Children and Social Work Bill [HL]

Lord Brougham and Vaux Excerpts

Report: 1st sitting: House of Lords
Tuesday 18th October 2016 Lords Chamber

[Lord Nash]

My Lords, I will speak first to Amendments 14, 15, 16 and 18.

In Committee, I was pleased at the support Clause 3 received and to see that the importance of making available the support of a personal adviser to all care leavers was widely recognised. In most family situations support tapers away as children and young people get older and gain more independence. The support we provide for 16 and 17 year-old care leavers clearly needs to be greater than it would be for the majority of 21 to 25 year-olds, and the legislation should follow that approach.

At the same time, we know there are some care leavers whose lives remain chaotic during their early 20s and who need quite intense support to bring stability to their lives, and others who will need support on specific things at specific times—for example, on release from prison, if they have a child, or if they lose a tenancy. In Committee, we spent some time considering whether making a personal adviser available on request was adequate to meet the needs of these young people, and whether if support were once declined there would be subsequent access to it. We recognise that no care leaver should feel that they cannot receive support between the ages of 21 and 25 because they had perhaps indicated at an earlier stage that it was not needed. In light of that, I am proposing amendments to Clause 3(7) to expressly clarify that local authorities must proactively offer support to every care leaver at least every 12 months. I trust noble Lords will welcome these amendments.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

I should advise the House that if Amendment 18, is agreed to I cannot call Amendment 19 due to pre-emption.

[Lord Ramsbotham]

My Lords, I rise to move Amendments 17 and 19. The purpose of Amendment 17 is both to ask to ask the Minister to clarify the intention behind subsection 3(b) of new Section 23CZB and to highlight a potential loophole which could risk local authorities opting out of their duties to former relevant children. It would appear that the intention behind that subsection is to enable a local authority to cancel the appointment of a personal adviser if at any time a former relevant child says that they no longer want one. However, the wording of the subsection is ambiguous. The phrase “if earlier” leaves open the possibility that a local authority might interpret it in a way that would enable it to refuse advice and support to a former relevant child who had previously said that they did not want a personal adviser but at a later stage requested advice and support. This opens another possible loophole of local authorities requesting that former relevant children sign a form on leaving care at 18 to say that they no longer need support. Would the Minister therefore be kind enough to clarify the Government’s intention and resolve any possible ambiguity in the wording of the legislation?

My Amendment 19 is made completely unnecessary by government Amendment 18, and so I propose not to press it.

--- Later in debate ---

[The Lord Bishop of Chester]

My Lords, I thank the Government very much for the change they are bringing in—

[The Deputy Speaker]

The Minister has responded.

[The Lord Bishop of Chester]

I thought the Minister was just making a clarification.

Education and Adoption Bill

Lord Brougham and Vaux Excerpts

Wednesday 16th December 2015 Lords Chamber

[Lord Addington]

I thank the Minister. I was going to thank him in my summing-up speech, but I do it now.

There are two clarification amendments in this group. Amendment 9 relates to the definition of a coasting school as having three consecutive years of failure. That has been suggested and referred to in regulation, but the amendment seeks to have that included in the Bill, or at least get confirmation that that is what must happen before this type of intervention takes place. Further reassurance would help on that.

Amendment 15A states that certain types of schools will never be affected by the definition of coasting. Once again, this is seeking clarification and reassurance. My attention is drawn particularly to special schools in this regard. The integration of special schools into the education system as a support structure is very important. Some local base will always be important. Who knows what will happen in the future, but under the current structure, it would be appropriate to spell that out more clearly.

The more substantive amendment as far as I am concerned is Amendment 15. When drawing up the definition of a coasting school, a school that is in the throes of failing or at least stagnating, what does one look at? It is quite clear that academic results will be a factor and I have included that in a small list. Lists are of course imperfect, but they are a starting point for discussions. But other school activities are also important and I offer three further examples. One would be arts and sports. If there is exceptional activity in that area, but the academic side is not great, are you in danger of throwing the baby out with the bathwater? If schools are doing something that is good, do we endanger it with a change of school status, organisation and ethos? Any time we do that we will presumably throw everything into the melting pot and changes will have to be made to address something. By changing that structure we may get rid of something good.

The same argument could be made about placement in further education and/or school activity after that. If we have established a good pathway, are we in danger, if we change that, of damaging this process? I still regard apprenticeships as something of a work in progress, but they are lauded by all. If a particular school is doing very well at getting people into apprenticeships, surely that deserves to have some special attention paid to it.

