw his amendment.
Lord Lucas
Before my noble friend sits down, will she agree to write to me saying exactly where community cohesion is dealt with in the draft framework document or the evaluation schedule? I must be reading the words wrong, missing them or misunderstanding how they work.
Lord Northbourne
My Lords, if you were setting up a business to manufacture and sell bicycles and you were going to subcontract the construction of the wheels and maybe the bell to another provider, would you not inspect the wheels and the bell when they came in? Would you rely entirely on the provider to give you the inspection that you need to ensure the quality of the pieces that you were bringing in and putting together and on which your life’s work would depend?
The Minister has kindly given us a great deal of detail about what the EYFS does and all the inspections that take place, and it is very exciting that that is happening, but I am looking at it from the point of view of the school in this particular case. I think that the school needs to have an independent assessment to ensure that the input into the school is up to standard; and if it is not, then extra funding perhaps needs to be provided to enable the school to give special support, rather than having to take money away from its educational work in order to have to pay for restorative work to bring children up to speed.
I will read the reply carefully, but I am sorry to say that I do not honestly think that the Minister has covered the point that I tried to address. That may be my fault for not addressing it sufficiently clearly. Under the circumstances, I certainly do not intend to take the matter any further and I beg leave to withdraw the amendment.
Baroness Flather
“( ) the contribution made by the school to community cohesion.”
Baroness Flather
I thank the noble Baroness, Lady Gardner, for her comprehensive statement, but I regret very much that I did not get from it the flavour of community cohesion as I perceive it. I perceive it to be cohesion within the community, not just within the school. The school must promote that by teaching children about the community that they are in.
We now have free schools which will be very different from state schools. They will be free schools, so they will need that particular provision even more. We also have faith schools that will definitely be single faith schools, not schools where half the pupils or two-thirds of the pupils are from other faiths. It is extraordinarily important not only that those schools have responsibility for community cohesion but that Ofsted has the responsibility to check them for it. I am not satisfied that that point has been sufficiently accepted, so I wish to test the opinion of the House.
Baroness Massey of Darwen
“(5C) In reporting under subsection (5), the Chief Inspector’s report must consider the wellbeing of the children in the school and, in particular, must report on—
(a) school policies on bullying and healthy eating;(b) the delivery of citizenship education;(c) the delivery of personal, social and health education, including sex and relationships education; and(d) child protection measures.(5D) In reporting on the matters listed in subsection (5C), the Chief Inspector must take into account the age and stage of development of the pupils.
(5E) The Chief Inspector’s report must also consider—
(a) how the delivery of the matters listed in subsection (5C) is coordinated across the school curriculum and in pastoral care; and(b) how many parents, pupils and members of the wider community are involved in the delivery of the matters listed in subsection (5C).”
Baroness Massey of Darwen
My Lords, Amendment 80 refers again to inspections in schools. It follows seamlessly from the previous discussion. As a former teacher of foreign languages and English, I appreciate the remarks of the noble Lord, Lord Quirk, about linguistics. Of course, community cohesion and safeguarding appear in my amendment. It is focused on the well-being of children; that is surely something that every parent and grandparent wants for their own children, and I speak as both.
The advantage of inspections of any school practice, however frequent, is that they can do two things: they can report on good practice, which can be shared between schools, and they can address poor practice, including teaching weaknesses and the appropriateness of materials. I will come to this shortly.
Let me first summarise the amendment. It is about the chief inspector reporting on school policies on bullying and healthy eating; the delivery of citizenship education; delivery of personal, social and health education including sex and relationship education; and the child protection measures. This should take into account the age of development of pupils, and should involve parents, pupils and members of the wider community. The amendment follows debates that were held last week on exclusion and searching.
Many noble Lords were concerned about a positive ethos being fostered at school. They were concerned about an emphasis on enriching learning experiences in an atmosphere where children can flourish. I believe that schools can help teach children to be good learners, good friends, good parents, and good citizens, and I believe Ofsted could comment on this. I am aware of school inspection guidance. I am aware of self-evaluation schemes. I am aware that every school is not inspected every year, but having well-being included in the inspection guidance would signal that it is important.
As my noble friend Lady Morgan said earlier, the threat of inspection can improve things even if it is several years ahead. Inspections are now on websites so others can see what good examples there are. I talked to an inspector the other day who was full of praise for a school where there was volunteering with senior citizens, and older pupils were helping with sports clubs for younger children. All this was contributing to pupils’ sense of responsibility for others, improving their communication skills and well-being.
I am aware that well-being is a nebulous term, which is why I have tried to divide it into some of the areas that can be inspected. Ofsted is already charged with reporting on schools’ spiritual, moral, social and cultural development. There are many other areas that could be included as part of well-being. I could have included physical education, which encourages collaboration, sharing and team spirit, or music, where singing or playing together enhances harmony and understanding of how separate parts blend into a whole. I could have included literature which, whatever the age of the child, encourages exploration of morals, ethics and behaviour, as well as a love of language. All this is about well-being.
Well-being helps children to learn and improves the outcomes referred to by the noble Lord, Lord Northbourne. Children learn best when they feel secure and valued and have clear boundaries for behaviour. Schools are places where children can learn to respect themselves and others. UNICEF’s Rights Respecting Schools programme—and I declare an interest as a trustee of UNICEF—has been well evaluated and found to have a positive influence on behaviour and learning outcomes.
I turn briefly to the separate parts of the amendment. I know that the Government are very concerned about bullying. Schools should have a clear policy on this and should ensure that it is implemented. Bullying is a destructive act, for whatever reason—appearance, disability, ethnicity or whatever. It is destructive mainly for the bullied but also for the bully themselves.
On school meals, another policy area, we know about the rising tide of obesity. Schools can help by providing and encouraging healthy, nutritious food. I ask the Minister if the National Healthy School Standard will be preserved.
Let me now touch on citizenship as a part of well-being. Children from a very early age can learn about how democracy works. It is partly about how pupils behave in a classroom. Do they listen to each other? Do they help each other and share? Such skills can be learnt and practised at school. Many schools have elected school councils that comment on discipline and school policies. I have seen them working very well in primary schools.
Personal, social and health education—PSHE—is important. It is sometimes called life skills. Parents of pupils want young people to learn about relationships and about health and keeping safe. This should be appropriate to age and stage of development. PSHE will include topics such as diet, smoking, drugs, exercise and saying no to unwanted pressure from adults or other children. It will include teaching resistance to internet dangers, such as pornography or illegal sales. The Government’s concern about sexual consent is an element of this for older pupils.
I met an Ofsted inspector recently who said that PSHE was not taught as a separate lesson anywhere in the curriculum. It was covered across the curriculum and in pastoral care, in assemblies, visits to the school and out-of-school activities. The school ethos was one of respect and co-operation, led by a senior staff group. The staff were aware of the importance of PSHE and a senior teacher co-ordinated it. The inspector said that it was brilliant.
I am aware that there has been a campaign to discredit myself and the noble Baroness, Lady Walmsley, which has made dangerous assumptions about our intentions. I have a letter here from the Christian Institute, circulated to many noble Lords, which states:
“At Report stage there will be votes on amendments to require schools to teach sex education”.
This is untrue. A further letter states:
“Amendment 80 would ratchet up the pressure on schools to teach children about matters which they are simply too young to deal with”.
Again, that is untrue. As I said earlier, a duty of inspection is to ensure that teaching and materials are suitable for the age and stage of the child. My amendment protects children.
I am aware also that some colleagues will have been the subject of a public letter-writing campaign fuelled by the letter that I have just quoted. One lady wrote to someone saying:
“An Education Bill is being forced through Parliament which would result in compulsory sex education for school children from the age of five years”.
Where is this Bill that is being forced through Parliament? Where is the intention? My amendment is about well-being and protecting children. The public have been fed dangerously misleading information, which implies criticism of myself and, to some degree, the noble Baroness, Lady Walmsley. We were not informed that such information was to be sent and it is only by the kindness and concern of other Members of this House that we have sight of it. Incidents such as this letter-writing campaign happen when misinformation is unleashed, and people make what they will of it. It is particularly worrying when a charity is involved.
Never in the time that it has been my honour to serve in your Lordships' House have I known such a sinister and vicious campaign, which has sought to misinform others. Noble Lords will receive hundreds, maybe thousands of letters, taking up their time and energy, and I find this most regrettable. I also deeply regret the fact that it is ironic that the noble Baroness, Lady Walmsley, and myself have been two of the people in this House most concerned for the welfare of children. My own work has included child internet safety and child trafficking. The noble Baroness, Lady Walmsley, has been consistently involved in work on the rights of the child. I am deeply shocked and offended by this attack on my and the noble Baroness’s integrity, and I am very saddened that a colleague on the Benches opposite has also been involved in circulating misinformation to other colleagues. A letter from her states:
“Amendment 80 … would be to encourage the use of the kind of primary school sex education materials which have caused such concern”.
This is simply not true. This amendment safeguards children.
I briefly move to child protection, which includes safeguarding. This concerns us all. We have had horrendous examples of children falling through all the nets that can protect them. Problems can sometimes be picked up in school, whether it is physical or other forms of abuse. But there must be mechanisms in place so that a child in difficulty can be spotted and referred for help. Children can be taught how to protect themselves; they also have a right to protection.
The whole school community—here we have community cohesion again—of parents, school governors, agencies in the community, voluntary sector organisations, welfare agencies and outreach work such as sport or volunteering groups all contribute to well-being. Children can be encouraged to get involved in activities outside school, such as clubs and award schemes. Some sports clubs are actually linked to schools. This also is well-being.
Inspection reports can highlight how well-being is encouraged in schools. Such reports can be shared and others can learn of good practice, and they can pick up shortcomings, as I have said. Well-being is a vital aspect of what goes on in homes, schools and communities, and we know it when we see it. Children are entitled to school policies, to education and protection, which enhance and safeguard their well-being. I beg to move.
Baroness Walmsley
I am grateful to the noble Baroness, Lady Gould of Potternewton, and the noble Lord, Lord Layard, for graciously allowing me to speak next, for obvious reasons. Before I get on to the substance of this amendment, I would like to say a few words about the events that have led up to our debate today. As the noble Baroness, Lady Massey, said, the Christian Institute recently sent out a letter in which it claimed that I would be laying an amendment to make PSHE compulsory. As your Lordships see from the Marshalled List, this is not true. It also claimed, in a subsequent letter, that my fictional amendment, and that of the noble Baroness, Lady Massey, which we are now debating, would force schools to teach five year-olds about sex. That is also not true. There have been wicked insinuations that we would want to do something that would harm children and their innocence. The noble Baroness and I have spent our whole parliamentary lives, much of what went before and a lot of what goes on outside, working to promote the well-being of children, and to suggest that we would harm them is outrageous and very un-Christian.
Baroness Gould of Potternewton
My Lords, my name is on the amendment if your Lordships would do me the courtesy of letting me speak. The value of this amendment is that it brings together the different elements of well-being, the interventions schools can make and the inspectorate regime. As the two previous speakers said, it is a great tragedy that such an important amendment has been usurped in this way, and actually been depicted in a completely false light.
I would like to start by quoting from a head teacher in a school in my home town of Brighton and Hove about the advantage of well-being being taught in schools. She says that,
“well-being is central to effective learning: through our in-depth and evidence-based focus on these areas, our practice has really developed and is clearly having a positive impact on the children”.
That is what this amendment is about, and that view is actually reinforced by the Government’s Healthy Schools toolkit, which says that,
“schools play an important role in supporting the health and well-being of children and young people—and we will make sure that schools have access to evidence of best practice”.
Again, that is what this amendment is calling for. This amendment would be a significant factor in providing the necessary framework to improve outcomes for our young people. Crucially, it ensures that the chief inspector’s report provides the evidence that determines that the outcomes have been achieved; that the school creates an environment of health and well-being; that the teaching is age-appropriate; that the school community has been involved; and that the programme can be sustained by the school.
The well-being of a child underpins the ability of that child to learn, fulfilling their potential, increasing their educational attainment, and improving their life chances. Young people need to be safeguarded against the consequences of risk and the consequences of some of their actions, so they can gain the knowledge and skills they need to be aware, healthy and safe.
The Government in the PSHE review makes all the arguments for the value of PSHE: that there needs to be room in the life of the school for an exploration of wider social issues that contribute to the well-being and engagement of all pupils. It goes on to say that Ofsted stated in 2010 that the weaker areas of provision were sex and relationships, drugs and mental health, and that there was ineffective assessment and tracking of pupils’ progress.
Again this amendment will help to overcome those weaknesses, and it should be seen as a package. For instance, citizenship is not only about the structure of our society and where we all fit in, but also about how we behave in our own communities. It is about tolerance and understanding diversity, and very often it is that lack of understanding that can be the cause of bullying in schools and sexual harassment—the latter a subject that many schools fail to recognise. Unwanted sexual contact is often a specific form of abuse that girls suffer routinely, and it really needs to be monitored.
This brings me to PSHE and SRE. The commitment by the Government to teaching sexual consent has to be welcomed, but it cannot be dissociated from the questions of how to avoid risk and the dangers of alcohol and drug-taking, which require specific education that gives young people self-esteem and the confidence to be in control. Yet self-esteem so often relates to image. We have to empower young people to be media-literate and to be able to cope with and challenge the bombardment of inappropriate images which often create bad eating habits.
