Baroness Young of Old Scone (Non-Afl)
My Lords, at this time of night I shall be brief and not repeat anything that has already been said. However, I wish to make effusive remarks about the Minister’s response to the case made by the Health Conditions in Schools Alliance and for bringing forward a government amendment to the Bill, for which we are grateful. I thank the Minister for ensuring that the indicative draft of the guidance was available before we discussed this element of the Bill.
I thank the noble Lord, Lord Kennedy, for proposing this very important amendment. He sought a response from the Minister on what happens if a school—schools now have a very clear responsibility to look after these children—fails to get an adequate input from the local health system in terms of support and making plans for individual children. From time to time staff at schools across the country say that they would like to provide a better response in this regard but are unable to do so because they do not get adequate training and support from the local health system. Therefore, this amendment is important as it would reinforce the existing duties under the Children Act—which, alas, are currently ignored—and make sure that a school is not put in the impossible position of having a statutory duty but no means of carrying it out if it is not given the necessary support.
School nurses are important but so are specialist nurses for various conditions because in many cases their specialist knowledge will be required to establish an adequate plan for each child. Therefore, this issue cannot be left simply to school nurses, quite apart from the workload issue that the noble Lord, Lord Kennedy, raised.
I know that this issue is of great concern to the trade unions. It was, indeed, their only stumbling block. I held the mistaken belief that the trade unions were not willing to take up this challenge on an ideological basis. However, their concerns were practical ones. They were very willing to see teachers give this support to children provided they were properly supported and trained to do so. Therefore, the question is: what does a school do if the NHS does not step up to the plate in providing training and support for it?
The indicative guidance rightly talks about the role of Ofsted in ensuring that schools meet this new duty. However, there needs to be further discussion between the department and Ofsted about the latter’s role and what it will be able to do in relation to this issue. The guidance says that inspectors are already briefed to consider the needs of pupils with chronic or long-term medical conditions and to report on how well their needs are being met. However, that was not quite the impression I got when I met the Chief Inspector of Schools a few weeks ago, so clarity is needed about what requirements will be laid on Ofsted, not perhaps in terms of this duty being fully inspected but at least the forthcoming guidance to inspectors should brief them on it. Perhaps at some stage an ad hoc report could be produced on how well the guidance is being implemented. I press the Minister to tell us what a school will do if it hits a brick wall with the NHS.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I am grateful to all noble Lords for their comments on Amendment 57C, tabled by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Howe, and to all those noble Lords who have brought these matters to our attention. We are in consultation on the guidance and we welcome all noble Lords’ comments on it and on all other matters. I hope that I can assure the noble Lord, Lord Kennedy, and other noble Lords that further primary legislation is not necessary.
Baroness Jones of Whitchurch (Lab)
My Lords, I did not want our relative silence on these Benches to be interpreted as meaning that we were not in full support of the noble Baroness’s amendment. She will know that we have consistently worked with and supported her on these issues. Because of the lateness of the hour, I do not intend reading the speech that I had prepared, but will simply say that we think that having a national anti-bullying strategy combined with the code of practice, in the way that is described in this amendment, is a sensible staged approach to dealing with this very sensitive and growing issue. We accept that head teachers and teachers must have some discretion, as I think the Minister said in Committee, but they also need help and support. This package is the right combination for that and I hope that the noble Lord is able to persuade us that the Government are taking this seriously going forward.
Lord Nash
My Lords, I am grateful to all noble Lords for their contributions to this debate and assure them that we take this matter very seriously. I thank in particular my noble friend Lady Brinton for bringing her experience and expertise to bear on these issues. I also thank my noble friend for meeting me recently and for helping me to better understand her very legitimate concerns about the impact bullying can have on the lives of children and young people. I know that she is aware that we share those concerns.
Although I am not persuaded that legislation is the right approach, those discussions have proved extremely useful in identifying gaps in our advice to schools and in helping us to understand how we can do more to address these important issues. As a direct result of the debates in this House and discussions outside it—with both my noble friend and other experts, notably the Anti-Bullying Alliance, which has always provided us with helpful and constructive input in the development of our approaches—we are committed to enhancing our advice to schools. I will say a bit more about precisely what we are doing in a moment.
The Government take a zero-tolerance approach to bullying and our advice to schools on this is clear and firm. I acknowledge that there is a place for legislation. All schools are required to have a behaviour policy which contains measures to tackle bullying, and we think that this approach is the right one. The noble Baroness, Lady Howarth, talked about these policies being on shelves but I do not think that, in the modern world, with the kind of pupils and inner-city issues that we have, any school can afford to have any of these policies on shelves. They are right at the forefront of practice and I know that bullying is something that all good schools take very seriously indeed. However, the national strategy that the amendment proposes could focus schools’ attention on complying with it as a tick-box exercise at the expense of allowing teachers to exercise their professional judgment, creativity and energy to tackle bullying as it presents itself in their particular school.