I do not think this is a particularly radical thought, but I have not heard conclusively what we will do if we get these very great gains and positives; will we throw them away? I remind all noble Lords that we have heard much about how schools should not just be chasing grades. If the target is getting definite C grades at GCSE, which is one that is often referred to, just chasing B grades at GCSE is not that much better. It is for the person getting the grades, but outside that, are we actually getting rid of something else?

I beg to move Amendment 8A and I look forward to all the Minister’s replies on this group.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

I advise the House that, if Amendment 8B is agreed to, I cannot call Amendments 8C to 9A inclusive, due to pre-emption.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I shall speak to my Amendments 10, 11, 12 and 13 in this group, where we are essentially concerned with coasting and its definition. As we said in Grand Committee, we are particularly concerned to see that the definition of coasting is subject to appropriate parliamentary scrutiny and that parents are both kept fully informed and involved in what is happening if their school is defined as coasting. My amendments make it clear that regulations must be laid in order to define coasting and that the affirmative procedure must always be used.

I am, of course, grateful to the Minister for government Amendment 15B, which goes some way towards this by ensuring that the first use of regulations will be subject to the affirmative procedure. When the regulations are laid we will be looking particularly for assurances that all schools will be covered by the definition of coasting, including those which admit a large number of high-ability pupils.

We also discussed the issue of consultation with parents in Grand Committee. The Minister’s noble friend Lady Evans said that,

“once a school has been notified that it is coasting, we should trust the governing body to engage parents as they see fit”.—[Official Report, 5/11/15; col. GC 415.]

However, in the light of discussions, she then said that she would see whether the Schools Causing Concern guidance would be sufficiently strong to ensure that parents were aware that their child’s school had been identified as coasting.

I am grateful for government Amendment 20, but I have a couple of questions for the Minister. I ask him to accept that the wording of government Amendment 20 is around a duty to communicate information about plans to improve a school, not about consulting parents or taking account of what they say. Will the Minister explain why the Government have decided that the duty should be about only communicating information, rather than an actual consultation with parents? Can he also confirm that Amendment 20 applies only to maintained schools which are going to be converted into academies? As I read it, it applies only to forced academisation under Clause 7 and not to those institutions which receive a coasting notice or warning notice where it does not automatically follow that academisation would take place. Is there not a defect in the amendment since it does not cover all schools? He made it clear in Grand Committee that some schools identified as coasting then might well be issued with a warning notice, but enforced academisation might not follow because presumably they were improving in the light of receiving it. I still think that there is an issue in this around parents being consulted at that stage.

Will the Minister also explain the term “registered parent”? I am not an expert in education law, but reference is usually made to registered pupils and relevant associated adults as having parental responsibility, so what does “registered parent” mean? I had not realised that as parents we are registered parents, which I think has a sort of Orwellian ring about it.

We then come to Amendment 24, to which the noble Lord will refer, but perhaps I may put some questions to him about it because it is relevant to my own amendments. Again, I am grateful that we will now have in the Bill the fact that the academy agreements will ensure, as I understand it, that academies which are the cause of concern will be treated in the same way as maintained schools when it comes to issues around coasting. Overall, the amendment is very welcome, but I have three points that I should like to raise with the Minister.

First, my reading of the amendment is that it applies only to academy schools and alternative provision academies, but not to 16-to-19 academies, which I understand are not defined as schools and are not in the further education sector but are the bodies which sixth-form colleges have been invited to join in order to get VAT rebates. It is very welcome that an avenue has now been found for sixth-form colleges to get these rebates, so there is a question of why, on the face of it, 16-to-19 academies have been left out of this definition. Can the Minister also confirm that proposed new Section 2D will be used retrospectively to override private contracts between the Secretary of State and academy trusts for all contracts?

I want to raise again the issue of early academy agreements, because in a sense we have academies and we have agreements, and now we are to have legislation that applies to those agreements. My understanding is that on the relationship between early academy agreements and the role of articles of association, originally the articles had to be approved by the Secretary of State and formed annexe 1 of the funding agreement. I understand that the articles of association no longer have to be approved. The earliest ones enabled the Secretary of State to parachute directors on to the boards of academy trusts where the existing directors were not taking seriously a warning notice. Does this provision apply to the articles of association as well as the funding agreement in those cases?

Finally, I note that the last line of Amendment 24 refers to the Education and Adoption Act, as it will be, coming into force in 2015. With the best will in the world, the Bill will not receive Royal Assent by the end of this year.