To be effective, the interrelationship requires a level of co-ordination across the school to have a real impact on the well-being of the child. Health and well-being should be supported by the whole school community, with a well-being school group whose membership should include every aspect of the school: teachers, governors, students, the school nurse, the school cook, parents and carers. We can then ensure high-quality Ofsted-inspected lessons that range from personal finance to awareness of and sensitivity to diverse faiths and cultural beliefs, understanding discrimination, the wrongness of prejudice and bullying, the consequences of risky sex, drugs and alcohol misuse, and the importance of staying healthy. I genuinely believe that not to do so is failing this generation of children and young people. The Government, quite rightly, want young people to be responsible members of society. That can be achieved if they are prepared to provide the necessary framework to make it happen. This amendment is that framework.
Lord Layard
My Lords, this is a most important amendment because when surveys are done asking parents what they want most from a school, the majority say it is that their children should be happy. If this is so, it should surely be a major objective for our schools—it is as simple as that. Yet the existing pressures on our schools are in a very different direction and we are in danger of turning our schools into nothing much more than exam factories. We must surely do something drastic to reassert the importance of the development of character and of the personal well-being of children within the school. This is a matter not of either/or but of both/and: exams and academic achievement are extremely important, but so too is well-being.
On top of that, as the noble Baroness, Lady Walmsley, pointed out earlier, there is very strong evidence that happier children do better in terms of academic achievement. How can we get the rebalancing? I would be surprised if there were anybody in this House who did not believe that some rebalancing was needed in the objectives of our schools. I assume that we all feel that. The only way we can do that is by incentives, and the reality is that schools do what they think Ofsted wants them to do—it is as simple as that. Surely, Ofsted should be reporting on the ways in which schools are promoting the well-being of the pupils as well as the other objectives on which they already report. Should they not be reporting on what parents want for their children? If this is one of the things that parents most want for their children, if should surely be a major feature of Ofsted’s reports. Parents want their children to develop as rounded people who are learning not just how to earn a living but how to live.
In this year of youth riots, I find it extraordinary that the Government cannot add pupil well-being to the priorities for Ofsted in Clause 40. We have been told of a reassuring letter from the Secretary of State, but he is just one Secretary of State. We are debating legislation, and it is not enough to have that reassuring letter; it has to be in the Bill. If it cannot be within Clause 40, which apparently it cannot, I urge the Government to find some way of having this ancillary sanction that strengthens the rebalancing in the direction in which I think all your Lordships would like to see movement.
Lord Hylton
My Lords, after four speeches in favour of Amendment 80, the amendment still appears both overprescriptive and unnecessary. I say “unnecessary” in the light of the proposed new subsection (5B)(a) to the 2005 Act, which appears at the top of page 37 of the Bill. It lists,
“spiritual, moral, social and cultural development of pupils”.
As if that were not enough, proposed new subsection (5B)(b) talks about,
“the needs of the range of pupils”,
in the school. In addition, the chief inspector and all the other Ofsted inspectors will have to take account of the guidance already issued by the Secretary of State in July 2000. Finally, if this amendment were to be accepted, it would seem to fly completely in the face of the policy of localism quite rightly adopted by this Government.
The Lord Bishop of Ripon and Leeds
My Lords, I speak with a certain degree of trepidation, not least because in one of the briefings that I received about tonight’s debate there was the suggestion that Bishops might like to keep their heads down on this amendment. I have no intention of doing that and while I have no responsibility for the Christian Institute, I want to apologise for any errors or false accusations made in the name of Christianity. I also want to affirm, as clearly as I possibly can, the enormous contributions made by the noble Baronesses, Lady Massey and Lady Walmsley, to the interests of children in successive debates within this House. I am grateful for all that they have done in the cause of children here.
Perhaps I might ask the Government Front Bench whether they would affirm, in summarising, that nothing in Clause 40 or in the noble Baroness’s amendment could possibly alter the law so as to make sex education compulsory for anyone, whether that child is five or at any other age—and that if somebody were to desire that, it would involve new statutory provision and a quite separate procedure to that which we are involved with today.
That said, I welcome and have considerable sympathy for the propositions which the noble Baroness, Lady Massey, has put before us. I am particularly concerned with bullying. It seems to me that although it is inevitably very difficult to get any sort of figures in this area, bullying is not obviously decreasing within our schools. That is one reason why I was so enthusiastic a few moments ago to affirm the importance of social cohesion, and why I am grateful to the Government for the way in which they have continued to stress social cohesion—even if they are not prepared to have it in the Bill. Bullying can be extraordinarily insidious in the life of a school. I have been involved in enough instances and discussions, previously as a governor and with some responsibility for schools within my own patch, to know how dangerous bullying can be and what a need there is within schools, which on the whole do an excellent job in seeking to ensure that bullying does not happen. A number of times this afternoon, however, we have spoken of the way in which things can develop in a school, without anyone intending them to and sometimes without people noticing. I hope that the framework that has been referred to on a number of occasions makes it very clear that Ofsted inspectors need to be alert to the possibility that bullying is developing within a school.
I welcome the stress here on personal, social and health education. This is crucial to the development of young people, whether it is done formally, through PSHE classes, or through the whole ethos and being of the school, in the way that the noble Baroness, Lady Massey, described earlier. I, too, bring examples of PSHE being integral to the whole life of the school, so that through assembly, through behaviour in the playground and through the whole way in which staff, governors and students operate and relate to each other in the school, PSHE is continually invoked and spread among the members of the school.
I am pleased that the reference to PSHE in the amendment in the name of the noble Baroness, Lady Massey, stresses the need for it to be appropriate to the age and stage of development of pupils. The noble Baroness, Lady Walmsley, also made that point strongly. If we were to pass this amendment, that would be one way of indicating that we believe that it is part of the task of schools, therefore of Ofsted, to deal with inappropriate sex education literature in the case of young children. I sympathise with the view that we are getting an overprescriptive, long list for Ofsted through the amendments we are exploring. That may be so, but these four areas are crucial to the life of schools and I trust that, whether or not we go with this amendment, they will all be part of the work of Ofsted and, more importantly, of the work of all the schools in our country.
Lord Eden of Winton
My Lords, the speech by the noble Baroness in moving the amendment gave much reassurance to many in this place who may have been overwhelmed by some of the correspondence that we have been receiving. I am extremely sorry that both she and the noble Baroness, Lady Walmsley, have been subject to abuse on the grounds that they have been apparently promoting activities in schools, in the teaching of the classroom, which have no place there, or should not be there. The fact that we have been receiving so many letters is an indication of the widespread distress that has come about as a result of what has been said. Therefore, I hope that the Minister, in replying to the debate, will make certain matters very clear indeed. What needs to be made very straightforwardly clear is that there is no intention at all of forcing the teaching of sex education in primary schools for children of the age of five upwards. That would be very wrong indeed. Having seen some of the material that has been put about that is apparently available in schools, I can say that it is totally inappropriate for young children.
The trouble with teachers, or well wishers, trying to embrace a subject of such sensitivity is that they become too explicit and nothing is left to any imagination at all. Worse still, in some of the documentation that I have seen, children are actually encouraged to experiment and to find out what they might enjoy. That is insane. We really cannot tolerate that sort of thing and I hope that my noble friend will make it abundantly clear that this is something that he and his colleagues in Government equally will not tolerate. I have had many years of being able to observe children in school, having been the owner, a long time ago, of a private preparatory school, and I know that in some cases—very rarely—a child is very susceptible and vulnerable and open to all matters of persuasion and influence. However, the majority—I can say this with some certainty—are not.
Children, small children in particular, are extraordinarily resilient and they have a facility to bypass the sorts of issues and experiences that trouble older people. They can absorb them. They are, after all, at an early age, on a journey on a voyage of discovery. They are learning something new every day, they see things every day that are either exciting or alarming and they can overcome issues of distress and anxiety very quickly, on the whole. I generalise, I know; of course, there are exceptions. I very much hope, therefore, that we will not try to force feed sex education to children in our schools, because that would be totally wrong and I know from what has been said that neither the noble Baroness, Lady Walmsley, nor the noble Baroness, Lady Massey, have any intention of doing that. In fact, I find their amendment wholly unexceptional, albeit I do not think it is right to have it in the Bill. The inspectors, as has been said, should not have all this detailed material put in front of them; there are issues that need to be taken into account, but I do not think that it should be in legislation. However, I find their objective in stating these various points to be totally praiseworthy and I thank them very much for having brought these issues to the attention of this House.
Lord Hill of Oareford
My Lords, it may be for the convenience of the House to be clear—since I know that many noble Lords want to speak, since I do not want any hares, or anything else, to get running, and since we should debate this amendment on its merits, as the noble Baroness, Lady Massey, said at the beginning—that the Government do not have any proposals to bring forward or change any legislation in the context of sex education. I hope that that will help to speed up our debate.
Baroness Howarth of Breckland
My Lords, I want to engage in a discussion about the actual amendment and the issues that the noble Baroness, Lady Massey, more broadly raises, rather than getting into a debate that we said we were not going to have about sex education for the under-fives. I support the thrust of this amendment, in that it is about the kind of ethos that we want our children to be brought up in. I know that some noble Lords think that it is overprescriptive and that there are other ways of getting this into the regulations, the legislation or the way that Ofsted inspects, but it is crucial that this ethos is through schools.
Noble Lords will know that I spent many years setting up and establishing Childline. I spent the years I was not doing that working with children who are severely deprived or have been seriously sexually abused. I will come to that in a moment. These children are not a small minority; there is quite a sizable group of children who do not have the benefit of good, middle-class families—indeed, some families that are middle class have extraordinary difficulties, as any parent who has faced having children who are into drug or alcohol abuse will know. The one important issue for all these children is that the school can make a difference.
I am involved with a group of children at the moment who have all had extraordinarily difficult backgrounds. They have been before the court either because their parents are splitting up or because they have come into care. The one thing that has made a difference to those children is their school. They are all doing well. They have the sort of starred grades at GCSE that I could only have dreamt of. They are doing well because their schools have focused on their well-being.
Baroness O'Cathain
My Lords, I wish to speak against the amendment for two reasons. First, I am concerned that, as has already been mentioned, it will add to the range of issues that already exist for assessment by school inspectors. In Clause 40, proposed new subsection (5A) indicates that Ofsted must focus on,
“the achievement of pupils at the school”,
and so on. I will not read it because we do not have the time but I refer to new paragraphs (a), (b), (c) and (d). The noble Lord, Lord Hylton, drew our attention to the fact that Ofsted must also consider the overarching framework, encompassing,
“the spiritual, moral, social and cultural development of pupils at the school”.
The same proposed new subsection also expects schools to provide for a,
“range of pupils at the school, and in particular … pupils who have a disability … and … pupils who have special educational needs”.
That is all in the Bill. It is all good and I am sure nobody would disagree with any of it.
My second reason for opposing the amendment is that, according to the amendment, it would require Ofsted to assess sex and relationships education in every state primary school. This is strange because, until now, primary schools have not been required to teach sex and relationships education. It is not a statutory national curriculum subject for primary schools. However, the amendment refers to all state schools, which encompasses primary schools.
I have a seriously worrying concern. Even now local councils and other public bodies are promoting wholly unsuitable resources for primary schoolchildren. At least, I take it that they are primary schoolchildren because the materials say that they are suitable from the age of five and a half. To my mind, that means primary schoolchildren. These materials are often recommended by the Sex Education Forum. Many noble Lords have already said that they have seen excerpts from this material. I have received e-mails reporting that where such material has been used, the children have been traumatised. Amendment 80 does not directly make sex and relationships education a national curriculum subject; it takes a different approach. Instead, it requires Ofsted inspectors to report on the delivery of PSHE, including sex and relationships education.
The amendment will apply unfair pressure to primary schools. Conscientious teachers and governors may feel under pressure to teach sex education when they would otherwise judge that it was not in the interests of their pupils. Primary schools will obviously fear being marked down in their Ofsted report if they are not using materials recommended by influential bodies such as the Sex Education Forum. How can they know—
Baroness O'Cathain
Please let me finish my argument. How can they know what view a particular inspector will take? The amendment refers to assessing,
“the age and stage of development of the pupils”,
but is that practical for Ofsted in this contentious area? With everything else that is involved in an inspection, how can inspectors closely examine the sex education resources of any individual school? At present, local school governors and head teachers are responsible for making such decisions; they should be allowed to continue to do so.
I note that Amendment 80 would require Ofsted to report on how many parents are involved in the delivery of sex and relationships education but this is not the same as consulting parents as a whole. We genuinely need to empower parents. The government guidance issued in 2000 strongly advocates consultation with parents, yet all too often this does not occur. Yesterday there was a debate in the other place, in Westminster Hall; I recommend reading Commons Hansard, cols. 40 to 41WH, in which a lot of disquiet is expressed about this. Parents are busy people and trust schools to get on with teaching. However, many of them are unfamiliar with the sort of sex education resources being used. They need to be given a legal right to be consulted and to view resources in advance. This should not just be in guidance—it should be a legal right. In the mean time, this amendment is definitely a step in the wrong direction.
