Schools: Sex and Relationships Education

Lord Hill of Oareford Excerpts

Monday 24th October 2011 Lords Chamber

[Baroness Gould of Potternewton]

To ask Her Majesty’s Government what plans they have to improve the teaching of sex and relationships education in schools.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, we are reviewing personal, social, health and economic education, including sex and relationships education. The review is considering how to improve the quality of teaching, the core outcomes that we expect PSHE to achieve and the core of knowledge and awareness that the Government should expect pupils to acquire at school. It is looking at existing research and also welcomes submissions of evidence and good practice before 30 November.

[Baroness Gould of Potternewton]

I thank the Minister for that reply. I am very pleased that we now have a date for the ending of the review, but it does seem to be taking rather a long time. Why, when all the evidence was already available, has it taken so long? He will appreciate that the majority of parents, teachers and school governors believe that PSHE and SRE should be taught in schools, and that advice should be given for use in the home as well. Can he elaborate on what support parents are receiving to give them the confidence to discuss the issue along with the school? Further, when the review is over, when will the teaching start?

[Lord Hill of Oareford]

My Lords, I know that there has been a lot of eager anticipation about the review starting and that a number of noble Lords wish that we could have started sooner. We were keen to try to set up the review properly and I am glad that it is now going. We recently had a very useful meeting with a number of noble Lords in which they gave us a lot of helpful advice. I welcome contributions from all noble Lords in this House who have a range of different perspectives and who would like to contribute to the review. One important issue that the review is looking at is how to improve the quality of teaching. When Ofsted looked at PSHE, it found that it was good or outstanding in three-quarters of schools but that there were problems in some. That is important. Clearly, the role that parents play is vital as well. The guidance from the Secretary of State—it was issued by the previous Government and we have retained it—talks about that, and it is something that we will need to look at as the review progresses.

[Baroness Sharples]

Can my noble friend explain why children here go to school at the age of five when in virtually every other country they go to school at the age of six or seven?

[Lord Hill of Oareford]

I am not sure that I can provide an easy answer to that, other than to say that practices vary from country to country in all sorts of different ways.

[Lord Clarke of Hampstead]

My Lords, is the Minister aware that many parents are concerned about the teaching of sex and relationships education to very young children and that sometimes the children are too young to understand these subjects? Do the Government have any plans to force sex education on to the national curriculum, and does the Minister think that it is teachers who should decide whether such things are taught in their schools?

[Lord Hill of Oareford]

My Lords, of course I am aware of the sensitivities around this issue, and I agree with the noble Lord about the important role that parents play. Perhaps I may read from the guidance which the previous Government issued in 2000 and which is still in place. It is very clear on this matter:

“Schools should ensure that pupils are protected from teaching and materials which are inappropriate, having regard to the age and cultural background of the pupils concerned. Governors and head teachers should discuss with parents and take on board concerns raised, both on materials which are offered to schools and on sensitive material to be used in the classroom”.

That seems very clear and it is absolutely right. We are not proposing any change to the current legislation on sex education or to make the whole of PSHE statutory.

[Baroness Tonge]

My Lords, the Minister will know that teaching children how to avoid sexually transmitted disease and HIV/AIDS is a compulsory part of the curriculum. Can he explain to me, as a doctor, how you can teach children that without teaching them about sex and relationships?

[Lord Hill of Oareford]

I agree with my noble friend that children understanding STIs and HIV/AIDS is extremely important, and I am glad that the most recent figures show that there has been some improvement in that respect. I also take the point, which is often raised in this House, that, when we talk about sex education, the SRE or relationships bit, which I think is an important part of the process, often gets missed out.

[Lord Elton]

In his last reply but one, the Minister referred to the age of children. Can he tell us whether the regulations refer to calendar or biological age, which are often very different, and whether they take account of the views of the parents of the children being taught?

[Lord Hill of Oareford]

I tried to make it clear that they should indeed pay attention to the interests and views of the parents concerned. On the specific point about calendar age, I shall need to write to my noble friend.

[Baroness Jones of Whitchurch]

My Lords, does the Minister acknowledge the consistent evidence that the teaching of sex and relationships education reduces, rather than increases, sexual activity? Does he agree, as I think he indicated, that teaching young people about relationships, and in particular young girls about the nature of informed consent in sexual relationships, is vital? Does he also agree that that is best achieved by teaching sex and relationships as part of compulsory modules in statutory PSHE education?