I am grateful for the two amendments which have been brought forward by the Minister, but they are technically complex. He may well not be able to answer all my detailed questions today, so would he be prepared to let us come back to this at Third Reading so that we can have another debate on these issues? I would be grateful for that.

Small Business, Enterprise and Employment Bill

Lord Brougham and Vaux Excerpts

Wednesday 14th January 2015 Grand Committee

Relevant documents: 11th and 13th Reports from the Delegated Powers Committee

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

My Lords, if there is a Division in the Chamber, the Committee will adjourn as soon as the Bell rings and resume after 10 minutes.

Clause 38: Regulations about procurement

Amendment 35D

Moved by

Children and Families Bill

Lord Brougham and Vaux Excerpts

Monday 9th December 2013 Lords Chamber

[Baroness Hughes of Stretford (Lab)]

My Lords, I would like to speak to Amendments 4 and 5, which variously attempt to circumscribe the power that the Secretary of State is taking in Clause 3.

Clause 3 grants the Secretary of State a new power to force local authorities to franchise out adopter recruitment services, either to another local authority or to a registered adoption agency, by amending Chapter 2 of Part 1 of the Adoption and Children Act 2002. The new section inserted by Clause 3 provides the Secretary of State with the power to direct the outsourcing of local authority adopter recruitment functions, either from individual named authorities under subsection (3)(a) or from classes or groups of local authorities under subsection (3)(b) or from all local authorities at once under subsection (3)(c). The important aspect is not the power to outsource itself but the manner in which it would allow the Secretary of State to make change on a large or even national scale at once through a direction. The Secretary of State, in issuing a direction as opposed to bringing forward primary or secondary legislation, would not obviously have to subject himself to any parliamentary scrutiny, and Members in either House would not have the opportunity to question or amend the changes. This is the nub of our concern.

Our Amendment 5 would have the effect of deleting subsections (3)(b) and (3)(c) and therefore remove the power of the Secretary of State to direct outsourcing from classes or groups of local authorities or from all local authorities at once. We tabled this amendment in Committee to probe the Government’s intentions and we do not intend to press this amendment here. It was tabled at an early stage following Grand Committee to signal our continued concern and before we were able to see the Government’s response to that debate.

At the meeting last week, Edward Timpson said that there would be an amendment to respond to those concerns and we wanted to see the terms of that amendment before finalising our position. We were hoping that the Government would address those concerns by amending the clause to make subsections (3)(b) and (3)(c) subject to an affirmative resolution order. However, unfortunately both the government amendment and the policy statement that was issued alongside it really are a wholly inadequate response to what noble Lords across the House have been saying. Government Amendment 6 would simply delay the implementation of subsection (3)(c), which provides the power to outsource to all local authorities at once. Along with the government amendment, there was also a written commitment to report that decision in some as yet unspecified way. Delaying implementation is really neither here nor there—it is irrelevant—and reporting to Parliament falls far short of parliamentary scrutiny.

The policy statement that was published does not explain why the Secretary of State is seeking power through a direction rather than through secondary legislation but simply restates the arguments about the need to reshape the market in adopter recruitment. That is an argument with which we would not necessarily disagree but in support of which the Government have provided no evidence. These are important issues, but they are wholly irrelevant to our point that taking powers to institute major change to the national system of adopter recruitment by direction is a completely unacceptable way to treat this House and the other place. We cannot support the Government’s amendment.

Therefore, our Amendment 4 would retain the powers in subsections (3)(b) and (3)(c) but make their implementation subject to an order by affirmative resolution in both Houses of Parliament. We all support efforts to improve adopter recruitment if this will mean more children finding good homes. The Government’s policy statement sets out why the Government believe that major structural change may be necessary to address the shortfall in adoptive parents despite the 34% increase in the last two years, which is a very welcome improvement. However, even here the statement is contradictory on the role of the powers in Clause 3 in reshaping that market. Paragraph 11 says that the purpose of Clause 3 is to provide a powerful market-shaping lever to help restructure fundamentally the adopter recruitment system, but paragraph 12 says that, in moving towards the Government’s vision for that restructured system, Clause 3 is not seen as the sole or even the principal driver of reform—its role is to drive change only if there is little or no progress in reshaping the structure of the market and reducing the shortfall of adopters. That is because, as the Minister admitted in Grand Committee, Clause 3 is not of itself a solution to the problem of the shortfall of adopters that the Government have identified; Clause 3 itself cannot change that market. Indeed, it can be deployed only if and when it has been demonstrated that adopters can be recruited in sufficient numbers by different arrangements.