Baroness Massey of Darwen
Could I make two comments? First, would the noble Baroness agree that school governors have a significant role in overseeing teaching materials? Secondly, would she also agree that school inspections would protect children and prevent the materials that she describes getting into and being used in schools? That is the purpose of my amendment.
Baroness O'Cathain
I am very glad that the noble Baroness has said that. On the first point, I know quite a few school governors who will not have the time to look at these things in depth, so I am not sure that we could guarantee that some of these materials will not pass them by. On the second point, we know how infrequently Ofsted carries out the inspections in some of these areas so I would not want to leave it to that. There should be a legal requirement for parents to be able to see those materials.
Lord Clarke of Hampstead
My Lords, I hope that, at this late hour, the Government will firmly reject this amendment. I have no reason to quarrel with the integrity of the people who have proposed it, some of whom I have known for many years. I believe that they are blessed with the intelligence to put forward what they think is the right thing. Like wider roads, stronger beer, motherhood and apple pie, you could say snap to most of the amendment. What has been said about bullying and civic learning is absolutely clear. However, I have been here long enough to know that when someone says that something should be included in a Bill you have to be careful.
The amendment is actually saying that a school inspector “must”, not “could” look at the type of school and what its policies are. That is where we have a problem. There will be some schools that do not have a policy on the subject that has exercised us for most of this debate. Most schools make up their minds through the governors and parents, or through whatever consultation they have, and they make their decisions. If the amendment is carried, the chief inspector must ask those schools the questions and will have to report on them. In most areas the report would be clear.
The right reverend Prelate the Bishop of Ripon and Leeds referred to the Government’s intention. However, it was only two days ago that the Minister was able to tell the House, at col. 543 of the Official Report, that the Government had no intention of changing the policy on sex education. I thought to myself, “That is good. There is no need for the proposed new paragraph because we have heard a clear statement from the Government”. I welcomed that at the time.
I am not influenced by hundreds of letters. I was not influenced by them on fox hunting and all the other issues that attract a deluge of correspondence. I admit that I did not receive much teaching because I left school at the age of 14, but I was taught to think for myself. It is wrong to put words in the Bill that could force people in certain circumstances to do things that they do not want to do. Therefore, in the event of a Division, I shall vote against the amendment—although reluctantly, because I recognise the integrity of those who are proposing it.
Lord Lingfield
My Lords, all of us sympathise with the noble Baroness, Lady Massey, regarding the appalling letters she and others of us have received from time to time and which completely miss the point of this debate. I do not think that any Member of your Lordships' House would think that a school ought not to have clear policies on bullying, the aspects of life dealt with in citizenship education, personal social, health and sex education, and even healthy eating. However, where I part company with the noble Baroness is that if these issues are a matter for close inspection by Ofsted, then the global views of that organisation—it has global views, although that may alter—become written in stone. Once these policies are apparent, schools often are scared to deviate in any way from what they come to believe is the letter of the law. The grades given by Ofsted to schools are very talismanic. The school is outstanding, satisfactory or merely good. Heads and governors become hugely anxious that an Ofsted report will say something detrimental and, if the buzz from other local schools already inspected is that it is important to tick the right boxes by adopting certain policies on sex education, certain aspects of discipline, citizenship education or even on the consumption of hamburgers and chips, sadly they will have those policies. We have seen far too much evidence of that.
We should leave these decisions entirely to individual schools. We should not want to take from the hands of heads, teachers and governors the right to make professional decisions in these areas of school life. Of course, every one of the items mentioned by the noble Baroness, Lady Massey, in her amendment is absolutely important, but we should trust the staff on the spot to deal with them and not impose upon the staff, as inevitably this amendment would, an Ofsted view—and that, sadly, means a government view—about these matters.
Professional teachers and their governors are best equipped to know of the appropriateness of, say, certain aspects of sex education, certain specifics for bullying, and dietary needs in their own schools, and it is the whole thrust of the coalition's schools policy that schools should be free to take the decisions that the situation demands. I ought to add that Ofsted entirely lost its way by trying to inspect—and, therefore, inevitably setting into concrete—so many areas of school life, with something like two dozen criteria. I welcome the Government’s new view that schools should concentrate broadly on teaching, learning, discipline and leadership. If you get those right, everything else falls into place.
I should like to leave noble Lords with one thought. A paragraph or two that is passed by your Lordships can quite literally lead to 1,000 pages of bumph for an individual school. That is true. It is not necessary for Ofsted to inspect all these matters. I therefore oppose the amendment.
Baroness Northover
My Lords, I remind noble Lords that we are now on Report. We should not be exploring in enormous detail issues that were looked at in Committee. We should have just the distillation of where we have got to on this matter. I also remind noble Lords that we have some very important business to consider following this debate. I therefore hope that we can expedite things and reach a conclusion.
Perhaps I may distil a parent’s view on the particular aspect of the amendment on which your Lordships have chosen to concentrate. I think that the parent has the best idea of when a child is ready for the various stages of his or her understanding of sex, and the best way is to answer truthfully every question when it is asked and at the age at which it is asked—sometimes wrapped up a little. I do think—and your Lordships have generally expressed a view—that to teach advanced sex, if one may call it that, in primary school is entirely inappropriate. I add my name to the list of those who admire greatly what the noble Baroness, Lady Massey, has done in Parliament for young people over many years, and I have been rather feeble in supporting her. However, what she was not asked to do was a demonstration of the material that is not only available but recommended to be used in classrooms; and recommended not only by non-government bodies but by local authorities, sometimes at an age less even than that recommended by the publisher. It was hair-raising. I hope your Lordships will understand that for that reason anything that tends to open the door to that is to be resisted.
The noble Lord, Lord Clarke of Hampstead, put it succinctly—he distilled it. He said that the inference in paragraph (c) of proposed new subsection (5C) is that this subject should be taught in all schools. It is for that reason and with great reluctance that I oppose the amendment. Its intention is good and if it could be tweaked at Third Reading to exclude that inference, I would be friendly to it.
Baroness Crawley
My Lords, I rise in support of my noble friends in their amendment and acknowledge their tenacity in pursuing these important and sensitive matters. It is a welcome opportunity for me to leave the substitutes’ bench, even for a brief period, in the passage of the Bill and to take part in this significant debate. A colleague said that timely substitution can often win matches. However, looking at our recent voting form, I am not going to hold out too much hope.
In Amendment 80, my noble friends Lady Massey of Darwen, Lady Gould of Potternewton and Lord Layard have called on the chief inspector to report on school policies on bullying, healthy eating, the delivery of citizenship education and the delivery of personal, social and health education, including sex and relationships education. In proposed new subsection (5D) in their amendment, they say:
“In reporting on the matters listed … the Chief Inspector must take into account the age and stage of development of the pupils”.
That is very important for us to remember in the context of our debate tonight. There is no question in the amendment of any compulsion for inappropriately aged children.
Education for Life, with a capital “L”, is crucial in our modern, complex, choice-led, resource-scarce society, but I know that the force of my noble friends’ arguments will not be lost on the Minister, who carries his brief with enthusiasm and compassion. To quote the noble Baroness, Lady Walmsley, in Committee:
“Children may not go on to get first-class degrees but they will all have families, relationships, friends, personal finances, responsibility for their own health and safety … and jobs”.—[Official Report, 13/7/11; col. GC 344.]
Also in Committee, my noble friend Lord Layard quoted, at cols. GC 349 and 350, some revealing international evidence that personal, social and health education assisted children in their academic achievements. He said that it was not a case of either life skills or academic attainment but of both. Many noble Lords around the House are convinced by evidence such as this, by what parents themselves have said about PSHE and by the experience of PSHE in schools over recent years. I know that there has been a patchy nature to some of that teaching. One reason why my noble friends have tabled this amendment is to ensure that there is monitoring by Ofsted of the quality of that teaching and of the kind of training that must be given to those who deliver PSHE, whether it be generically through the school or as a separate subject.
Although we on these Benches welcome the end-of-consultation date for the department’s internal review of PSHE—which I believe is 30 November, as elicited through an Oral Question from my noble friend Lady Gould of Potternewton—we still have a slight suspicion that this review set out to be one that featured a certain acreage of long grass. In that context, I ask the Minister why PSHE was removed entirely from the original independent review.
We do not have a lot of time tonight. I want to say simply that we have a generation of children who face enormous and complex problems when it comes to sexual and personal health pressures. These are young people who come up against enormous problems, such as HIV infection, drug abuse, teenage pregnancy, alcohol abuse, obesity and smoking—the list goes on. It cannot be the role of a responsible Government overseeing education to allow chance, discretion or benign neglect to be the official response to the bewildering array of problems that face young people. I was as shocked as I am sure many noble Lords were at the recent evidence of sexual cyberbullying and the increasing amount of cyberbullying that goes on, particularly of young girls. It is imperative that we give young girls all possible confidence to resist such pressure. How do we do that? We do it by arming them with clear and rational argument. As the noble Baroness, Lady Howarth, said, schools can make a difference. We also need to give young boys—here, I look towards the noble Lord, Lord Northbourne, and the work that he does—the confidence to act in a responsible way and to resist their own peer pressure. This is where PSHE comes in. The correct teaching of PSHE, with proper training, can only be a good thing for the next generation.
Lord Hill of Oareford
My Lords, I start by welcoming the noble Baroness, Lady Crawley, from the substitutes’ bench. As I am sure that she knows far better than I do, that is not all it is cracked up to be. There have been many times this afternoon when I would very happily have been sitting on the substitutes’ bench. However, it is very nice to hear from her in such an important debate.
We have discussed these broad issues many times in this House, even in my short time here, but I think that we have covered the ground well again today with a great deal of thought and passion. It has been a good discussion, in which I hope we have managed to clear the air on some issues.
On the amendment, as we heard in the debate on the previous group, Clause 40 consolidates and refocuses the arrangements around core issues related to education in its widest sense, covering academic and personal development. The point has been well made that education is not solely about academic achievement but is about everything that makes children develop and, indeed, be happy. On the specific issue of children being happy—a point raised by the noble Lord, Lord Layard—inspectors seek the views of parents and children about the school, and in both cases views are sought on whether children are happy in school. It is right that that should be so, and this will continue to feature as a question to parents and children. I believe it is also the first question that is put to parents in Ofsted’s new online questionnaire, which gathers parents’ views outside inspections. I agree that it is important that those points are picked up.
The amendment moved by the noble Baroness, Lady Massey, seeks to add well-being to the main reporting areas for school inspections, including some specific aspects of well-being, which she set out for us. As I hope my noble friend made clear in her response to Amendment 77, although well-being is not included in the consolidated provisions set out in Clause 40, that does not mean that it is absent from the new arrangements. Indeed, we argue that having behaviour and safety as one of the four core areas—areas that we are trying to slim down so that there is more attention on a smaller number—shows how important well-being will be within the new arrangements. Child protection measures, which we have also talked about, will be a key element of the assessment of the effectiveness of leadership and management of a school. Safeguarding will be picked up there as well as through thematic surveys, as we discussed on the earlier group.
The reason that the Government are keen to change the focus of inspection is illustrated by Ofsted’s inspection findings for 2009-10. In that year, teaching was judged outstanding in only 5 per cent of primary schools and 4 per cent of secondary schools. That is one reason why we are keen to make sure that inspection focuses on teaching quality. Schools that perform strongly in terms of pupil achievement also do well on wider aspects of well-being. However, the reverse is not always the case. For example, last year all primary schools that were judged outstanding for achievement were either good or outstanding in terms of healthy lifestyles, but for primary schools that were inadequate in terms of achievement, over half were good or outstanding on healthy lifestyles.
I stress that inspection will focus on those key aspects of well-being. For example, inspectors will be checking to ensure that all pupils have an equal and fair chance to thrive and learn in an atmosphere of respect and dignity. Inspectors will consider pupils’ behaviour towards and respect for other young people and adults, including freedom from bullying, and will also consider pupils’ ability to assess and manage risk appropriately and keep themselves safe, including from some of the risks that we have discussed—those associated with new technology, substance misuse, knives and gangs, and those associated with relationships, including sexual relationships. This is set out specifically in the new evaluation schedule that inspectors will follow.
Baroness Massey of Darwen
My Lords, I thank the Minister for those words. As ever, he is sensible, courteous, wise and thorough. I know that he is well aware of the importance of these issues. Perhaps, yet again, he could meet a small group of us informally to talk about how well-being is to be delivered in a guaranteed way. I am happy to organise a group to do that.
We have had a very interesting, wise and dedicated debate on this issue, most of which I agree with and some of which I do not, but that is fine. I want to raise one or two issues. There is the issue raised by the noble Baroness, Lady Morgan, not in this debate but in the one before: if something is to be inspected, schools will be aware of it and will look at it. I have enormous respect for the noble Lord, Lord Lingfield. I was the person who welcomed him to this House, in very difficult circumstances—he knows what I mean. He made some very astute comments. Schools have to teach some things and I think that this should be one of them.
I say to the noble Lord, Lord Elton, for whom I have enormous respect, that parents sometimes feel somewhat uneasy about dealing with issues of sexual relations. He is nodding, so he must know, and I think schools can back that up. I am all for parental consultation and involvement, but I dealt with this myself when I was teaching and I agree that sometimes parents have difficulties dealing with the issue and children have difficulty talking to their parents about it. Let us leave it at that.