[Lord Hill of Oareford]

I think I was with the noble Baroness right until the very last bit of her question. I accept the thrust of her points but, as she will know because we have discussed it before, the overall aim in the Government’s plans is to slim down the curriculum, which we think has become overcrowded. Therefore, as she knows, we do not plan to make SRE a statutory part of it. The purpose of our review is to try to share best practice, to look at how we can raise the quality of teaching and to identify the core elements of PSHE which we think children should study.

[Baroness Gould of Potternewton]

Can the information on the annunciator screen be changed? I am not Lord Gould of Brookwood.

Education Bill

Lord Hill of Oareford Excerpts

Monday 24th October 2011 Lords Chamber

Moved by

[Lord Hill of Oareford]

62: Clause 30, leave out Clause 30

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, in Grand Committee we debated at some length the merits of Clause 30, which covers the duty to co-operate. Following the debate, I undertook to reflect further with my ministerial colleagues on the issues that noble Lords had raised. I also had an opportunity to discuss things further with the noble Lord, Lord Laming, my noble friend Lady Walmsley, the noble Lord, Lord Touhig, and others over the summer. I am grateful to them for their time and advice. As a result, we tabled amendments to the effect that Clauses 30 and 31, which were linked, should not stand part of the Bill.

I believe that the noble Lord, Lord Laming, accepted that the Government were in favour of schools working together, that we felt that they did not need a duty to do so, and that a number of schools had made that case strongly to us. However, I also accept the point that he and my noble friend Lady Walmsley made that at a time when the Government have recently announced pathfinders to test and work through our SEN Green Paper proposals, which seek to encourage greater partnership working, we should not risk sending to this sector any confusing messages about the importance of partnerships. I took their advice and decided that the simplest thing to do was to delete the relevant clauses. I believe that that move will be welcomed by many noble Lords, including those on the Front Bench opposite, who I know shared the concerns that were raised. I repeat my thanks to noble Lords who have worked with me over the summer. I beg to move.

[Baroness Walmsley]

My Lords, I am most grateful to my noble friend for listening to our views and responding in the way that he has. It is quite rare in our proceedings to find a government amendment that has names from those on all other Benches attached to it. In this case the accolades and plaudits that the Minister will get from all noble Lords are well deserved.

In the letter to the noble Baroness, Lady Hughes, of 6 October, the Minister said:

“While we work through with interested parties as to how the proposals in the Green Paper on SEN and disability will promote better collaboration, we are happy that the duty to co-operate should remain”.

When the legislation comes before us, which will result from the SEN Green Paper undoubtedly—I assume that will be some time next year—can my noble friend assure us that the duty to co-operate will not be deleted in that legislation without consultation with those of us who have expressed the wish to keep it in this legislation?

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It begs the question of whether the Government really do want to see close co-operation between those different agencies, including schools. Are the Government committed to a wide-ranging, overarching duty on schools to co-operate with the local authority and other partners? Can the Minister confirm that the Government will not make further attempts to repeal the duty in Section 10 from schools some time in the future?

[Lord Hill of Oareford]

My Lords, I am grateful for the response from noble Lords. The accolades predicted by my noble friend Lady Walmsley were not heaped on me in quite the numbers I might have hoped for, particularly from the noble Baroness, Lady Hughes of Stretford, but I am grateful for the ones that I received. I am grateful to noble Lords for helping me get to this position.

In response to the point made my noble friend Lady Walmsley, which also picks up on one of the points raised by the noble Baroness, Lady Hughes of Stretford, yes, with regard to future legislation to do with SEN and trying to bring about greater partnership, there clearly would be consultation with noble Lords in the way that my noble friend suggested were any future change to be proposed. Whether it is or not, I do not know. Time will tell, in the context—which I think noble Lords welcomed—that we should look at this issue in the round, in terms of our plans for trying to encourage greater partnership working. That is something we are keen to do.

On the specific question asked by the noble Baroness, Lady Hughes of Stretford, about academies, I can assure her that it will apply to all the types of academies. On the guidance, it was our view that the 100 or so pages of statutory guidance, and, indeed, the regulations around the children and young people’s plan, were overly proscriptive. Those requirements went last August, as the noble Baroness, Lady Hughes, said. I am not certain that their departure has been enormously noted. The key point is that, with the duty now in place, local authorities will be able to develop effective plans with partners that reflect local priorities. The Children Act 2004 sets out the overarching requirement for the local authority, schools and other partners to co-operate to improve children’s life chances—through joined-up planning, for example. We think that local areas will be able best to judge what should be in their plans.