The policy statement goes on to outline the real levers for change which are happening now on a voluntary basis and which do not need legislation—for example, the consolidation in the local authority sector through mergers such as that involving St Helens, Warrington and Wigan in my region, the north-west, and the development of commissioning and provider relationships between local authorities in adopter recruitment. The adoption leadership board is encouraging and facilitating these developments, as well as supporting partnerships involving voluntary adoption agencies.

If these developments were successful, one could envisage that the system would have changed to such an extent that it reached a tipping point at which the use of the power in, say, subsection (3)(c) might make sense. However, if these developments were not successful, what would the Secretary of State do? Would he outsource adopter recruitment from all local authorities anyway when there was no credible alternative? That would be wholly irresponsible and I cannot believe that the Government would take such a risk. Either way, the point is that there really ought to be parliamentary oversight at that point.

The point is that mobilising the power in Clause 3 becomes necessary, and indeed possible in practice, only if and when the developments between local authorities and the voluntary sector reach a critical mass such that wholesale change across the country is a viable option. That is my concern with Amendments 4A, 4B, 4C and 4D. Together, they would have the effect of applying the affirmative resolution procedure only in the event of the Secretary of State wanting to outsource these adoption functions from all local authorities simultaneously—that is, using the power in subsection (3)(c). If these amendments were agreed, the Secretary of State would still be able to direct significant proportions of local authorities in groups under the power in subsection (3)(b) and require them to outsource their adoption functions. For instance, he might require that in respect of all shire counties or all metropolitan authorities. Indeed, by announcing three or four successive directions, each of which related to a large group of authorities, the Secretary of State could effectively sweep the country without any parliamentary scrutiny. In other words, by using a few directions under subsection (3)(b), he could achieve what I think we all agree we want to prevent, which is the use of subsection (3)(c) without any scrutiny.

In my view, it is not logical to try to apply the affirmative resolution to subsection (3)(c) but not to do so also to subsection (3)(b). The effect of that would be not to constrain the Government at all, because they could still use the power in subsection (3)(b) successively to include all local authorities. That is my big concern, and it is expressed and supported by organisations in the sector such as Barnardo’s.

We believe that, apart from in relation to individual named authorities under subsection (3)(a), we should expect the Secretary of State to come to Parliament and, via an affirmative order, outline the progress that has been made and to answer the questions that Members would inevitably have—questions such as how secure the changes are, what the national picture is in terms of the number of consortia recruiting adopters, how many adopters are being recruited, and whether the capacity of the voluntary sector has grown and what role it is playing. The voluntary agencies and local authorities might have issues that they would want us to pursue, as would be normal. There would be many legitimate questions, and answers to them could be put on the record.

The Government are right to address the problem of insufficient adopters. If they wish to review the adopter recruitment system and propose something radically different, they are entirely within their rights to do so. However, they should not try to instigate radical change to a national system on the judgment and pronouncement of an individual Secretary of State. They should come to Parliament so that those proposals could be properly debated and scrutinised in the normal way. That is all we are proposing, and I think it is very reasonable and very normal. I beg to move.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

I should advise the House that if Amendment 4D in this group is agreed to, I cannot call Amendment 5.

[Baroness Meacher]

My Lords, I rise to speak briefly in support of Amendment 4, to which I have added my name. The noble Baroness, Lady Hughes, has set out the arguments very clearly and I do not need to take up more than very little of your Lordships’ time.

I understand that the intentions of the adoption clauses in the Bill are to improve the adoption system and to tackle the shortage of adopters. I am sure we all agree with that. Increasing the number of looked-after children appropriately and successfully placed for adoption must of course be a priority, and, again, I am sure we all agree with the Government about that. The question is whether issuing ministerial directions affecting adoption services across swathes of the country without parliamentary scrutiny is a desirable way forward.

If local authorities were removed from the adoption roles, as envisaged in Clause 3, the voluntary adoption agencies would need to increase their capacity fivefold, as I understand it. We could expect severe disruption of the system and a serious shortage of adopters for some years in the local authority areas affected. We would feel content if named authorities were dealt with in that way, because presumably there would be very serious issues in those authorities, but the idea of blanket shifts in this direction, using directions without any parliamentary scrutiny, sounds disproportionate.