The quality of teaching materials and the fact that they are age-appropriate is important, as my noble friend Lady Crawley said. I have no intention of calling a Division at this time of night, when there is other important business to come. However, while I am sorry to end on a sour note, the noble Baroness, Lady Walmsley, made a very impassioned and indignant speech and I, like her, still feel indignant and distressed by letter-writing campaigns that impute things to us that we never intended. I beg leave to withdraw the amendment.
Baroness Garden of Frognal
My Lords, I beg to move that further consideration on Report be now adjourned for the day. The usual channels have agreed that Report stage should continue on Tuesday 1 November and not later tonight.
Community Legal Service (Funding) (Amendment No. 2) Order 2011
(13 years ago)
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Lord Bach
That a Humble Address be presented to Her Majesty praying that the Community Legal Service (Funding) (Amendment No. 2) Order 2011 (SI 2011/2066), laid before the House on 24 August, be annulled, on the grounds that the reduction in civil standard and graduated fees for Legal Help and Help at Court will seriously undermine access to justice because it threatens the financial viability of already hard-pressed community legal practitioners who carry out an essential service to those least able to afford it, including the most vulnerable in our society.
Lord Bach
My Lords, in moving this Motion, I make it crystal clear that we on this side believe that there must be cuts to the legal aid budget. Over the past 30 years or so, perhaps until a few years ago, the amount spent on legal aid went up a great deal, year on year, and that was particularly true in the criminal legal aid field until the amount spent on criminal legal aid, compared with civil legal aid, was totally out of kilter.
As part of the necessary cuts, we, when in Government, took action to reduce legal aid spending and I do not apologise for that. Almost the last act we took in government, before the general election of 2010 was called, was to cut criminal legal aid advocates’ fees in the higher courts over a three-year period. It was not popular but it was necessary. Incidentally, that gives the lie to the present Government’s claim that we, the previous Government, were not prepared to tackle the deficit. If we had won that election, we would have cut further. My personal view is that there are large savings indeed to be made in our whole criminal justice system. In any event, we had published a White Paper, Restructuring the Delivery of Criminal Defence Services, which, if followed through, would have made considerable savings.
However, there are two considerable differences that exist between our proposals and those of the Government. First, Her Majesty’s Government are intent on cutting legal aid much too far and much too fast. They have not given any—certainly not enough—thought to the consequences of their policies, either in human or in financial terms. That leads me on to my second point. One of the areas in which they have chosen to axe legal aid, take it out of scope altogether and make savings in fees, is precisely the wrong area of law. They intend to remove welfare benefits advice and representation at all levels, including up to the Supreme Court; employment advice; much housing advice and even more debt advice; and some community care advice and education advice—in other words, advice to the poor and the vulnerable. They intend to save the sum of about £50 million per year through those cuts. Today, of course, we are not strictly debating the rights and wrongs of such an approach, but we shall be able to do that in short order when the Bill, currently in another place, comes to this House.
Tonight we are debating an order that in one fell swoop cuts 10 per cent from all—I repeat, all—civil fees, including family fees. To describe it as a rough and ready figure would be a gross understatement. It is a crude and ill thought-out measure with no evidential justification whatever. Although I am particularly concerned with the 10 per cent cuts to social welfare and community lawyers, the lowest paid of all the lawyers who do civil and family work, I acknowledge the powerful case put forward by other civil and family lawyers to me as a result of my Motion being tabled. I thank all those who have made their case. There may well be champions for them tonight, although I know that because of the lateness of the hour, various noble Lords whose contributions would have been very welcome on all sides have not been able to stay.
Interestingly, there are no comparable cuts on the criminal side—for example, in the sister order that accompanies this particular statutory instrument. This shows that the Government are quite ruthless when it comes to civil and family legal aid and as soft as butter when it comes to criminal legal aid. It is as though they have no sense at all of the fantastic value social welfare law has in our society, allowing, at comparatively cheap costs, early legal advice for many of those who could not possibly afford to get it, with the result that issues are solved and the courts are not full of hopeless cases and litigants in person. Noble Lords will perhaps have seen the concern of some Justices of the Supreme Court in the newspapers this morning. For some reason, the Government are determined to decimate social welfare law and drive out those hard-working, dedicated and, I would argue, poorly paid lawyers who practise in this field.
Who are these lawyers? They are often the not-for-profit sector; they work in law centres, citizens advice bureaux and other advice centres. Some are solicitors and barristers in private practice. Many, wherever they come from, sacrifice more lucrative legal careers in order to practise this type of law. If they do not practise it, who will?
Their fees are fixed fees brought in in October 2007 and raised by 2 per cent in 2008 but untouched since then. They are not overgenerous. We as a Government brought in the fixed fee and it undoubtedly caused problems in itself. We set up a study with many experts from this area of law to look into those problems, and we produced a document entitled a Study of Legal Advice at Local Level in order to attempt to tackle them. We as a Government refused at any time, and particularly during the recession, to cut legal aid spending on social welfare law. We increased it significantly from £151 million in 2007-08 to £208.4 million in our last year, 2009-10. We increased eligibility by 5 per cent, bringing in 750,000 more people, and increased the number of new matter starts. I am proud of what we did.
The proposed fees are set out in Table 1 of the order, to be found on page 4. These cases often take many hours’ work. They involve face-to-face contact. Often the lawyer, having seen the client, has to speak to third parties in order to resolve the problem. They are by no stretch of the imagination well paid. There is an exceptional threshold, but a case has to be very long indeed and very complicated to come into that category.
There are currently 52 law centres in England and Wales. They are not profit-making. They have had to make efficiency savings with the introduction of the fixed-fee system. Many rely heavily for the excellent work that they do on legal aid. Eight generate over 70 per cent of their income through legal aid contracts. None of these law centres has a 10 per cent surplus and at present they monitor cash flow on a weekly basis. There is no fat to them at all. All eight are at risk of closure. Four centres are particularly vulnerable, two in London and two outside the capital. Eight hundred thousand pounds is immediately to be taken from law centres’ funding overall by the 10 per cent cut. In the medium term, the combined effect of the 10 per cent cut plus the proposed scope cuts is that £8 million out of the £9 million in legal aid contracts that law centres enjoy will disappear. Eighteen law centres out of 52 will just not be viable—it may be more. Where, I ask, will people go to in order to get their legal issues sorted out?
I could make the same points about CABs, the citizens advice bureaux, which have a very high reputation, as do law centres, in Parliament and outside. Obviously CABs do not rely so heavily on legal aid, but many still rely on it, and at a time when local authority funding is, frankly, declining, CABs will also close as a consequence of this order. Noble Lords will remember that a few months ago there was news from Birmingham about the state of CABs in Britain’s second largest city.
Private sector firms that do this work also work on the same legal aid rates. All day long I have been receiving e-mails from solicitors who do this work. Sometimes, of course, other parts of these firms subsidise the social welfare law part of a firm, but I have been told that the amount of money that legal aid lawyers of many years’ standing get per year would make an extremely interesting database. It is much less, of course, than that of a solicitor who does not do that work and compares extremely badly with other professionals—very badly indeed. Those who practise in this field and who do this absolutely invaluable work do not expect enormous rewards, but nor do they expect to be penalised even further.
I end with the story of Law For All. Law for All was in west London, and many noble Lords may have heard of it. It was quite a large organisation. It provided legal help in the fields of debt, employment, family law, housing and welfare benefits. It also provided representation for many people over many years. However, it has now been forced to close down in anticipation of the reduction in the fixed fee and, of course, the fact that 90 per cent of their work is being taken out of scope in the Bill that is currently going through Parliament. This is a tragedy for local people, who received legal help in 1,500 cases last year. The local authority in that part of west London is generous, but the Government’s proposals have meant that Law For All has closed its doors. I have spoken this afternoon to the chief executive —or should I say ex-chief executive?—who confirmed that the 10 per cent cut that we are debating tonight and the taking out of scope have driven it to close.
It is important to point out that even where the area of social welfare law is not to be taken out of scope altogether, such as in some housing cases and some debt cases connected with housing cases, the order that we are debating tonight means that the continuing work in housing, for example, will be reduced by 10 per cent. All housing work that stays in scope will be affected.
Noble Lords may want to know how much this will save. It is estimated that the saving from the whole order, including the 10 per cent cut in civil and family legal aid across the board, is worth £45 million. The cuts as they affect social welfare law fees are all of £5 million. That is a figure that the Legal Action Group has confirmed. Of course it is a rough figure but it shows just how much or, rather, how little will be saved by this order. Saving £5 million in fees when Her Majesty's Government intend to spend £250 million on ensuring that there are weekly rather than fortnightly collections of rubbish is absolute nonsense. Have we not got our priorities entirely wrong?
In the Hansard published today, the Minister has answered a Question that I asked him. The information is that:
“In cash terms, spending on legal aid in 2010-11 was … some £66 million (3 per cent) below provision”.—[Official Report, 25/10/11; col. WA 137.]
Yet the aim is to save £5 million by cutting these fees by 10 per cent.
I am not allowed to seek to amend this order and I therefore have to pray against it as a whole. Whether I vote against it tonight will depend on what other noble Lords say in the course of the debate that I hope will follow and, of course, particularly on what the Minister says. I beg to move.
Baroness Deech
My Lords, I declare an interest as chairman of the Bar Standards Board. The Bar Standards Board is the regulatory arm of the Bar Council, not the representative one, and I have no direct concern with the pay that barristers earn. My job is to further the objectives laid down for the Bar in the Legal Service Act 2007. There are eight in Section 1, including protecting and promoting the public interest, improving access to justice and encouraging an independent, strong, diverse and effective legal profession. What I have to say tonight when I encourage your Lordships to annul this order is based entirely on the application of those objectives in the regulation of the education and working lives of barristers.
Last Sunday, an advertisement appeared in the Sunday Times headed,
“Helping the most vulnerable in Society”.
It was for a new chief executive of the Legal Services Commission, which hands out legal aid. I quote from the ad:
“Our role is to ensure through our providers that independent, high-quality legal advice and representation is available to vulnerable people who cannot afford it themselves. We enable people to protect their rights and defend their interests”.
This order flies in the face of the aspiration in that advertisement and of the achievements of the objectives in the Legal Services Act and the profession.
Let me turn first to the effect it will have on women and black and ethnic minority barristers. This is a central plank of the work that we do at the Bar Standards Board in encouraging and retaining those very barristers. The effect of this order is to cut the rates payable in family advocacy by 10 per cent. It will be felt hardest by women and black and ethnic minority barristers, who are disproportionately represented in dependence on legal aid, while white men are the least dependent sector. There has been considerable government pressure to open up the legal profession still more to entrants from all backgrounds, albeit that it is already a very diverse profession.
Alan Milburn’s report of 2009 singled out the legal profession in his survey of social mobility, even though the Bar and solicitors go to enormous lengths to explain and reach out to young people all over the country. The Bar has a record to be proud of, with over 15 per cent of pupillages going to black and ethnic minority students in a very competitive market. The cuts in fees in this order undo all that work, and make the Government appear two-faced.
Sixty per cent of the family Bar are women, and they do 66 per cent of legally aided children work. Half the family Bar relies on public funds for more than 60 per cent of its turnover. From their gross earnings, modest though they are, barristers have to pay overheads to chambers and clerks—typically 20 per cent—and in addition meet their own pensions, illness and professional insurance cover and expenses. The King’s College London survey of barristers in 2008-09 indicated that 80 per cent of them intended to abandon legally aided public work. This generation of young people have university tuition debts and huge fees at Bar school, and the modest but reliable income that was once their support in the early years at the Bar is now to diminish to such an extent that they cannot earn a living. There is no point in the great efforts put into outreach in this situation.
It continues on into the judiciary. The noble Baroness, Lady Neuberger, reported on judicial diversity in 2010. A less diverse profession means a less diverse judiciary, and fewer women judges. The diminution of the profession also means more litigants in person taking up more court time, not less, with problems being stored for several years down the line because they cannot be settled in court in a proper and timely way.
As with other demanding professions, women are being lost to the Bar after five to 10 years in practice, because of the costs of childcare. It is unaffordable and will be even more so. Twice as many women leave the Bar as do men for that reason. The cut in fees in this order will weaken retention. It will also damage the children who are the subject of court orders, because now the experts who give evidence in child cases are placed within this table of reduced fees, and the fees are set at below the level needed to maintain their practices.
The Government have given no evidenced reason for cutting by 10 per cent, and they have not waited for the outcome of the Family Justice Review, chaired by David Norgrove. In March of this year, its interim report commented on the adverse impact that cuts would have, the lack of data about case-handling and flow through the court, and the contribution made by the lawyers in the cases. In the 2009 study Family Law Advocacy by the very experienced researchers John Eekelaar and Mavis Maclean of Oxford University, it was shown that where lawyers were involved in family law cases concerning money and children, the majority of cases were resolved without court process or contested hearing. Even where the cases went to court, in the highly charged emotional atmosphere that one would expect, the presence of specialist family lawyers enhanced the prospects of resolution and shortened the court process, for they are minded to act collaboratively and in the interests of the children. Additional damage has already occurred to women and children through the closure, because of already instituted cuts, of the advice agencies Refugee and Migrant Justice, the Immigration Advisory Service and Law for All, as the noble Lord, Lord Bach, has just mentioned.