We had a question earlier today about Islamophobic bullying. Shortly after 9/11, outside Pimlico Academy in Lupus Street, which my wife and I sponsor, there was a fight between 200 non-Muslim and 200 Muslim pupils who just went at each other. It was basically a riot. There were police on horseback and ambulances. It was quite dreadful. Such issues are not easily sorted out by dusting bits of paper off shelves. I am not saying that having a strategy is not important, but that school has worked hard over a long period and I am pleased to say that racism there is a thing of the past. This is essential to all good schools.
However, it is important that schools are held to account for their effectiveness in tackling behaviour and bullying. That is why we reduced the reporting requirements for school inspections in 2011 to focus on the core business of a school: four core areas, of which one is behaviour and safety, instead of the previous 27. In setting out how inspectors should judge this, Ofsted’s inspection handbook includes explicit reference to considering types, rates and patterns of bullying. The noble Baroness, Lady Howarth, also referred earlier to friendship groups. School inspectors must consider how schools prevent and tackle bullying, and where necessary prompt schools to improve. This approach encourages schools really to focus on behaviour and bullying.
I know that concerns were raised in Committee that inspectors do not always see schools as they really are. Since the first Ofsted inspections in 1992, there has been a steady journey towards unannounced visits. Initially schools received more than a year’s notice of inspectors turning up. Over time, this shifted to eight weeks, and from 2005 to around two days. Under this Government, this has been reduced to almost no notice, with inspectors calling head teachers the afternoon before an inspection takes place. In December, launching his annual report, the chief inspector announced that where there were concerns about pupils’ behaviour, including bullying, schools could be subject to visits with no notice at all. I believe that these measures ensure that inspectors see schools as they really are; we no longer hear stories of pupils being sent to the ice rink for the day or asked to stay at home.
Our approach and strategy provide the right balance between requirements in law, flexibility for schools and strict accountability. My noble friend also proposed that a comprehensive definition of bullying be developed. We agree that there is a need to provide clarity for schools, but this is best done through advice rather than legislation. I know that noble Lords expressed concerns in Committee that the advice that we currently outline to schools does not include a reference to the imbalance of power present in many instances of bullying. I confirm that we are working closely with the anti-bullying organisations, and can reassure my noble friend and other noble Lords that we will incorporate an appropriate reference to the imbalance of power in our advice to schools.
In the light of previous debates in this House and subsequent discussions, we have identified how our advice could be further enhanced to address the concerns raised. We are creating an online fact sheet to inform schools about how they can support bullied children. This will include all the relevant information about and links to what steps can be taken to support children who are severely affected by bullying. It will incorporate information about in-school provision, SEN support and alternative provision for children severely affected by bullying. I hope that practical steps such as this will be welcomed.
I hope that noble Lords will recognise that the Government have done a great deal to address the issues around bullying, but we can go further—by acknowledging more explicitly, for example, that severe bullying can have a clear impact on a child or young person’s mental health. Therefore, I am happy to confirm to my noble friend that we will make it clearer in Special Education Needs: Code of Practice, which is a critical document for schools and other bodies, that bullying is one thing that might lead to a child or young person having special educational needs and that, where it does so, schools must take appropriate action. This can involve support from external agencies, if needed, whether or not a child has an education, health and care plan. In addition, we will make appropriate cross-references between the bullying guidance and the SEN code of practice to ensure that schools are clear about this point.
Baroness Jones of Whitchurch
My Lords, I move the amendment in the name of my noble friend Lady Hughes—who has asked me to speak on her behalf—and will also speak to Amendment 57F. These amendments seek to address the need for clarification and accountability in the exercise of the Secretary of State’s powers to intervene in the delivery of children’s services by local authorities.
Clause 82 amends the Education Act 1996 and the Local Government Act 1999 to the effect that when a Secretary of State intervenes in a local authority, usually in response to poor performance, any legislative provision applying to the local authority can be read as passing to a third party which has taken over the local authority’s functions and service delivery. Subsection (2) of Clause 82 applies these provisions to children’s services and subsection (3) to any best-value services across a local authority. I have to say at the outset that there is no disagreement with the need for intervention powers. It is absolutely necessary to protect services for local people.