My second concern is that Clause 3 risks fragmenting the system, as all councils would remain responsible for placing children for adoption and matching them with families. My understanding is that adopter families greatly value having continuity of social workers through the entire system and that they would not welcome changes simply because of alterations to the system as envisaged under Clause 3.

If a local authority fails in its duty in the adoption field, it is clearly important that the Government are able to intervene, and of course they can under Section 7A of the Local Authority Social Services Act 1970. Also, as has already been said, the amendment does not touch the right of a Secretary of State to intervene without any parliamentary involvement with directions in relation to specific named local authorities.

I understand that the Government have accepted the principle of our amendment in relation to directions affecting all local authorities, as the noble Baroness, Lady Hughes, said, but not in relation to directions affecting one or more descriptions of local authorities, which I understand could affect, for example, all boroughs throughout the country. Perhaps the Minister can explain why it is right and proper to have a statutory instrument laid before Parliament and approved by a resolution of each House of Parliament in relation to changes applying to all local authorities when the same principle is apparently not acceptable for directions applying to all boroughs, for example—and perhaps some weeks later all county councils and all other specific classes of local authority.

I confess that I am somewhat confused by the apparent lack of logic in the Government’s position. Does the Minister accept that the amendment does not prevent reform but merely ensures proper parliamentary oversight in a more consistent way than he currently envisages?

I hope that the Minister will be willing to think again and explore ways in which he might come close to meeting this amendment—I was going to say half-way but I do not think that that would work either. What we really want is parliamentary oversight if more local authorities than can be reasonably named are going to be affected in this way.

Education Bill

Lord Brougham and Vaux Excerpts

Monday 12th September 2011 Grand Committee

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

My Lords, if there is a Division in the Chamber, the Member of the Committee who is speaking should stop doing so quickly and we will adjourn for 10 minutes.

Clause 41 : Inspection of further education institutions: exempt institutions

Amendment 122ZB not moved.

Education Bill

Lord Brougham and Vaux Excerpts

Monday 4th July 2011 Grand Committee

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

My Lords, we have done as much as we can to make more room for your Lordships by providing smaller chairs. That is all that we can do. If noble Lords consider that it becomes too hot in this Room, I shall allow them to take off their jackets if they so wish. It is the Chairman’s prerogative. If there is a Division in the Chamber, I shall ask the noble Lord who is speaking at the time to cease speaking and we will resume after 10 minutes.

Clause 4 : Exclusion of pupils from schools in England: review

Amendment 37

Moved by

--- Later in debate ---

[Baroness Walmsley]

My Lords, I shall speak also to Amendments 38, 40, 44 to 47, 53 and 55 to 59 in my name.

I thank the Minister for the letter that I received today following our debates on Thursday. I particularly welcome the pilot to which he referred that allows children to apply in their own right to the Special Educational Needs and Disability Tribunal, with the possibility of that being extended across the country. He also referred to the possibility of regulations to allow them to appeal in their own name to the independent review tribunals when they come into force, and which we are about to debate. I should point out, however, that it would be discriminatory if children were not allowed to appeal.

I and others have been very troubled by the proposed changes to the right of appeal against exclusions. None of us wants to undermine the authority of head teachers and we understand their concerns. However, the fact that some appeals succeed indicates that not all decisions to exclude are correct. The effects of an exclusion on the life of a child are so extreme that it is vital to get these decisions right. I appreciate the Government’s attempt to put some sort of appeal in place in the form of the independent review panels but, frankly, that is not really good enough. I believe that if the appeals go to the right body with the right powers, expertise and experience, all will be well and justice will be done.

These amendments remove the education review panels created by the Bill and replace them with the right for all excluded pupils to appeal against permanent exclusion to the First-tier Tribunal for Special Educational Needs and Disability, as consistently recommended by the Administrative Justice and Tribunals Council. Here is the problem: the new review panels can only uphold the decision to exclude, recommend that the governing body reconsider the case or quash the decision and order the governing body to reconsider where it finds the decision to be,

“flawed when considered in the light of the principles applicable to an application for judicial review”.

The new review panels will not have the power to direct reinstatement. They will have less scope within which to operate and make decisions, but the nature of those decisions will be increasingly complex because they will have to decide whether the governing body’s decision was flawed in the light of the principles of judicial review. The Joint Committee on Human Rights and the AJTC have concluded that this does not provide adequate access to a fair and independent tribunal or an adequate remedy, and is contrary to Articles 6 and 13 of the ECHR.