There are more constructive ways to save money. First of all there is too much judicial review, now used as the citizen’s right of appeal. I was surprised to find when I was the Independent Adjudicator for Higher Education, running an alternative dispute resolution service for students, that those students obtained legal aid to challenge our decisions. There should be a push back against the notion that human rights mean that any and every decision can be judicially reviewed at great cost to the public. As for human rights, the real denial of those is to the middle classes, who are neither poor enough to be eligible for legal aid, nor can afford to go to law at their own expense. They are therefore the real victims, who cannot access justice.
The other substantive reform needed is to bring certainty into the law of maintenance on divorce. An obvious model for this is the continental European system of community of property, to which the Scottish system is similar, which entails a fixed fifty-fifty split of post-marital property and little ongoing maintenance. Broad-brush justice it may be, but it is cheap and efficient to arrange. As long as we have our Rolls-Royce discretionary system of settling property issues on divorce, couples will continue to waste sums they can ill afford—sometimes amounting to as much as the property in dispute—on deciding who gets what.
This order should be annulled. The Government should await the Family Justice Review report and change substantive law to get a more efficient system without damaging the profession and its diversity.
Lord Scott of Foscote
My Lords, I, too, support this Motion and agree with nearly all the remarks made by my noble friend Lady Deech. The statutory instrument is an extremely worrying document, proposing as it does to reduce by 10 per cent the remuneration payable to lawyers for legal services in cases covered by a legal aid certificate. What is the reason for this? The purported reason is set out in the Explanatory Memorandum. Paragraph 7.2 explains that,
“the Government considers that it needs to ensure that it only pays those fees that are absolutely necessary to secure the level of services that are required”.
That is an entirely acceptable proposition but I suggest that it is weasel words.
The reason is not that legal aid should not have been granted in a number of cases or that the remuneration assessed under the present regulations exceeds a reasonable charge for the work done or that the work done was unnecessary. The reason is that assistance is needed from the Ministry of Justice to help reduce the budget deficit. Why that could not have been explained as the reason in the Explanatory Memorandum, I know not. But the reason plainly is simply to assist in reducing the budget deficit.
Are others who do work for the Government as independent contractors, such as barristers or solicitors, to have their remuneration reduced to assist in reducing the budget deficit? I have not heard of such a suggestion. Why are legal aid lawyers being singled out for this attention? The effect of the 10 per cent reduction needs to be thought about. A number of lawyers may decline to accept legally aided work, bearing in mind that they will receive 10 per cent less than the sum which would have been reasonable remuneration under present standards. Why reduce what has been assessed as reasonable remuneration?
A second possible result has already been referred to by my noble friend Lady Deech. The number of litigants in person may increase and their presence in court almost invariably means that the case takes much longer. It often means that there will have to be adjournments. The judge with litigants in person before him, particularly if there is one litigant in person on one side and counsel for a paying party on the other side, is placed in the position of having to appear sometimes like counsel for the litigant in person. The judge thinks of points that the litigant in person has not thought of that might assist their case. The judge puts those points forward and then it appears that he is taking the side of the litigant in person. It is an unedifying spectacle but all judges will have experienced it. I have myself. Those are the possible adverse consequences.
What are the beneficial consequences? There would be a reduction in the legal aid bill, but that would depend on the additional costs occasioned by the number of adjournments that litigants in persons may bring about. The Law Society has circulated some documents suggesting that the notion that costs will be saved by these so-called reformed are misconceived. It may be only pie in the sky but the proof of the pudding will be in the eating and the disadvantages, I suggest, are apparent.
More important than the disadvantages to which I have referred is the effect on the civil justice system, for which I have a great affection. I have worked in it all my working life. It is not an optional extra but a system that behoves every government to supply for the benefit of all its citizens. Without a civil justice system self-help would become the order of the day in the settlement of issues between citizens. The civil justice system is there to settle issues between citizens and the Government. A feature of an acceptable civil justice system is that it must be accessible to all who need to use it. The legal aid scheme enables that to be achieved. Some types of litigation are removed from the benefit of the ability of litigants to conduct their cases under legal aid, but, broadly speaking, the legal aid scheme seeks to ensure that access to the civil justice system is available to all, which is right and proper. As I have said before, it is not an optional extra to be paid for only by those who can afford it.
The need for lawyers in that system is apparent also and those lawyers need to be paid for. The notion that that can be avoided by Government is no more realistic than saying that any other necessary service which it behoves Government to provide should be paid for by those who work in it. Are doctors and nurses supposed to contribute to the cost of the National Health Service? Certainly not. How is it different where legal aid lawyers work in cases where legal aid has been granted? A functioning and healthy civil legal aid system is essential. The implications of this statutory instrument are that the Government do not regard it in quite that light but think that these impositions can be made on the lawyers who work in that system in order to reduce the cost that would otherwise fall on government.
The 10 per cent reduction does not perhaps matter very much for senior barristers who have established a practice. They will have some privately funded work. They will have established good will among solicitors and clients that they can rely on in legally aided work as well. They will survive the 10 per cent reduction. The ones who will be struck by it and who may not survive it are the new entrants to the profession. Those men and women enter the profession with trepidation. It is a profession which provides no security. There is no firm that will pay you a salary that you can fall back on. You stand or fall on your own efforts and rely on the fees that you earn. Almost every entrant to the profession will wonder how long he or she can manage to continue before the financial difficulties become too great. The statutory instrument separates counsel providing advocacy services under the legal aid scheme into senior barristers who have been in practice 10 years or more and juniors who have been in practice less than 10 years. Those who have been in practice for 10 years or more can be expected to have built up some degree of practice and good will. They probably have some privately funded clients. They probably have some good will with solicitors who do legal aid work. They can probably avoid suffering too much from this 10 per cent reduction in their legal aid income. But what about those new entrants with five years’ call or less? They have no security at all. They will have a meagre income. They will be hoping that it builds to something respectable. For many of them it does but for some of them it does not. Practically every barrister who enters the profession does so in the knowledge that he or she may be unable to afford to continue for long enough to establish a practice on which they can reasonably live. They may have to take a bolthole, so to speak, into employment in a solicitors’ firm or in the legal department in some commercial company. The ones who have to take that course, who cannot wait the length of time necessary to build up a practice they can survive on, will be those who have no advantages of family support to help them in their difficult years. This statutory instrument is going to make those first five years much more difficult. Let us imagine somebody on an employment salary, not a very large one, being told that he or she must suffer a 10 per cent reduction for the future. There will be a drift away from the barrister’s profession and into firms and commercial companies, to which I have already referred. It will do a disservice to the civil justice system, which depends on a stream of lawyers coming up through the system and becoming available eventually as potential judges.
I respectfully suggest that this is a bad statutory instrument. If my noble friend Lord Bach puts his Motion to a vote, I shall vote for it.
The Earl of Listowel
My Lords, I regret that I, too, must support the Motion of the noble Lord, Lord Bach, because of my concerns about the impact on child welfare. I regret doing so, because I know that the Government take the welfare of children very much to heart, and I thank the Minister for ensuring that domestic violence issues have been kept out of the scope of the order and that tandem representation of children in private law cases will be untouched.
I remind the Minister and other Members of the House of Article 3.1 of the United Nations Convention on the Rights of the Child, which states:
“In all actions concerning children”—
whether undertaken by legislative bodies or other institutions—
“the best interests of the child shall be a primary consideration”.
I should be very interested to hear from the Minister how the best interests of children have been considered in this move by the Government to cut legal aid.
Children need the best experts and lawyers in the immensely complex cases that they are often drawn into. My concern is that those experts will be driven out by the further cut in their finances. Expert witnesses to the family courts—including paediatricians, child and adolescent psychiatrists, educational psychologists, adolescent psychotherapists and independent social workers—are all subject to the 10 per cent cut, having already had their fees seriously cut. For clinicians working in London, the situation is worse, because London-based practitioners are allowed to charge only two thirds of the amount charged by those based outside London. As everyone knows, it is more costly to practise in London.
I am concerned that because of the impact on expert witnesses there will further delays for children in the courts and that poor decisions will be made. If a child is taken into local authority care and the wrong decision is come to, it will stay with that child for the rest of his life and possibly for the rest of his children’s lives. We need to get those decisions right and we need the right expertise.
A further concern of the expert witnesses is that they cannot deal directly with the Legal Services Commission but have to work indirectly through solicitors. Perhaps the Minister could look at that, because it would certainly be an improvement if they could deal directly with the commission.
I look forward to the Minister’s response. I hope that he can give some comfort to your Lordships.
Lord Marks of Henley-on-Thames
My Lords, I rise with a heavy heart to speak against this annulment Motion. It is with a heavy heart because, for all my professional life, I have been a devoted supporter of legal aid. I declare an interest as a barrister who over the years has done a great deal of publicly funded work. My first ever motion to a Liberal Democrat conference was on the promotion of legal aid. The Liberal Democrat Lawyers Association, which I chaired for a number of years, drank a toast every year at its annual dinner to the Legal Aid Fund, a toast proposed by a prominent lawyer. It is noteworthy in the context of today’s debate that the toast was changed some 10 years ago to “justice for all”, as an ironic response to cuts in civil legal aid made by the then Labour Government. I chaired a policy group entitled A Right to Justice, which helped to define Liberal Democrat policy on improving the legal aid scheme. My party has always taken as its starting point for discussion on this topic that access to justice is a crucial right and that legal aid funding provides a vital public service. There is no point in having rights enforceable at law if citizens cannot secure those rights in courts of law. I know from many years’ experience of him that that is the position my noble friend the Minister takes as well.
However, while there was much to agree with in all the speeches that have been made so far in favour of the Motion, we live in difficult times. As the noble Lord, Lord Bach, fairly acknowledged, savings must be made. The provisions of the order are estimated to deliver £120 million of the £350 million of savings that the Ministry of Justice is required to make in legal aid over the spending review period from 2011-15. If we do not make those savings, matters can only get worse and later cuts will have to be deeper.
On a personal note, in Greece, my wife's home country, I have seen at first hand the effects of the extreme austerity measures cutting back public expenditure. The cuts could have been much less harsh had the Government there got a grip on the public purse earlier when all the signs of overspending were plain for all to see.
The need to make savings in the legal aid budget was recognised by the Labour Party in Government who made some 30 attempts to limit it, reducing fees in real terms across the piece as they did so, between 2006 and their leaving office. Furthermore, that was before the full extent of the deficit became apparent and the need for deficit reduction and cuts across the board became as clear as it is now. On 18 May 2009, the noble Lord, Lord Pannick, asked whether the Labour Government would maintain the rates of legal aid payments in family law cases. The noble Lord, Lord Bach, replied:
“Family legal aid costs have risen unsustainably from £399 million per year to £582 million per year in the past six years. We need to control these costs in order to protect services for vulnerable clients”.—[Official Report, 18/5/09; col. 1201.]
In the consultation paper sent out by Ministry of Justice in July 2009, for which the noble Lord, Lord Bach, as legal aid Minister, was responsible, its proposals were described as follows:
“Our legal aid system is one of the best funded in the world. We spend around £38 per head on it annually in England and Wales, compared to £4 in Germany and £3 in France. Even countries with a legal system more like ours spend less; for example, both New Zealand and the Republic of Ireland spend around £8 per head”.
I regard the fact that we still spend considerably more than comparable countries on legal aid as a matter for pride. That is still the case but it highlights the degree to which the legal aid budget must bear its share of the economies that have to be made.
The Labour Government's consultation paper continued:
“While we devote considerable resources to legal aid—£2bn annually—”
the figure is now £2.2 billion—
“our resources are limited, and we need to review regularly how legal aid funds are being spent, and whether we are securing value for money for the taxpayer and providing the services that the public need”.
The Government's response to the consultation, published in January 2010 and signed by the noble Lord, Lord Bach, said:
“The Government wants to ensure that we rebalance the legal aid budget as far as possible in favour of civil help for those who need it most. But we also need to ensure that the resources we currently devote to civil legal aid are being targeted appropriately, and that the rules for granting funding are as robust as they need to be to ensure that resources are expended on meritorious cases … The intended effects are to redirect resources onto higher priority areas, and to ensure that funding is only granted to eligible clients”.
The words “rebalance” and “redirect resources” would inevitably have involved real terms reductions in fees. Labour’s 2010 election manifesto said:
“To help protect frontline services, we will find greater savings in legal aid and the courts system”.
When this Government's consultation paper on legal aid was published, the noble Lord, Lord Bach, very fairly said, as he said tonight:
“It would have been hypocritical of Labour to say we would not cut anything. If we had, we would be rightly criticised”.
It is beyond doubt that the reductions in fees embodied in the order, which the noble Lord seeks to annul, do make it more difficult for the already hard-pressed community legal practitioners, mentioned in the Motion, to thrive and will make it more difficult for barristers, junior and senior, who work on publicly funded work. We agree entirely with the noble Lord, Lord Bach, that such practitioners carry out an essential service for those least able to afford it. This order does involve a 10 per cent cut in their fees and in the fees of barristers for publicly funded work across the field of civil and family law, not just social welfare law. It includes—I would suggest rightly—a limit on experts’ fees for the first time. It is going to be more necessary than ever for lawyers to practise as efficiently as they can and the harsh reality is that they will earn less from legal aid work. However, I am far less clear that their core viability is threatened.