In Grand Committee, we sought to clarify the effect of the Government’s intentions here and the Minister assured us then, and subsequently in letters to my noble friend, that the intention was simply a helpful clarification of the effect of a direction under the Secretary of State’s last-resort power and did not expand those powers. She gave the example of clarifying for a family court in the case of a care order or adoption that the court can legally recognise the decisions and arrangements of a third party which has taken over the local authority’s functions, even though that third party will be exercising legal responsibilities and powers vested in local authorities.
I am also grateful to the Minister that her officials met with my noble friend to discuss the clause in more detail. However, the Government’s clause still leaves some uncertainties about where the accountabilities lie following interventions. I apologise if this all gets rather technical, but it requires some further clarification. In essence, the clause as it stands leaves open the question as to where the statutory roles of the director of children’s services and lead member will reside after intervention and whether they, or the third party, are accountable for the way in which local authority functions are executed. Taken at face value, Clause 82(2), underpinning the roles of director of children’s services and lead member, could be read as transferring accountability to a third party. If so, the local authority would no longer be required to appoint to these positions and accountability would no longer rest with the local authority. The local authority would then effectively be severed from delivery of children’s services and accountability would reside with the Secretary of State and the third party.
These amendments do two things. First, they insert a process in which a specific decision is taken about whether the roles of the director of children’s services and lead member transfer to a third party following a direction. Secondly, they allow a local authority to make representations to the Secretary of State as to which functions are transferred to that third party and which remain with the local authority. This is a belt-and-braces amendment to ensure there will be no loose ends or lack of clarity as to where accountability resides, and for what functions, following a direction. It is necessary because while the Minister in her examples has sought to reassure us that the clause is very limited in effect, in fact the wording is very wide in scope and potentially goes far beyond the specific cases of family courts considering care orders and adoptions.
If the Minister is not minded to accept my amendment, perhaps she can explain why not and put on record the practical process that will take place, including discussion with a local authority, when a direction of this sort is under consideration. I look forward to hearing her response.
Baroness Northover
My Lords, I thank the noble Baroness, Lady Jones, for giving me the opportunity to clarify the scope of the Secretary of State’s intervention powers under Section 497A(4A) of the Education Act 1996 and Section 15(6)(a) of the Local Government Act 1999, as amended by Clause 82. Using these powers in a failing local authority would be a serious step, and it is right that we are very clear how they might be used. I hope to be able to satisfy the noble Baroness’s desire for such clarity.
Noble Lords will recall that these provisions are intended to put beyond doubt the Secretary of State’s existing powers to shift, in cases of very serious failure, the exercise of some of a local authority’s functions to a third party who will deliver them on behalf of the Secretary of State. Clause 82 clarifies the effect of the exercise of those existing powers—for example, in relation to care and adoption, and Ofsted’s powers to inspect the performance of the local authority’s functions—in whatever form they are delivered.
I will address each of the points in turn, because I know, as the noble Baroness mentioned, that meetings have been held with my noble friend, and that there is a wish that this be put on the record. That is what I shall do, if noble Lords will be patient.
Amendment 57E seeks assurance that a direction under subsection (4A) of Section 497A of the 1996 Act, as that section is amended by this Bill, would not automatically result in the transfer of the functions of director of, and lead member for, children’s services to the Secretary of State’s nominee. Amendment 57F does likewise for a direction under subsection (6)(a) of Section 15 of the 1999 Act.
I can be quite clear that a direction under the provisions in question would not result in an automatic transfer of the role of director of children’s services or of lead member for children’s services, to a third party who had taken on a local authority’s functions. That is, in part, because Sections 18 and 19 of the Children Act 2004, which set out the requirements on local authorities to appoint a director of and lead member for children’s services, are not functions which may be subject to a direction under subsection (4A) of Section 497A of the 1996 Act.
Following a subsection (4A) direction, the DCS and lead member would remain in place, although their responsibilities may be altered by agreement with the local authority as part of the transfer of functions from the local authority to the Secretary of State, or a nominee. The DCS and lead member would not, of course, exercise control over the local authority functions which had transferred to a third party following a direction under Section 497A.
Although the powers under subsection (6)(a) of Section 15 of the 1999 Act apply to Sections 18 and 19 of the Children Act 2004, I again reassure noble Lords that a direction under subsection (6)(a) would not result in the automatic transfer of those functions. If the Secretary of State wanted to transfer those functions to himself or a nominee, the direction would need specifically to set that out. I also point out that the amendment to Section 15 of the 1999 Act in Clause 82 of the Bill does not alter that in any way.