There are many unanswered questions, including how the recommendation or direction to review will operate and the consequences of a governing body not complying with a recommendation or reaching the same decision to exclude again, following a direction to review. What happens to the pupil? Do they get another appeal? What timescales will operate and how do budgets cope with these additional procedures, especially given the additional powers given to the review panels to adjust school budgets, following a permanent exclusion?

One might ask: does the right of access to a court or tribunal apply to school exclusions? The Government state that it does not because of R (on the application of LG) v Independent Panel for Tom Hood School, decided in February 2010, which found that exclusion is not determinative of a civil right to which Article 6 applies, and Simpson v UK, which found that Article 6 does not apply to educational disputes. However, in Oršuš and Others v Croatia, decided a month later in March 2010, the European Court of Human Rights stated that Simpson v UK was no longer good law, so that Article 6 does apply to educational disputes. In Oršuš, the dispute related to discrimination. The JCHR is of the view that, if Article 6 applies to discrimination in schools, it would also apply to exclusions, which is a strong case. In Oršuš, the court also referred to its case law, which establishes that where a state confers rights that can be enforced by a judicial remedy, those rights can in principle be regarded as civil rights to which Article 6 applies. So the judicial review bit is very significant.

The JCHR is of the view that in a case of permanent exclusion, the right in question is not just the right to an education but the right to continue to attend the school at which the child is enrolled. That right is enforceable before the ordinary civil courts by way of judicial review. The JCHR therefore finds that, as a matter of convention law or of the common law, the right to access to an independent court or tribunal applies to permanent exclusion from school.

Therefore, we now need to ask whether the new review panels are really an independent and impartial tribunal. The Government’s view is that they are. However, the review panels will be able only to quash a decision and order reconsideration. That does not create the possibility for a proper review of the facts, so does not meet the requirements of a fair trial. Given the consequences of exclusion, it is especially important that the cases are examined carefully to ensure that the decision was correct and can be justified, as I said.

The AJTC has the statutory remit to keep under review the administrative justice system and the constitution and workings of tribunals within its oversight. It has taken a keen interest in the operation of school exclusion appeal panels for some years, and has concerns about the Government’s proposals. It notes, as has been mentioned in Committee, that 70 per cent of permanent exclusions affect children with special educational needs. It has consistently recommended that all appeals against permanent exclusion should be heard by the First-tier Tribunal, which it points out can easily be renamed the “first-tier tribunal (education)”.

The AJTC notes that the Government’s proposals are based on the assumption that all exclusions concern children who have been violent against teachers or pupils. That is not the case. I have here a table that shows exclusions in 18 local authorities across the country and 82 exclusion appeals in a particular year, of which 22 were successful. Of the 82, just under 80 per cent were for violent offences; one in five was for non-violent offences.

The AJTC has found that the small percentage of exclusions which go to appeal, which is around only 9 per cent, are more likely to be cases where the parent feels a real sense of injustice. It is therefore interesting to look at the reasons why some appeals succeed. The majority succeed either because the panel did not accept, on the evidence before it, that the pupil had done what he or she was alleged to have done; or because exclusion was a disproportionate punishment for the alleged offence.

A couple of other points need to be made. The Government claim that the SEND reviews take too long. It is true that there is clearly room for improvement, but they are piloting an eight-week turnaround time for appeals, which is very much better than they have been achieving. Secondly, since 70 per cent of all exclusions concern SEN and therefore go to the First-tier Tribunal anyway, it would be much more economical for all exclusion appeals to be heard by the tribunal, instead of requiring each local authority to set up and operate a separate system of review panels to deal with only 30 per cent of the total number of appeals. Also, I regard it as discriminatory to allow SEND pupils to apply to a proper tribunal, while fully able pupils can apply only to a panel with reduced powers.

I have tabled two groups of amendments that do roughly the same thing. I shall mention the difference. Amendments 37, 53, 55, 56, 58 and 59 have been proposed by the AJTC. The rest achieve roughly the same outcome but with one small difference. My noble friend Lord Storey will speak to Amendment 47 in this group, which covers a slightly different matter and has to do with the fine.