We will be debating these issues—and the other issues about the scope of legal aid mentioned by the noble Lord, but not the subject of this order—in full when the Legal Aid, Sentencing and Punishment of Offenders Bill comes to this House shortly. I hope we will also be able to explore during the course of this Parliament other ways in which savings might be made without damaging the quality of the justice system. Progress is being made in exploring the achievement of savings through alternative dispute resolution procedures. I believe there is also room for improvement in the efficiency of the court system to produce savings. In the family field, I look forward with great hope to the final report of the Family Justice Review chaired by David Norgrove.
I would make it clear from these Benches that we have been, and are, heavily involved in discussions with practitioners and others , including many civil and family law practitioners, both barristers and solicitors, who have quite rightly expressed their concerns to us. We will examine closely with Ministers whether, and how far, the Bill achieves fairness and the protection of the vulnerable in the use of extremely limited resources. We would hope and expect that in due course, in a reviving economy, any gaps in provision that emerge will be refilled. However, that there must now be some cuts in fees is inevitable in these straitened circumstances.
In advancing this annulment Motion I suggest that the noble Lord and the Labour Party need to tell us what choices they would have made, or would make now, in cutting the legal aid budget. What were the cuts that he was intending to implement? How would they not have threatened hard-pressed community practitioners? Until those questions are answered fully, I suggest that, however regrettable the need for fee cuts in civil and family proceedings, it would not be sensible to divide the House on this Motion.
The Lord Bishop of Ripon and Leeds
My Lords, I am grateful to the noble Lord, Lord Bach, for raising this issue tonight and for concentrating my thoughts—like those of the noble Earl, Lord Listowel—on the welfare of children as they are treated by our legal system. We spent the whole of this afternoon talking about the treatment and rights of children. I look forward to the Government’s response and comment on the ways in which children can be particularly protected in our legal system by the way in which the distribution of fees is arranged throughout that system.
I am still puzzled by the words of the noble Lord, Lord Marks, and why it should be this area in which we look for savings. A number of noble Lords have spoken of areas, in criminal law, for example, where there could be significant savings. Why should it be this area? I think of the work, for example, of Henry Hyams, a firm of solicitors in Leeds which takes some 2,000 cases a year from the most deprived areas of Leeds. They tell me that almost all of those cases involve the welfare of children.
That takes us to the effect of these cuts on those clinicians who provide reports to assist the courts in making determinations about the safeguarding of children—professionals who provide evidence of injury and of abuse and who are often key to the welfare of children. We have improved immensely our understanding of childcare in our society, and much of that has been due to the diligence of such professionals. We are all made very aware when a mistake is made by one of those professionals; we forget the thousands of cases when accurate decisions are taken about children’s welfare and their future. The debate that we had all afternoon and this debate come together in looking at the well-being—again—of children, and of their place in our society.
Clergy in pastoral work are often aware of the time spent both by those clinicians and by lawyers with their clients, seeking the best way forward for children and family life, often in work that is undertaken quite outside the fee system. We claim to be a society that puts the family first; social welfare law is an important part of enabling us to do that.
The noble Lord, Lord Marks, spoke of the way in which he hoped that, if there were gaps in our provision, they would be able to be filled again as the economic situation becomes better. But the most important part of our response to the difficulties in which we find ourselves is that those who are most deprived in our society should be those whom we seek to protect from the cuts being made. The Government and many local authorities seek to do that, yet in this particular instance those cuts are bearing at their hardest on those least able to bear the brunt of them.
Lord Beecham
My Lords, I have three categories of interest to declare. The first is professional but, unlike a number of noble Lords who have spoken, not as a member of the Bar and still less as a most distinguished judge but as a mere solicitor and now as an unpaid consultant in the firm of which I was senior partner for some 30 years. The second is a political interest. As my noble friend will recall, it was a resolution that I was responsible for that went to the Labour Party conference some three years ago, which was somewhat critical—and rightly so—of the then Government’s policies on legal aid. That led to the establishment of the committee chaired by my noble friend Lord Bach, on which he was gracious enough to invite me to participate. The third is a personal one, because the noble Baroness, Lady Deech, and I graduated at the same time all of 46 years ago from the school of jurisprudence at Oxford.
This order, coming as it does shortly before the Legal Aid, Sentencing and Punishment of Offenders Bill reaches your Lordships' House, is something of a tawdry harbinger of what is very likely to be a prolonged and hard winter for access to justice. It is interesting that the young legal aid lawyers, in the briefing note that they have circulated, drew attention to the fact that the consultation that the Government entered into on their proposals to reduce these fees was very limited. They consulted only the Law Society and the Bar Council; there was no consultation with other stakeholders, such as law centres, community groups or citizens advice bureaux, or indeed any client interests. This does not seem to represent the “no decision about me without me” process, which was allegedly followed in terms of the health service.
Lord Newton of Braintree
My Lords, we live and learn. I apologise to my noble friend on the Front Bench for my slowness in getting up and, possibly, for what I am going to say. We live and learn: I always knew that I was more liberal than the previous Labour Government; I now know that I am more liberal than the Liberal Democrats, at least as represented in the House tonight. I hope that my noble friends on the Front Bench have not reached the stage of trembling when I stand up, because I am really quite a nice pussycat—in comparison with some, at any rate—but I can assure them that, were this to be pressed to a vote, I would not vote for it. I do not think that it is right for us to be killing off statutory instruments in the way that this would do, certainly with the way that the House operates at the moment. However, it is important that somebody from these Benches should make it clear that, even if we would not want to see this voted down, we are not happy bunnies about the policies that seem to underlie it. There are those of us, as I have already warned my long-suffering Whip and others, who are likely to want to return to some of these issues when we get to the Bill that is coming down the track towards us.
The speeches in this debate by the noble Lord, Lord Bach, the noble Baroness, Lady Deech, the noble and learned Lord, Lord Scott of Foscote, and others, including the noble Earl, Lord Listowel and the right reverend Prelate—in fact, everybody bar one, dare I say, who has spoken—have made a pretty devastating case. I will listen to the Minister’s answer. I am a notoriously pliable chap, and if I am convinced I will be prepared to change my view, but at the moment I think that they have made a pretty devastating case. I have only one question to add to those that have been asked, which is about mental health, where locking people up remains one of the areas where you can get legal aid for the mental health tribunal.
I think it is relevant that two years ago, when I was still chairing the Administrative Justice and Tribunals Council, the Ministry of Justice, under its former incumbents—or the officials, at any rate—asked the council, and me as its chair, to chair the user group for mental health tribunals. This is a little less comfortable for the Opposition Front Bench, but even at that stage, mental health lawyers were expressing the view that the cuts that had been made in legal aid remuneration were, at least in some parts of the country, making it virtually impossible to find people to represent those before the mental health tribunals. It was particularly true in the south-west; there were some concerns in the north-east, but there were certainly concerns, even with the policies that had previously been pursued. I therefore want to ask two questions of the Minister. Is mental health affected or potentially affected by this? What is the position on the availability of legal aid lawyers to help claimants who have been confronted by the prospect of being deprived of their liberty by mental health tribunals? This ties in with the point that the noble Lord, Lord Beecham, has just made very effectively. The net result of this may well be to reduce the amount of support available to vulnerable people, not only because legal aid is not available but because growing numbers of young lawyers who do pro bono work will not be able to afford to go on doing it. This is a worry for many law centres and the like. I should like some comment on that.
Lord Martin of Springburn
My Lords, I have enjoyed listening to the experts in law and legal aid. It is deeply unfair that a 10 per cent cut should be put on one section, and one section alone, of a service that is paid for by the taxpayer.
The Law Society was here today to talk about the future legislation that will come before this House. I asked how much lawyers earn in the field of legal aid. I was told that young lawyers earn £25,000, as has been mentioned. They rightly deserve it, but there are many manual workers, tradesmen and semi-skilled people who earn that kind of money and work hard for it. However, we are making a 10 per cent cut.
As the noble Baroness, Lady Deech, said, many of those who work in the legal aid service are women. I know that there is not much sympathy for Members of Parliament at the moment but I met a former colleague, a lady Member, who said that a substantial part of her salary goes on childcare. There is no doubt that the cost of childcare has gone up. It has gone up for those young mothers who work as solicitors. Any of us who drive a car will know that prices are going up every time we go to a forecourt. Lawyers need to travel to get to court. They are not just based in London. Therefore, this cut is extremely unfair.
I am surprised by the Minister, who was at one time a member of a trade union. I do not know whether he still is; it would have been the T&G that he was in, would it not? I do not think that any organiser in the Transport and General Workers’ Union would want a cut of 10 per cent in the workforce, or take it lightly, so why should we do this?
In the constituency that I previously served and the place that I was raised in, a great many men and women who were asylum seekers came, as a result of a decision of the Home Office, to live in my community. More often than not, they came and received advice from legal aid practitioners. While those asylum seekers were coming to me, they were also going to the legal aid practitioners. I was able to form a good working relationship with those practitioners and found that they were doing things over and above their duties as solicitors—working outside office hours and going to people’s homes to try to help them. These practitioners are the people on whom we are going to impose cuts.
As the noble Lord said, cuts have to be made, but we have to look at how we implement them. It is the easiest thing in the world to say, “Right—10 per cent across the board”. However, it is not necessarily the right thing to do. I urge the Minister to reconsider this matter. At a time when many young people in this profession cannot even get mortgages, because that is difficult, they have to go into the rented sector, and their overheads are far more than they used to be. I can recall times when people did not have access to legal aid solicitors, and the difficulties and hardship that that caused for their families lasted for years. I hope that the Minister reconsiders this matter.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this is the point in the evening when I thank everyone for contributing to a wide-ranging debate—so wide, in fact, that it would probably take me at least 40 minutes to reply. I will try to do justice to the debate in a shorter time because the House has more business to consider. I remind the House that this was supposed to be dinner hour business—a matter that the usual channels might look at in future when they do their planning.
The debate was indeed a trailer for the Legal Aid, Sentencing and Punishment of Offenders Bill—now known to its friends as LASPO—that will come to this House. I do not object to colleagues using the opportunity to widen the debate to cover some of those areas. The noble Lord, Lord Beecham, said that it was a “tawdry harbinger” of a long hard winter for legal aid. I say to the House—to the right reverend Prelate, my noble friend Lord Newton, and others—that there would be a long hard winter if this Government did not face up to the spending cuts that are needed. It is all very well, as the noble Lord, Lord Martin, said, to say that this 10 per cent cut was the easy way. I put it to him that the easy way, which we have heard time and again tonight, would be to say, “Not this cut. Not that cut. We would do it in a different way”. We have had to face up to the fact that we have to make some hard decisions.
It is not just this part of legal aid that is taking the hit. The Ministry of Justice is a relatively small department with a budget, when we came into office, of £10 billion. We made a commitment for the spending review to cut that by £2 billion. As the noble Lord, Lord Bach, knows, we have only four major areas of responsibility—prisons, the Probation Service, legal aid and court services. They have all taken their cut and it is simply not true to suggest that we have taken a particularly easy view in terms of legal aid. As my noble friend Lord Marks said—and, to be fair, the noble Lord, Lord Bach, echoed it—the previous Labour Government were looking at legal aid. I went to the Commonwealth Law Conference. I have never used the comparison with continental legal aid because I know that there is a different system there, but I particularly sought out the Canadian, Australian and New Zealand law officers to talk about legal aid and they confirmed what the noble Lord, Lord Bach, knows full well—they all consider our legal aid system to be, in their terms, “absurdly generous”. It is also untrue that we have not made comparable cuts in criminal legal aid. In fact, the parallel order will, over the period, save some £80 million in criminal legal aid spending.
The noble Lord, Lord Bach, particularly mentioned Law For All. That is interesting because it very much echoes what was said when the Immigration Advisory Service closed. Let us be fair: Law For All has closed before any of these legal aid cuts have come in, so the legal aid cuts have not caused its collapse. However, it is interesting that the Legal Services Commission was able to make provision from other providers, and I shall return to that in a few minutes. We have recognised the problem relating to CABs and law centres, and I shall try to cover that in my main remarks.
The noble Baroness, Lady Deech, made an interesting point. I am proud to be the Minister responsible for promoting diversity in the legal profession. I put it to the noble Baroness that it is not a matter of diversity to suggest that women and black and ethnic minority lawyers should be corralled in one part of the legal profession. Indeed, my drive in terms of diversity—the noble Baroness is quite right and I have talked to both the Bar Council and the Law Society about this—is that the profession as a whole has a responsibility to promote diversity, not in the narrow area of legal aid but across the profession. To be fair, I think that they are responding to pressure in that area. We are taking diversity extremely seriously.
The noble Baroness and a number of other noble Lords also mentioned the Family Justice Review, which is a separate and independent programme of work looking at the entire family justice system. Our proposals are not dependent on the outcome of that review and are focused on legal aid; they go in the same direction as, and in support of, the aims of the Family Justice Review, which I am assured will be published very shortly.
The noble Baroness, Lady Deech, and a number of others talked about the fee levels reducing access to good-quality experts. The benchmark rates for experts have been applied by the Legal Services Commission for some time. The truth is that there are only limited anecdotal reports of problems with access to experts.