I also reassure the noble Baronesses that proposed new subsections (4AE), (4AG), (6E) and (6G) in their amendments, which are intended to ensure that the Secretary of State gives the local authority written notice of a proposed direction, are not necessary. Whenever in recent years we have contemplated issuing a direction, we have conducted initial discussions about its content beforehand. We have then formally given notice of our intention to issue a direction and formally invited representations from the local authority and other interested parties—I am glad that I am going to hand this to Hansard, so that they can make sure that the record is exactly as it is supposed to be. We will continue with the practice that I have just laid out.
Further, were we looking to transfer the exercise of some of a local authority’s functions to a third party, as these powers envisage, we would of course have to follow the provisions of employment law in respect of any employees. That would require consultation and appropriate due diligence around the terms of the transfer, which could only be done together with the local authority. In any event, in all but the most urgent cases, common-law principles of procedural fairness and good governance would require that notice of a direction be given to a council and an opportunity be afforded for representations to be made before a direction is given.
“Application of suspension etc powers to establishments and agencies in England
(1) In section 14A of the Care Standards Act 2000 (power of Welsh Ministers to suspend registration of person in respect of establishment or agency), in subsection (1)—
(a) for “Welsh Ministers” substitute “registration authority”, and(b) omit “for which the Welsh Ministers are the registration authority”.(2) In subsection (2) of that section, for “Welsh Ministers give” substitute “registration authority gives”.
(3) In section 15(4A) of that Act (duty of Welsh Ministers to give notice of decision to grant application for cancellation or variation of suspension)—
(a) for “Welsh Ministers decide” substitute “registration authority decides”,(b) for “they” substitute “it”, and(c) for “their” substitute “its”.(4) In section 20B of that Act (urgent procedure for suspension or variation etc: Wales), in the heading omit “: Wales”.
(5) In subsection (1) of that section—
(a) in paragraph (a) omit “for which the Welsh Ministers are the registration authority”, and(b) in paragraph (b)—(i) for “Welsh Ministers have” substitute “registration authority has”, and(ii) for “they act” substitute “it acts”.(6) In subsection (2) of that section, for “Welsh Ministers” in both places substitute “registration authority”.
(7) In subsection (4)(b) of that section, for “Welsh Ministers’” substitute “registration authority’s”.”
Lord Nash
My Lords, Amendments 57G and 64ZA complement those which I introduced in Committee to pave the way for the introduction of a new framework for the regulation and inspection of children’s homes. We have worked very closely with Ofsted on how the inspection of children’s homes should be improved.
Amendment 57G is intended to equip Oftsed with the powers required to make a prompt and timely intervention when it identifies serious concerns about the care of children. The amendment would extend provisions in the Care Standards Act that already operate in Wales to England to allow Ofsted to suspend a person’s registration in relation to a setting caring for children that is regulated under Part 2 of the Care Standards Act. This means a criminal offence would be committed if a registered person continued to operate the setting while their registration was suspended.
While this power could apply to any setting regulated by Ofsted under Part 2 of the Care Standards Act, for example a fostering service, we expect that it would be used almost always in relation to children’s homes, where Ofsted assesses that there is a need for urgent action to suspend a person’s registration while concerns about a home’s care are investigated.
At present, in England, if there is a serious incident in a home, Ofsted has the power only to cancel a person’s registration. This amendment would enable Ofsted to take action more quickly in cases where this is needed. For example, where there are allegations of abuse in a home, it might be appropriate to suspend a registration while these are being investigated.
Both we and Ofsted recognise that a power to suspend a person’s registration is a draconian one. We expect that moves to suspend registration would happen only on rare occasions where there were very serious concerns. Ofsted would take this action only if, following consideration of other enforcement options, it was judged to be necessary given the specific circumstances of the case.
Ofsted is committed to exercising this power in a fair and proportionate way. For example, we would expect inspectors, as far as is reasonably practicable, to contact a provider shortly before delivering a suspension notice. This contact would make it clear that the suspension would not formally start until the notice had been properly and formally served.
Ofsted already has a power to suspend early years services under the Childcare Act 2006. There is a protocol between Ofsted and the Care Standards Tribunal to expedite appeals against suspension notices by early years providers to ensure early judicial scrutiny of inspectors’ actions in these urgent and extreme situations. Ofsted expects to enter into a similar protocol with the tribunal concerning the new urgent suspension power that this amendment would introduce. Discussions about this are planned between Ofsted and the tribunal in the near future.
I hope that noble Lords will support this important amendment to introduce a new safeguard for vulnerable children so that Ofsted inspectors can take timely and rigorous enforcement action in those rare instances where it is required. I beg to move.
Baroness Northover
“Provision of free school lunches
(1) The Education Act 1996 is amended as follows.