What do my groups of amendments do? The right of appeal to the First-tier Tribunal is separated in the Bill from the power to exclude, since this would have the effect of not requiring the tribunal to have regard to the Secretary of State’s guidance, and so maintain the tribunal’s independent discretion. The AJTC group gives the tribunal the power to state that reinstatement would be appropriate but is not practicable in the circumstances. This could happen if, for example, the pupil, parent or guardian does not want reinstatement, even though they have a right to it, but has brought the appeal because they want to state their case. It could happen where relationships have broken down to the extent that it would be more in the interests of the child and the rest of the school community if he were to go elsewhere. The other group of amendments does not give this power, but the tribunal should have it; it is crucial. Where relationships have broken down to such an extent that the head, for various reasons, does not want to let the child back into the school, this would give the tribunal the opportunity to take that into account and make the case that the child has been unwarrantedly excluded, without insisting on reinstatement.

Should the department maintain its argument that sending all exclusion appeals to SEND tribunals suggests that all exclusions concern children with SEND, this could easily be remedied by changing the type of tribunal. This may require a consequential amendment, but I am advised by the Public Bill Office that this could be tabled at a later date. I am also advised that consequential amendments to Schedule 1 may be needed. Again, these could be tabled at a later date when the fate of these amendments is known.

I have received a note of support for these amendments from the National Governors’ Association, which says that the majority of its members support the right of appeal and think that the current government proposals to change to a review panel will be more bureaucratic, and will cause more work, delay and confusion for the parties concerned. I hope I have made the case, albeit rather long-windedly, that justice requires some changes to the proposals in Clause 4. I beg to move.

[The Deputy Chairman of Committees]

I should advise the Committee that if this amendment is agreed I cannot call Amendments 40 to 47, inclusive, for reason of pre-emption.

[Baroness Hughes of Stretford]

My Lords, I pick up initially on some of the points that were made previously, and which the noble Baroness, Lady Walmsley, has rehearsed. We start from the recognition that a permanent exclusion can have a significant impact on the life of the excluded child, both in the short term on their education, and in the long term. In other words, a permanent exclusion is a very significant decision in the life of that child. It is very important that, in taking such profoundly significant decisions, it should be evident to everybody involved, including parents and children, that there is a process of natural justice whereby schools not only act fairly but are transparently seen to act fairly.

We have all variously recognised some of the dilemmas and difficulties for schools. However, exclusion without the right of appeal to an independent arbiter, with the possibility of reinstatement, is not a positive example of fair treatment. It sets a bad example to the very children whom we are seeking to influence, telling them that this is how things can be done when it suits the authorities.

My second point is one which we started to rehearse when we debated this issue last week but which I think we need to explore further. We know that, even now, schools permanently exclude a disproportionate number of very vulnerable children from specific groups. Last time, we talked a lot about children with special educational needs and disability, and we heard the figures for the number of those children who are excluded. However, there are other groups. The Runnymede Trust has pointed out that in 2008-09 more than 16 per cent of all black Caribbean boys were excluded compared with 8 per cent of white boys—that is, double the proportion of black Caribbean boys. Gypsy, Roma and Traveller children have similar problems, as do looked-after children and those in care.

--- Later in debate ---

[The Deputy Chairman of Committees]

My Lords, some of you might have heard buzzing noises, sounding like bumble-bees, coming out of the speakers. That is because some people have got mobile telephones in their pockets and they are too close to the microphones. Could we leave our telephones well away from the microphones or even switch them off for a little while?

[Baroness Morris of Yardley]

My Lords, I support the sentiments behind these amendments, and those in the opening remarks of the noble Baronesses, Lady Walmsley and Lady Hughes. Some of these amendments are quite technical, but there is something underpinning them in that the proposals before us are, first, unjust, and, secondly, not the best way of dealing with a significant problem. In particular, I support the group of amendments that give a right of reinstatement if an appeal should be successful.

I invite the Minister to revisit the Government’s assumptions that brought about this group of amendments. It strikes me as the sort of thing that is great in opposition but which you hope that people have realised is not very good by the time they get to government. Its starting point was something that we can all share: there are children whose behaviour is such that they ought not to be in schools. They ruin the educational chances of other children and make the lives of teachers a misery. Nobody ought to have to put up with that.

There is another starting point that I support: that the head needs control of their own school. They need to be able to set the rules and regulations. Within a framework their writ must run. That is the nature of leadership. Where this went wrong to some extent is that there is a feeling out there that the problem of reinstated children is bigger than it actually is. Somebody will quote the figures at some point, but it is not a big issue. It does not happen often. On most occasions, the tried and tested system which will now be repealed completely has worked well. Schools, parents, governing bodies, head teachers and pupils will on the whole say that it works well. In any structure in a social organisation like a school or society, there will be times when it does not work well, is a bit frayed at the edges and you might want to second-guess a judgment. We should always try to make that better, to improve the law and improve the process.