The noble and learned Lord, Lord Scott, accused us of weasel words in the Explanatory Memorandum, and I hope that my opening remarks have removed those weasel words. Of course, much of this has been driven by the need for cuts in public expenditure, but we have tried to do so in a way that focuses legal aid on the most needy.
We go back to the issue of the level of spending. What is so sacrosanct about £2.2 billion? It certainly was not sacrosanct for the previous Labour Government because they were planning to cut it anyway. The system is not being dismantled. It does not help when the noble Lord, Lord Beecham, makes that kind of comment. I could make a point about the earnings of barristers in family legal aid work, but let us not go down that route.
Lord Beecham
The lack of consultation to which I referred and on which I quoted the legal aid lawyers was in relation to this fees order, not the Green Paper.
Lord McNally
These were all foreshadowed in the Green Paper. The noble Lord, Lord Newton, is not a happy bunny but, as I said to the noble Lord, Lord Beecham, if we were not willing to take tough decisions, there would be a lot more unhappy bunnies around because we would be paying interest rates of two, three or four times what we are paying now, which would result in far greater cuts in public expenditure and services. The fact that our Government are not making headlines in relation to the economic situation in which they find themselves is because we had the courage to take tough decisions early. I have no doubt that when we ask colleagues and the Opposition to face up to that fact, we will always have the problem that these are tough decisions; we have never resiled from that.
Lord Higgins
Yes, I realise that, but my noble friend has just made a rather extraordinary statement. He said that we would be paying interest rates three or four times greater than we are now and I just do not understand what he means.
Lord McNally
At what rates is Ireland borrowing at the moment? I am suggesting that we would have lost control of our economy in the way that some parts of Europe have lost control of their economies. The consequences for public expenditure would have been much more severe. I would have thought that I would have had the support of my noble friend in that.
Lord Higgins
No one is more enthusiastic than I am that we should cut the deficit as fast as possible. I have made that clear, time and again. I just did not understand the quantitative statement that he made, but I do not wish to delay the House further.
Lord McNally
On the other points that the noble Lord, Lord Newton, made, legal aid is currently available for legal advice on any mental health matter and representation for mental health matters heard in the county court, such as charging a detained person’s nearest relative for mental health legislation purposes, for damages claims and for representation before the first tier mental health tribunal and onward. We propose retaining these changes within the scope of legal aid.
In 2010, tenders for legal aid contracts for mental health demonstrated a strong demand for mental health work, with nearly three times as many new cases bids than there were cases available.
I hope that answers the points that the noble Lord, Lord Newton, raises; namely, that there is the supply that he was concerned about and that we will continue this in scope.
The House will be aware that the Government have had to make some tough decisions. As I mentioned, the noble Lord, Lord Bach, accepted that when he had responsibilities for this matter the legal aid fund had to play a part in the often difficult exercise. To govern is to choose. It is a key role of Government on behalf of the taxpayer to ensure that the amount they pay for any service represents maximum value for money. In this context it is essential that the Government ensure that they only pay the rates that are necessary to secure the level of services that are required. While this may not be welcomed by those who provide services funded by legal aid, it is a reality that suppliers of other services across the country face on a daily basis. The Government recognise that some providers may choose not to continue to provide legally aided services in this environment, but it is not the purpose of the legal aid system to sustain the current legal market. Rather, we want to continue to have a sufficient supply of providers of satisfactory quality to provide an appropriate level of services for legally aided clients.
The order that we are debating this evening introduces a number of changes to the fees that the provider can currently receive for carrying out legally aided work. The main features were referred to by the noble Lord, Lord Bach. Justice is required to make savings in the year 2014-15 of about £50 million. My noble friend Lord Marks referred to the total savings of £120 million. With the exception of the family fee reforms which will take effect on 1 February 2012 when new contracts under the family re-tender exercise are expected to commence, the new fees took effect on 3 October 2011 and apply to all cases commenced after that date.
The reforms were subject to a full public consultation which ran from 15 November 2010 to 14 February 2011. I have already referred to that in reply to the noble Lord, Lord Beecham. With the exception of the Law Society, no respondents provided any form of detailed numerical analysis of the market. The Law Society did so through Mr Andrew Otterburn. His report indicated that while the fee reduction will inevitably reduce the income of solicitor firms, on the whole, they would still make a profit even before making any efficiencies in working practices.
Subsequent to his report, Mr Otterburn specifically confirmed to the MoJ that, in his view, an overall phased reduction in fees of around 10 per cent, with the reduced fees only applying to new cases commenced after the implementation date, would allow solicitor firms time to adjust to the new fee levels and would not, therefore, necessarily make supply unsustainable.
The Government accept that the proposed reforms may be particularly challenging to the not-for-profit sector. That was raised by a number of colleagues. However, it is also the case that the major issue for this sector, generally, is change to other sources of funding; for example, as was acknowledged by the noble Lord, Lord Bach, from local authority cuts, which may make supply in the areas they cover vulnerable in any event.
This is clearly a matter for concern for the Government as a whole, and the issue of the future of the voluntary advice sector will be considered as part of a cross-Government review on which an expected announcement will be made shortly. In the interim, the Government have already provided transition funding to assist the not-for-profit sector to adapt to the changing financial environment. I understand that overall 45 individual CABs and 17 law centres have taken advantage of this fund. As the noble Lord will be aware, the Government will also be providing a further £20 million of funding for the not-for-profit sector. Specific details of this fund will be made available shortly.
In the context of legal aid services, the issue is whether services will be available for clients rather than whether that service is provided by any particular provider. We assessed the likely impact of the reforms when considering the responses to the consultation and overall are satisfied that the reforms are sustainable and that, although individual providers may leave the legal aid scheme, there will be a sufficient supply of providers of satisfactory quality to provide an appropriate level of service in all areas of law. The Government therefore consider that the fee reductions will be sustainable and will ensure that clients can continue to access legally aided services.
As noble Lords will be aware, the Justice Committee report on legal aid concluded that, given the extent of the savings that the Ministry of Justice is having to make, in principle it is correct that fees should be reduced. We are willing to look at areas of isolation—the so-called legal aid deserts—and there are a number of actions that the Legal Services Commission can take to mitigate shortfalls if they develop. As I said earlier, it is also true that some of the fears that people would not come forward have not been borne out in areas where individual firms have collapsed. Indeed, in all the areas where we put forward contracts, there has been an oversupply in terms of those seeking that work.
In addition, there is a genuine alternative. The Community Legal Advice telephone helpline is an alternative for those involved in legal aid. I see the noble Lord, Lord Beecham, shaking his head. The other night, I went to a Law Society function giving prizes to successful law firms, and I was amazed by how many of the prize winners were offering online and distance advice. The old idea of face-to-face may not survive. There is no doubt in my mind that the legal profession is a profession in transition in many respects.
I am being told to shut up, and I will. The fact is that wherever we have been looking at new contracts, we have found that they have been oversubscribed, so I do not think that this is the issue that is suggested. It is not a 10 per cent cut per individual. It is a challenge to those firms and to the legal profession to find different methods of service, different structures and different efficiencies. That is a pattern that many professions and many industries have found over the years. We are confident that there are sufficient numbers of providers willing to remain in the legal aid market. I am well aware that a lot of what we have discussed today is a dress rehearsal for when the LASPO Bill comes, but I do not believe that it would be right to pass this Prayer this evening, and I sincerely hope that the noble Lord, Lord Bach, will resist putting the Motion to a vote.
Lord Bach
My Lords, I thank all noble Lords who have taken part in this debate, and especially the Minister for his winding up. I will give the House the good news, which is that I certainly do not intend to divide the House. I would very much like to, particularly given the degree of support for my Motion from around the House tonight—I am most grateful to noble Lords who have supported me—but it is too late to call a vote tonight, and in any event I am not certain that it would be the right thing to do, given that the Bill is due to come to this House next month. I will not be calling a vote, so anyone who wants to go now, please feel free.
I am afraid, though, that it was not the Minister’s arguments that persuaded me not to call the vote—indeed, if he had gone on much longer I might have been tempted to call it in any event. I shall make a few points and then the House can move on. Some very good speeches were made, if I may so. The noble Baroness, Lady Deech, talked about the Bar with great experience and knowledge. The noble and learned Lord, Lord Scott of Foscote, made some very important points, one of which I will come back to at the end of what I have to say. The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Ripon and Leeds were both right on the spot with their concern for children law, if I may call it that. My noble friend Lord Beecham, with his experience, made very telling points as always. Last, but certainly not least, the noble Lord, Lord Newton of Braintree, made a very telling contribution, and one to which I think the Government side should listen with some concern.
As to the speech of the noble Lord, Lord Marks, of course I admired his loyalty, perhaps rather more his loyalty to the Government and to the Minister than to his party, which as I understand it has already made it clear at conferences twice this year that it does not like the way in which the Government are behaving towards legal aid. He asked me to state which cuts my party would have made in Government. I am not sure that he was listening with his usual care to what I said in my opening remarks, which was that the Labour Lord Chancellor and myself put out a White Paper called Restructuring the Delivery of Criminal Defence Services, which we would almost certainly have put into effect had we been elected—which we were not—and which would have saved a great deal of money. It would have been controversial and I have no doubt that there would have been debates in this House too in that event.
I did notice that in his interesting speech there was nothing at all about social welfare law and nothing about whether he felt it was right to attack social welfare law. What I had to say earlier was very much based around that part of the order. He said very little about criminal law, either, and about whether savings might be made in that field. He quoted figures and speeches that I had made, in which I, like legal aid Ministers down the years—as they no doubt will in the future—had said how generous our legal aid system was compared to the ghastly rest of the world. I did use those phrases, and there is some justification in them, but to be honest, not perhaps quite as much as I used to think when I spouted those words. For example, we compare ourselves with New Zealand, another common law country, and say, “My gosh, New Zealand gives a much smaller amount for legal aid than we do”. However, the situation in New Zealand is quite different. There, for example, there is no liability compensation, which costs a great deal in this country. There are other considerations as well.
Let me be frank: when we were in Government, I have no doubt that we made mistakes in this field. I am sure we did. There is no doubt in my mind that his Government are making mistakes now as well. Perhaps the noble Lord, Lord Marks, will remember next time he speaks to the House on these matters that we are dealing with what his Government are intending to do, not with what my Government did or did not do when they were in office.
The Law Society has suggested savings of up to £350 million as an alternative to the legal aid cuts that the Government are putting forward. As we did not hear it tonight, we look forward very much to hearing what is wrong with the Law Society’s—
Lord McNally
What is wrong with the Law Society’s figure is that it does not save public expenditure to shuffle costs around Whitehall to other departments or to propose extra taxation on alcohol. That is not saving public expenditure; it is shuffling the pack.
Lord Bach
If the noble Lord is right, perhaps he will explain this decimation of social welfare law, with its few savings for the Ministry of Justice, and how it will cost infinitely more to the state as a whole when problems are not solved, people are chucked out of their houses, debts grow bigger, families break down and children commit crime. Other departments will have to pick up the pieces for the paltry savings that the Ministry of Justice will make. Please do not give us that stuff about public spending. The truth is that these Ministry of Justice savings—we have said that we accept that the MoJ has to find a number of savings—will cost the state and the community much, much more.
As the noble and learned Lord, Lord Scott of Foscote, said, civil legal aid is not an optional extra. The concern is that this Government are treating it just as an optional extra and the cost will be much greater. We could see which way the Government were going on legal aid way back in June or July 2010 when out of the blue they removed the grants that were given by the Legal Services Commission for young legal aid lawyers to get legal contracts with legal aid firms. It cost a few million pounds a year, if that. But the Government abolished them at the start and we should have been wise as to what they were planning to do now. There was absolutely no reason for doing that and there cannot be any reason for doing what they are intending to do now to social welfare law.
Legal aid in the civil field is well worth protecting. I shall end with a quote from Supreme Court Justice Lewis F Powell who spoke about the American system but it could just as easily be applied to the British system. He said:
“Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists … it is fundamental that justice should be the same, in substance and availability, without regard to economic status”.
He was right. I hope only that the Government change their mind. I beg leave to withdraw the Motion.
Armed Forces Bill
(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Astor of Hever
That the House do not insist on its Amendment 6 to which the Commons have disagreed for their Reason 6A.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, the debates on the subject of medals are further evidence of the strength of feeling in both Houses on this important matter. I acknowledge the conviction with which a number of noble Lords have pursued their concerns about the Pingat Jasa Malaysia medal and about aspects of the process for deciding what is to be done when other states wish to honour British subjects, particularly those who serve Her Majesty and their country.
In particular, I recognise the contributions made by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Touhig, my noble friends Lord Palmer and Lord Lee, and many other noble Lords. There is widespread concern in this House and in the other place about whether it is time for a wide and independent review of the rules which guide the HD Committee in making its recommendations to Her Majesty. There is concern in particular about whether, in advising Her Majesty on the acceptance and wearing of the Pingat Jasa Malaysia medal in 2005 and 2007, the HD Committee made the right recommendations.