(2) In section 512ZB (provision of free school lunches and milk at maintained schools)—
(a) in subsection (2)(a) after “subsection (4)” insert “or (4A) (or both)”, and(b) after subsection (4) insert—“(4A) A person is within this subsection if the person—
(a) is a registered pupil at a maintained school or pupil referral unit in England, and(b) is in reception, year 1, year 2 or any other prescribed year group at the school.(4B) The Secretary of State may by order provide for the following to be treated as persons within subsection (4A)—
(a) registered pupils, or any description of registered pupils, at a maintained nursery school in England;(b) children, or any description of children, who receive relevant funded early years education, or any description of such education, in England.(4C) In subsection (4A)—
“maintained school” means—
(a) a community, foundation or voluntary school, or(b) a community or foundation special school;“reception” means a year group in which the majority of children will, in the school year, attain the age of 5;
“year 1” means a year group in which the majority of children will, in the school year, attain the age of 6;
“year 2” means a year group in which the majority of children will, in the school year, attain the age of 7;
“year group” means a group of children at a school the majority of whom will, in a particular school year, attain the same age.”;
(c) in subsection (5), after ““prescribed”” insert “, “relevant funded early years education””.(3) After section 512A insert—
“512B Provision of school lunches: Academies
(1) Academy arrangements in relation to an Academy school or an alternative provision Academy must include provision imposing obligations on the proprietor that are equivalent to the school lunches obligations.
(2) “The school lunches obligations” are the obligations imposed in relation to maintained schools and pupil referral units in England by—
(a) section 512(3) (provision of school lunches on request), and(b) section 512ZB(1) (provision of free school lunches to eligible persons). (3) Academy arrangements in relation to an Academy (other than a 16 to 19 Academy) that are entered into before the date on which section (Provision of free school lunches)(3) of the Children and Families Act 2014 comes into force are to be treated as if they included the provision required by subsection (1), to the extent that they do not otherwise include such provision.”
Baroness Northover
My Lords, in September last year the Government announced their intention that all children attending state-funded schools in England in reception, year 1 or year 2 should be offered a free school lunch. Amendment 59ZA places a duty on all such schools to provide lunches to those children and also provides a power for the Secretary of State for Education to extend that provision to other age groups by order, subject to decisions by future Governments and the will of Parliament.
We know from pilot schemes in Durham and Newham, which commenced under the previous Government in 2009 and concluded under this one in 2011, that the provision of universal free school meals has the potential to deliver considerable benefits for children, and particularly for children from disadvantaged backgrounds.
One of the most striking positive effects demonstrated by the pilots was the impact of universal free school meal provision on educational outcomes. Independent evaluation showed that pupils were on average two months ahead of their peers in English and maths and that these improvements were most marked among children from less affluent families. Noble Lords may wish to note that these improvements were not reflected in a third pilot area, where free school meal entitlement was extended to more pupils but not offered to all children.
Other benefits demonstrated by the pilots included higher take-up rates of free school meals, including among that the group of pupils who had previously been eligible for a free school meal but had not taken one. This is important: we know, due in large part to the good work done under the previous Government, that school meals are far more likely to meet good nutritional standards than the packed lunches that children bring to school. Offering all infants a healthy lunch will allow schools to play their part in helping children to develop long-term healthy eating behaviours.
Noble Lords will also be interested to know that the pilots demonstrated certain social benefits. Universal free school meals help to engender a culture where children sit down to eat with classmates and teachers in a civilised environment. Shared mealtimes are a natural training ground for learning to talk, behave, take turns, be polite and share. The pilots showed that a universal approach was valued by parents and staff for building a school community and sense of cohesion and increasing equality and fairness.
We will support schools in introducing this. In his autumn Statement my right honourable friend the Chancellor of the Exchequer announced that over a billion pounds of new revenue funding would be allocated to this policy between 2014 and 2016. In addition, the Government confirmed that £150 million of capital funding would be provided by the Department for Education in 2014-15 to improve kitchen and dining facilities in schools.
Subsequently, the Department for Education has confirmed more details of how this funding will be allocated, including that special provision will be made in 2014-15 to assist small schools to implement this policy. The department will also, shortly, announce details of a comprehensive package of implementation support and advice to be targeted at schools that might be expected to find delivering this policy most challenging.
Head teachers need to know that the Government are as committed to this policy as we expect them to be. That is why we have concluded that this amendment is necessary to provide both certainty and confidence, so that head teachers can plan ahead.
This policy has been widely welcomed across the school food sector, by trade unions and by other stakeholders, including the Children’s Society. I appreciate the favourable comments from the noble Baroness opposite and from the noble Lord, Lord Laming, on the Cross Benches. We spoke to them about introducing the amendment at this stage and we appreciate their support in this. I am very pleased to put this amendment forward. I beg to move.