I do not know how the Government have concluded that this is the way forward from there. What I really want to test with the Minister is that there seem to be two either/or assumptions underpinning this bit of legislation. The first is that heads are always right and pupils are always wrong, which is a case of infallibility all over again. The second is that even if heads are wrong, we must not admit it. If one of those two assumptions does not underpin this set of amendments, I do not know what assumption does. Both are deeply flawed. I hope that I do not have to say more than “heads are not always right”. I have taught where heads have made the wrong decision about exclusion; sometimes there have been sets of circumstances. It has been absolutely right that the child has been reinstated, and the school has not collapsed. Nobody can say that the head is always right.

I agree about the power of the head, but it must be about having a set of rules that the school community and the parents have bought into, and about enacting those rules. I do not agree with this notion of leadership and headship which says, “I can make the rules up as I go along, and if I decide that you have broken them then I can act accordingly”. It is only by giving that sort of power of rule-making to the head that this legislation makes any sense.

Let us say that we do not agree that heads are always right. I sense that where the Government are coming from is that, in order to support heads, we must support their every decision. That is a miscalculation and a misjudgment, and I choose my words carefully. There are heads in this room who will tell me whether I am right or wrong in this but, to be honest, if a head teacher needed this sort of legal protection to keep order and discipline in their school, I would question the quality of the school leadership. A half good head teacher can manage a reinstatement and the house will not fall down. What seems to be feared here is that, if a reinstatement goes ahead, the head will lose control and authority within the school. Good heads do not do that; they manage it, because exclusion is not the only way in which to ensure discipline and good behaviour in schools.

If we make laws to protect weak heads so that they never have to admit that they are wrong, we will not be producing laws that are good for discipline in schools. We need laws that give heads the right to run their schools, and in our utterances and judgments we always need to support heads in what they do. They live in the real world; the children live in the real world; the parents and governors live in the real world, and nowhere else in the real world is someone proven innocent but not given the right to reinstatement.

Academies Bill [HL]

Lord Brougham and Vaux Excerpts

Monday 28th June 2010 Lords Chamber

[Baroness Morgan of Drefelin]

My Lords, the amendments in this group are probing amendments to understand why the Government have chosen the period of seven years for the academy agreement, not six years or eight years, to understand what evidence they have chosen to support that choice and to probe the direction that the agreement flows in. If a new academy is formed through an academy order and a funding agreement for seven years is established, how can such an institution, if it wishes, revert to the maintained sector? Is it a one-way street or a two-way street? What are the safeguards to ensure that an institution is not stuck as an academy if it wants to come back? I hope that the Minister will be able to furnish us with the evidence on this matter. I beg to move.

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

If either Amendment 88 or Amendment 89 is agreed to, I cannot call Amendments 90 and 92 for the reason of pre-emption.

[Baroness Sharp of Guildford]

My Lords, I will speak to Amendments 108 and 178 in my name and that of my noble friends Lady Walmsley and Lady Garden. I need not detain the Committee long at this time of night.

Amendment 108 is slightly different in that it concerns the application to convert to academy status, and is very much probing. At the moment, there is no provision in the Bill to withdraw an application once it has been made. Will the Secretary of State allow a maintained school to withdraw an application, and what will be the latest time by which a school can withdraw it? Presumably there will be some point of no return prior to the conversion date or the date on which the academy order is issued, which is the date that allows the school to convert to an academy and therefore to negotiate a funding agreement.

Amendment 178 proposes one of a permutation of clauses—or, rather, it proposes the same clause with a permutation of times in it—and proposes that an academy, once established as an academy, can revert to becoming a maintained school. Its purpose is really to provide a mechanism for the school to revert to maintained status.

It might be of interest to the Committee if I note that the seven-year rule in the Bill came from the Education Reform Act 1988 of the noble Lord, Lord Baker. The rule was originally five years, and Lady Blatch, whom many people in this House will remember, moved as a Back-Bencher that this should be changed to seven years on the grounds that any young person attending what was then a city technology college should be afforded the opportunity to complete a full seven years—the period of secondary education up to 18 years of age. The assumption was repeated by the Minister of the time, the noble Earl, Lord Arran, and it might be worth asking whether it continues to be the assumption that academies will provide sixth-form education. Certainly our primary schools and many of our special schools will not necessarily provide sixth-form education.