I must begin by making it clear what the Government will do in response to these concerns. First, I have consulted ministerial colleagues, including the Deputy Prime Minister, who have agreed that there should be a fresh review of the rules governing the award of military medals. This review will be conducted by an independent reviewer with full consultation with interested parties and will take account of the issues raised in this House during our previous debates. As part of this process, I will recommend that a solution needs to be found which addresses concerns about double-medalling and about rules setting fixed time limits for the award of decorations. The rules need to be reviewed from first principles to see whether they remain fit for purpose. My right honourable friend the Secretary of State for Defence has already written to the noble and gallant Lord, Lord Craig, stating that this is what we will do. If we are to allow this review to do its work thoroughly and effectively, we need the agreement of this House that the way forward is independent consideration of what improvements should be made to the current system of advising Her Majesty.
There is then the question of the Pingat Jasa Malaysia medal. In anticipation that we will be able to deal with this issue under current HD Committee rules and procedures, I have already commissioned an urgent HD paper recommending that holders of that medal be able to wear it with the approval of Her Majesty. I am confident that we are going to resolve the issue of the wearing of the PJM medal. Within the present architecture of the royal prerogative, the HD Committee will be able to progress this matter swiftly so that the PJM can be worn on Remembrance Sunday this year and thereafter without restriction.
I shall now speak to the Motion and explain why we should not accept the noble and gallant Lord’s amendment. The issue now is not about the PJM medal. I have explained what we will do about that. And it is not about the rules applied by the HD Committee. There are strongly held concerns about those rules and I have said what we will do about them. The issue is not even about taking the opportunity to show respect and admiration for the Commonwealth. Even less does it provide support or recognition for Her Majesty as the head of the Commonwealth. What then are the issues relevant to the amendment? They are these. Is it right for Parliament now to overturn decisions taken by Her Majesty? Is it right for this House to establish a precedent for future interference in past and future decisions? Is it right for decisions on the award of medals to be decided and rules laid down and changed in the glare of parliamentary debate rather than dispassionately? And is it right, as the amendment would provide, to create a rule by which decisions on the acceptance and wearing of Commonwealth medals by members of the Armed Forces and the Civil Service are to be entirely a matter for the Commonwealth Government making the award?
My answer to these questions is this. First, by overturning past decisions that have been made on Commonwealth medals, it would establish a precedent that Parliament may overturn after any length of time any decision of the sovereign as the fount of honour. Secondly, it would establish a further precedent that Parliament is able to lay down and change rules which are to be applied to decisions on the acceptance of honours from foreign and Commonwealth countries. It would assert that Parliament can do so in a way which alters the fundamentals I have described of the existing arrangements, such as the need for a basically consistent approach to awards by all friendly and allied states. Thirdly, it would take away from the sovereign and, indeed, the United Kingdom any control over the acceptance of Commonwealth medals. Whenever a Commonwealth country awarded a medal or honour to members or former members of the Armed Forces or the Civil Service, that decision would be binding, even if it was against the wishes of our Armed Forces, of Parliament or of the sovereign.
Lord Craig of Radley
My Lords, I beg to move Motion A1 and thus speak to my Amendment 6B, which I proposed as an amendment in lieu. In the latter part of his remarks, the Minister reminded the House of the Government’s thinking on the issues that have been central to our debates on the medal amendments that the noble Lords, Lord Ramsbotham and Lord Touhig, and I tabled at the earlier stages of the Bill. Our responses to the Government’s views are on the record of our earlier exchanges. I do not propose to dwell on them now other than to say that my colleagues and I repeatedly urged the Government to take action on two of the issues about which the Minister has just spoken.
I shall speak first about the Pingat Jasa Malaysia medal, the PJM medal, the subject of my Amendment 6B. This award was offered by the King and Government of Malaysia to members of Her Majesty’s Armed Forces and other Crown servants for their contributions to that country’s security in the difficult times of the Malayan emergency and, later, during confrontation with Indonesia. In 2007, acceptance of this award was recommended by the HD committee to Her Majesty for approval, but the committee did not recommend that the medal could be worn without restriction.
As I have explained in earlier debates on the Bill, many recipients have been unhappy about this, particularly as Australian and New Zealand recipients, alongside whom they saw service, were granted permission to wear the PJM medal at all times. The Minister has now assured the House that the HD committee will be making a further submission to Her Majesty and that, subject of course to her approval, these medals may be worn on Remembrance Sunday this year and thereafter. In the context of the Bill that is bringing the Armed Forces covenant into legislation, this is a most welcome approach of fair treatment of veterans who are the recipients of the PJM medal. On that understanding, I do not intend to press my Amendment 6B, which deals solely with the unrestricted wearing of the PJM medal, since the noble Lord’s proposal may achieve the result that it seeks to secure by the more traditional path: that is, within the present architecture of the royal prerogative.
The other topic raised by the noble Lord relates to the workings and responsibilities of the HD committee, which has the most difficult and sensitive task of dealing with a variety of issues concerning medals and other rewards, particularly those of foreign Governments. I greatly welcome the Minister’s reassurance that the time has come for an independent review of the HD committee. In moving our Amendment 6 in your Lordships’ House on 10 October, I contended that there are some HD committee rules that,
“are not fit for purpose”.—[Official Report, 10/10/11; col. 1348.]
On those grounds, I sought the view of the House and our amendment was carried. The arrangements that the Minister has just described will set in hand a thorough and independent look at the HD committee. In the light of the Government’s position as just stated by the Minister, I attach great importance to the independent leadership of this review. I am grateful that it will consider in particular the no-double-medalling and fixed-time limits that have been the source of much unhappiness and concern over the years. I hope that the HD committee, as well as the whole House, will welcome the review.
I should also like to place on record my appreciation for the extremely considerate and open way that I and my colleagues have been treated in dealing with these matters. The new Defence Secretary, in his most busy initial week, took time to discuss them with me and, as the Minister pointed out, has also written to me. The Minister has been most approachable and considerate; he is in full grasp of his brief and greatly admired in this House. It is a measure of his great contribution to the Bill that he was able to persuade his business managers and all the involved departments of Government that it was not realistic nor in the best interests of the Armed Forces and veterans to resist every amendment. Instead, he has contributed greatly to the Armed Forces Bill outcome, with which all should be content.
I am full of admiration for the extremely hard work and commitment of the team of officials and service personnel whose most strenuous efforts have enabled us all to reach this accord. I hope that it is in order to commend them and thank them. I should be grateful if the Minister would pass on my appreciation and that of my colleagues.
I should rather have avoided dealing with any of these issues as grounds for party political discord. It is alien to me as an independent Cross-Bencher, particularly when dealing with matters that affect our Armed Forces. Nevertheless, I am most grateful to the more than 200 Members of your Lordships’ House who supported our Amendment 6, which, along with other amendments, sent the Bill back to the other place. I am personally delighted that the end result has been agreed by negotiation and agreement, a smart win-win result for all sides.
This is a historic Bill since it introduces into the law of the land the Armed Forces convention, an arrangement that will prove to be most valuable and supportive to service personnel, veterans and their families. The Government are to be congratulated on bringing it into statute in this carefully considered manner. For the convenience of any debate, I formally move Motion A1, having made clear my intention about Amendment 6B.
Lord Touhig
My Lords, I welcome the statement from the Minister this evening about the Pingat Jasa Malaysia medal and the independent review of the operation of the HD committee. We have battled on this issue for years in the other place. Here in the House of Lords—I do not want to enter into the debate about a future appointed or elected House—we have achieved something that the elected House did not manage to achieve regarding the Pingat Jasa Malaysia medal. It is a great credit to all concerned that we have been able to do that.
I also think that the Minister’s statement tonight sends out the positive message to a close and dear ally in Malaysia, a Commonwealth ally, that we respect the generosity of the king and the people of Malaysia in honouring those British servicemen who fought in that country. I certainly welcome the independent review of the HD committee. I can see that it has a difficult job but I am not entirely happy with the way that it has done it.
I do not think there is anyone in this House who does not have the highest regard and affection for Her Majesty the Queen, and no one would want to put her in a difficult position regarding the question of honours. I feel that it is the actions of the HD committee that have embarrassed Her Majesty in this respect by the way it advised her that the veterans should accept the medal but not wear it. Thankfully, that is being resolved this evening.
I am a great believer in fate, in the sense that I think that sometimes one faces an issue or a problem and someone comes along and solves it. I pay tribute to the Minister because I am not sure we would have achieved this without his personal efforts. He has been hard-working, honourable and decent throughout this whole thing and has strongly represented the views of this House, and of many others outside, with regard to the veterans.
I join the noble and gallant Lord, Lord Craig, in his praise of the Minister’s team because they have assisted the Minister in bringing about this decision. I cannot speak highly enough of the regard I have—and I am sure the whole House has—for the Minister. As for the noble and gallant Lord, Lord Craig, he has led from the front. He has been persistent and pushed hard, and worked with the Minister and lobbied. I do not know how many meetings he has had with the Minister, and I have to weigh the e-mails I have had from him about the progress he has made on this issue. We owe him a great deal.
I do not wish to detain the House any longer at this late hour. I can honestly say that as a Parliament and as a country, as a result of the Minister’s statement tonight on the veterans of Malaysia, we have redeemed our honour.
Baroness Finlay of Llandaff
My Lords, I briefly add my thanks to those expressed by my noble and gallant friend Lord Craig of Radley to the Minister for his personal commitment to the Armed Forces and the veterans, his personal commitment to ensure that this House had a Bill that is now moving forward to become an Act in a much better condition, and the tireless way with which he and the Bill team have made themselves available to us all. Of course I am glad that he managed to negotiate that the amendment over inquests for military personnel was incorporated. The joy over that must not be diminished by disappointment over the defeat last night over the issue of the chief coroner—that is for another day. For tonight, sincere thanks are due to a Minister who has shown enormous commitment and has worked with us in this House to improve the workings. This has been this House at its best, and we are all grateful to him.
Lord Lee of Trafford
My Lords, I briefly pay tribute to the noble and gallant Lord for the way that he has led the campaign in your Lordships’ House to improve the Bill, particularly in regard to the PJM medal. The Ministry of Defence—in the nicest way—does not have the reputation of being the most flexible of ministries, as indeed I know as a former Minister. However, on this occasion we have seen that the ministry has demonstrated flexibility and compromise, primarily because of the personal efforts of the Minister, who has worked tirelessly to build bridges and bring about a compromise. I pay tribute to him and his Front Bench colleagues for the work that they have done. We have seen during the passage of this Bill this House working together at its best. We have improved the Bill and we should be proud of what collectively has been achieved.
Lord Tunnicliffe
My Lords, we on these Benches are content that the noble and gallant Lord, Lord Craig of Radley, is not going to press his amendment, and we are content with the outcomes on this issue. This is the last chapter in the Armed Forces Bill, and we are pleased with where it has got to. We are pleased on this issue and on the other issues where concessions have been achieved. It has been very pleasing that the Bill has engaged all sides of the House, and the contribution made by noble and gallant Lords in this specialist area has been particularly useful and has added to our debate, improving the outcome. That is also true of other people with significant service experience who have contributed.
I, too, thank the Minister for the way in which he has handled the Bill, and I thank his staff. We on the opposition Front Bench have been able to give the Bill proper scrutiny, much of it in private, which has saved time in the House, because of the co-operation that we have had. We are impressed and delighted, like everybody else, with the way in which the Minister has handled and crafted the concessions. However, it is a matter of raw political reality that this concession has come forward because of the fear of defeat in the Division Lobbies. Many of us have worked in government and we know the importance that the political reality of defeat brings to discussions. I am sure that the Minister has taken this pressure and used it very carefully. It is a matter of raw political reality that, without the fear of defeat, the PJM medal would not be worn this Remembrance Day, and it is highly probable that without the pressure of potential defeat in the Lobbies many other concessions would have not come forward.
This is a good Bill about just causes, and it is a good Bill because it has been a product of very good debates, but it is also a good Bill because of the political pressure that we have brought to bear from these Benches. The House can be properly and justly proud of this Bill, and we on these Benches are proud of our contributions.
Lord Palmer of Childs Hill
I would like to thank all noble Lords and particularly noble and gallant Lords for their work, and also my noble friend the Minister. The point that I would like to make is that acceptance of the Malaysian medal was approved; it was wearing it that was not. That was a rather strange situation. My only comment at the lateness of this hour is to hope that my noble friend the Minister enjoys wearing his medal at the earliest opportunity.
Lord Astor of Hever
My Lords, the passage of the Bill through your Lordships' House has presented a number of challenges, and I am delighted that we have been able to resolve them. I am very grateful to the noble and gallant Lord, Lord Craig, and all those other noble Lords for their very kind remarks this evening. As ever, I am grateful to noble Lords on all sides of the House for their help, support and unfailing courtesy. I echo what the noble and gallant Lord, Lord Craig, said about the excellent team of officials, and I will ensure that his full appreciation and thanks are passed on to them.
I also thank my noble friend Lord Wallace of Saltaire for his consistent support to me all the way through the Bill. I very much appreciated that.
Finally, I must pay tribute once again to the Armed Forces. This Bill is for them, and I believe that we deliver it in good shape.
Lord Craig of Radley
My Lords, I thank all those who have spoken, and I thank particularly the Minister for the help that he has given. The hour is too late to go any further than that, other than to express my appreciation, and I beg leave to withdraw my amendment.