Baroness Jones of Whitchurch
My Lords, I welcome the amendment and welcome the coalition, belatedly, to the table of the free school meals cause.
As I told the Minister the other day, I am an inaugural member of the School Food Trust, set up by Labour after Jamie Oliver’s turkey Twizzler scandal. Therefore, I do not need to be persuaded of the importance of this announcement. When I was thinking how I might respond to this debate, I was initially tempted to run back through the history of this initiative, not least the Government’s early decision to cut the funding of the School Food Trust and the associated rollout of the nutritional standards. However, in the circumstances I felt that this was rather churlish. However the transformation of policy came about, it is absolutely the right thing to do. I agree with the Minister that it will bring health, educational and social benefits to this group of children. It will, I hope, teach them good eating habits which will stay with them and encourage them to continue eating nutritional school lunches in later years. It will also provide considerable savings to hard-pressed families who would otherwise have to pay for these meals.
The challenge now is to make sure that the policy is implemented successfully for September, and I very much hope that the Children’s Food Trust is able to play a major role in assisting that rollout. There will obviously be different challenges for different schools to adapt their kitchens and dining spaces to meet the new demand. I hope that schools, and particularly head teachers, embrace this challenge positively and do not try to cut corners. The school lunch has the capacity to be at the heart of the school’s community and brings a wealth of other benefits as well. I very much hope that in a short period the policy will justify itself. I am pleased that the amendment allows scope for extending the age group via secondary regulation in due course, and I am pleased to support the amendment.
Baroness Northover
I thank noble Lords for their welcome for this proposal. I look forward to hearing the report from Dagenham. The department will be very interested in that trial. I say to the noble Baroness, Lady Lister, that pupil premium funding will not be affected by the introduction of universal school meals for infant pupils. In particular, the funding for the next financial year 2014-15 is informed by school census data collected in the January 2014 school census. This census is taking place prior to the introduction of universal infant free school meals. In subsequent years, we will be gathering the same data in the school census on the number of pupils whose families are in receipt of the relevant benefits that currently entitle the children to a free school meal. This information will be used to allocate pupil premium funding, as well as other deprivation-related school funding.
In terms of evaluating the impact of this policy, it will obviously be carefully monitored. The universal free school meals pilot provided a full and compelling evaluation of the benefits and challenges of the policy, as I have just laid out. We will be measuring the take-up of lunches via the school census and are sure that others will want to measure the specific benefits arising from this policy.
There are currently no plans to extend the universal free school meals eligibility to further age groups. It will be for future Governments to decide whether they want to do so. However, we thought that it was important, while we were asking Parliament to consider legislating on the principle of this, to include an enabling power to give future Governments the flexibility to extend the policy using secondary rather than primary legislation. This of course will still be subject to the will of Parliament.
I think that I have covered everything, although I am not sure whether I have covered all the points raised by the noble Baroness, Lady Jones. If I have not, then, given the hour, I will write to noble Lords. Once again, I thank your Lordships very much for their welcome of this policy.
Baroness Howe of Idlicote
My Lords, I support Amendment 59A and I also strongly support Amendments 59B and 59F. I address this from the viewpoint of the children themselves. Children and young people care about the independence of the Children’s Commissioner and support the proposal to prevent any interference by government as set out in Amendment 59A.
In a briefing put together by young people in partnership with Save the Children, they say quite rightly that the commissioner is for them and that it is important that the Government listen to their views on the issue of independence. The young people understand the importance of the commissioner being free to do his job properly. In particular, they are worried about future Governments interfering in the commissioner’s work. Mohamed, aged 16, said:
“If the Commissioner’s full independence is not clearly set in stone then a new Government would be able to change its mind … If it’s not [written down in law] it could change in a few years-time. Even if the Children’s Commissioner has the freedom now to do what they think is right, there’s no guarantee it wouldn’t change”.
So young people are concerned that without this amendment, children may think that the commissioner is not a proper champion of their views and rights, and they may not put their trust in the commissioner.
Young people say that without a fully independent champion, children could grow up to feel disengaged from their community and local and national politics. Najib, aged 12, said:
“If the children’s commissioner isn’t completely independent then young people will feel like they don’t have a voice. When they grow up they may not have the confidence to speak out and join in as they’ve felt that no one has listened to them when they were growing up”.
I hope very much that the Minister will consider young people’s views on this issue and I very much support the proposal brought forward on this by the noble Baroness, Lady Massey.
Lord Nash
I thank the noble Baronesses, Lady Massey, Lady Lister and Lady Howe, and the noble Lord, Lord Ramsbotham, for their contributions. I will speak to the government amendments in more detail shortly, but I would first like to respond to Amendment 59A tabled by the noble Baroness, Lady Massey, and Amendments 59B and 59F tabled by the noble Lord, Lord Ramsbotham.
I am grateful to the noble Baroness for focusing our attention on the key issue of the independence of the Children’s Commissioner. As I stressed during the debate in Committee, in order for the Children’s Commissioner to have credibility with children and children’s organisations, and to meet international standards, we fully recognise that the commissioner needs to be—and be seen to be—acting independently from government. That is why we are removing a number of provisions in the existing legislation that call into question the commissioner’s independence, as recommended by John Dunford following his review. As a result, there is nothing in the legislation that allows the Government to determine what the commissioner’s priorities are, what activities he or she will undertake, or what timescales he or she will work to—these are all matters for the commissioner.
During the debates in Committee, both here and in the other place, the Minister for Children and Families and I provided reassurances on the process for appointing the commissioner, and on providing the commissioner with a sufficient budget. I am happy to repeat them again today. The Government fully recognise the need for the commissioner to be free from any political interference in carrying out his or her functions, and the arrangements in place to appoint the commissioner and provide him or her with a sufficient budget will ensure that this is the case.
I would like to reassure noble Lords that the commissioner’s appointment will be governed by the code of practice published by the Office of the Commissioner for Public Appointments, which ensures that such appointments are made on the basis of merit, following a fair and open recruitment process. This ensures that only those candidates judged by the OCPA recruitment panel to be “appointable” can be put forward for Ministers’ consideration. Further, we have given commitments that Parliament will be provided with an opportunity to comment on the job description and person specification before the post is advertised, and an opportunity to hold a pre-appointment hearing before the appointment is confirmed.
On the framework agreement, as requested by noble Lords in Committee, I have made available a draft of the revised framework agreement that sets out the relationship between the commissioner and the Department for Education. As noble Lords will note, the revised framework agreement includes clear statements about the commissioner’s independence from government.
Noble Lords will also note that, as requested by the Joint Committee on Human Rights, the draft framework agreement includes changes that mirror those made to the framework agreement between the Equality and Human Rights Commission and its sponsor department—changes that seek to ensure that the impact of public sector efficiency controls do not unreasonably constrain the commissioner’s independence.
I now turn to Amendment 59B, tabled by the noble Lord, Lord Ramsbotham, which seeks to add, “initiating and intervening in legal proceedings”, to the non-exhaustive list of activities that the commissioner may undertake in the exercise of his or her primary function, as set out in proposed new Section 2(3) of the Children Act 2004, inserted by Clause 86. During the debates in Committee, I said that initiating or intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function. The commissioner has intervened in legal proceedings on a number of occasions under the current legislation, and there is nothing in this Bill that changes that position.
As now, if the Office of the Children’s Commissioner wanted to bring legal proceedings, it would fall to the judge in the individual case to determine whether the commissioner had “sufficient interest” in the matter. However, the fact that the Children’s Commissioner will have a statutory role to promote and protect children’s rights, suggests that the commissioner would have a sufficient interest in any matter before the courts where children’s rights were involved. The question is not, therefore, whether it is possible for the commissioner to initiate or intervene in legal proceedings, but whether it is desirable to emphasise this aspect of the commissioner’s remit explicitly on the face of the Bill.
There are a number of reasons why I do not wish to do that. First, we have avoided adding to the list, in proposed new Section 2(3), of activities that are already implicit within the commissioner’s primary function. Secondly, while I agree that the commissioner should, in certain circumstances, be able to bring matters before the courts, I share John Dunford’s view that a decision by the Children’s Commissioner to initiate legal proceedings should not be taken lightly. We would expect any commissioner to use this power sparingly, given the range of functions and issues in which the commissioner is likely to take an interest, and in the light of his or her responsibility to make effective use of public funding.
Lord Ramsbotham
I am sorry to delay proceedings, but can the Minister, in the light of what he has just said, assure me that an incoming commissioner will at least be made aware of that provision, and that the assurance that he has just given to the House will be repeated in that briefing?
Lord Nash
I am delighted to give that assurance to the noble Lord. Thirdly, including an explicit reference to initiating and intervening in legal proceedings would raise expectations that the commissioner will take up legal challenges on behalf of any individual or group who brings a matter to the commissioner’s attention. The Office of the Children’s Commissioner is clearly not resourced to operate in that way, and it could end up wasting time defending decisions not to take up particular cases.
I turn now to Amendment 59F, also tabled by the noble Lord, Lord Ramsbotham, which would add categories of children—–namely, children in custody, children who have been trafficked and unaccompanied migrant children—to the definition at new Section 8A, which is inserted by Clause 93. In the Government’s view, it is not possible to define precisely in legislation every interaction that the commissioner and his or her staff might have with children; nor would we want to. What the legislation seeks to do, therefore, is to put down some clear markers that are designed to achieve particular objectives.
First, as noble Lords will be aware, there is a provision that prevents the commissioner investigating individual cases. This is specifically to avoid the commissioner getting swamped with individual casework at the expense of his or her strategic role. John Dunford’s report was clear that where commissioners had taken on a full ombudsman’s role, it had reduced their impact.
Secondly, as recommended by John Dunford, we have included provisions in the legislation that ensure, as far as possible, that the support provided to children within the Children’s Rights Director’s remit can and will continue under the new arrangements. Beyond that, we do not wish to try to enshrine in legislation what level of support the commissioner should provide to individual children who may contact the commissioner or his or her staff. It is inevitable, as now, that children will contact the commissioner through, for example, the OCC’s website. Where they do, we of course expect the commissioner to offer appropriate help.
In many cases, that help would involve signposting the child to information or support. In others, it would involve helping the child to access an existing complaints or advocacy service, while in other cases it may involve the commissioner providing support that is similar to the “advice and assistance” function that the CRD currently provides. Ultimately, if the commissioner felt that the child’s case highlighted a matter of wider strategic importance, he or she could conduct an investigation into that issue. Our view, therefore, is that it should be for the commissioner to determine what level of support to provide to children when they approach him or her. That is why we do not wish to describe how the commissioner should interact with children in legislation, beyond the two exceptions mentioned earlier.
I do not therefore believe that it is necessary to extend the definition at Section 8A to include the groups of children that the noble Lord proposes. The commissioner will have wide-ranging functions and powers to give him or her the flexibility to support children as he or she deems appropriate in the exercise of the primary function of promoting and protecting children’s rights. Many of those children will, in fact, already be covered by Section 8A because they are living away from home and/or are in receipt of local authority services. For example, children on remand to youth detention accommodation are treated as looked-after children.
For children in custody, there are already adequate complaints, grievance and disciplinary systems in place, which the noble Lord will be familiar with, in young offender institutions, secure training centres and secure children’s homes to enable young people to resolve issues relating to their detention. Advocacy services are also provided in YOIs, STCs and SCHs to assist young people in navigating the complaints, grievance or disciplinary systems. Advocacy is provided by Barnardo’s in young offender institutions and secure training centres, with local arrangements in place in secure children’s homes. If a young person is not satisfied with the outcome of a complaint, they are able to refer the issue to the Prisons and Probation Ombudsman, the statutory monitor or the local authority.
Not extending the advice and assistance role to children in custody does not mean that the commissioner cannot investigate matters within the juvenile secure estate as part of a wider investigation. In fact, the commissioner has already done so—for example, with the commissioner’s inquiry into the support available in the youth justice system for young people with mental health issues. So far as the Children’s Commissioner looking at new SEN support in custody is concerned, the key plank of these reforms is to make it clear that the Secretary of State cannot direct the Children’s Commissioner. However, if he or she wishes to consider the SEN reforms, he or she is of course able to do so.
Baroness Massey of Darwen
My Lords, I thank the Minister for that very thorough response. I am particularly pleased to hear that he says that there will be “particular regard” to the UNCRC and that there will be consultation with children enshrined in the law.
On the query about “affirmation on independence” and the lack of “prohibition”, maybe we should look at the wording. Maybe it is just a matter of words, but it is not how I read it in the first place. I accept that the Children’s Commissioner cannot realistically cope with individual cases. That would be far too big a burden and would, as the Minister said, “hamper” the effectiveness of the office. The noble Lord, Lord Ramsbotham, will correct me if I am wrong, but he and I are saying that we see the Children’s Commissioner as a guardian and monitor of children’s rights as well as a champion. We shall see about the issue of the appointment. I hope that the Minister will take note of our concerns on this.
I forgot to ask the Minister about the timetable for this appointment; I do not know if he can reply now or write to me and other noble Lords.
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“(1A) Section (Contact between prescribed persons and adopted person’s relatives)—
(a) so far as it relates to England, comes into force on such day as the Secretary of State appoints by order, and(b) so far as it relates to Wales, comes into force on such day as the Welsh Ministers appoint by order.”
“(3A) Section (Regulation of retail packaging etc of tobacco products) extends to the whole of the United Kingdom.”