I know that there were a couple of other important points that the noble Baroness raised. As I do not want to get anything wrong, I will, if I may, follow that up with her in correspondence.

Amendment 62 agreed.

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Moved by

[Lord Hill of Oareford]

63: Clause 31, leave out Clause 31

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[Lord Knight of Weymouth]

My Lords, in some ways there is not much more to add, but I want to reinforce this point. I understand and have sympathy with a model of school system improvement that builds on the international evidence by the likes of Michael Barber, through his work at McKinsey and elsewhere, on the importance of school autonomy, even if it is autonomy collaborating with others, as part of driving forward school improvement. If you go for that big time, as this Government have done with the rapid expansion of autonomous schooling through academies and free schools, there are certain fundamentals that we have to be clear about the Government retaining responsibility for.

I suggest that the core functions that the Secretary of State has to hang on to and be held accountable for in this Palace are fair funding, fair admissions and objective inspection. We can argue about some of the other stuff, such as how much of a curriculum there should be and the teaching of history in school—we debate that beautifully and with much erudition. At the core, though, it is those three things that the Government should be concerned about in order to ensure that the operation of the market, which is almost what autonomous schools become, does not disadvantage those who are least articulate, least advantaged and least able to help themselves. It is a struggle for the noble Lord, Lord Northbourne, to define fairness in this context but for me fairness is ensuring that no child or family is disadvantaged by who they are, where they live and what their income is, and that they have equal opportunity to access good schooling.

As has been said, the growth of autonomy leads to growth in the number of schools that are their own admissions authorities. I have some sympathy with my noble friend Lady Morris; some co-ordination by local authorities in administering admissions makes it much easier for parents. However, I recall that in my day it was the schools, rather than the local authorities that were admissions authorities, that were most likely to fall foul of the admissions code. I do not think that it was anything to do with the fact that they were largely faith schools or with their faith foundation; it was the fact that they were their own admissions authorities. Some aspects of the code were quite complex and they did not have the expertise in-house or within the school to ensure that they were compliant with the code. We found some gross non-compliance with the code, which is why things were toughened up.

In many ways, I do not have a problem with the Government’s code. What I have a problem with is ensuring that there is proper regulation of the code, with teeth. To remove the admissions adjudicator’s ability to direct schools and the adjudicator’s power to look at the admissions arrangements is to remove teeth. The Government are still unable to answer this through their amendments which we will discuss later. The code has to be independent to protect the Government from charges of political interference, because sometimes these issues become quite political at a local level and Members of Parliament are asked to be involved.

This amendment is the minimum that the Government could get away with. If they are not minded to accept this amendment, we should think again about introducing something tougher at Third Reading and, if we need to, restoring some of the adjudicator’s powers.

[Lord Hill of Oareford]

My Lords, I agree with the three definitions that the noble Lord, Lord Knight of Weymouth, came up with: fair funding, fair inspection and fair access. These are the three principles that we need to uphold as we develop our academy policy. I will return to that in a moment. In response to the question from the noble Lord, Lord Northbourne, I am told that, perhaps not surprisingly, there is not a statutory definition of fair access. The noble Lord, Lord Knight, came up with a definition, and I suspect that it is like the elephant—we know it when we see it.

I take issue with the suggestion from the noble Baroness, Lady Hughes of Stretford, about the extent to which the Government are seeking to change the admissions arrangements. The changes which we are proposing are relatively modest. I accept entirely the need for strong and effective safeguards and these are in place. As I go on to explain what some of them are, I hope that I will be able to reassure noble Lords that that is the case.

As I said when we discussed similar amendments in Committee, and reiterate now, we see our commitment in favour of fair access, and protecting and promoting the opportunities of the disadvantaged and vulnerable, as part of our broader agenda. We talked earlier about extending early years education to disadvantaged two year-olds, the funding we have put behind the pupil premium and our efforts to tackle underperforming schools. I would also argue that this commitment can be seen in the changes that we are making on admissions. We have revised the statutory admissions code, which we think over the years—in a well-intentioned attempt to cover every eventuality—had become a bit unwieldy. In revising the code, although we have retained the key safeguards for looked-after children and children with statements of special needs, we have also added new measures to improve access to good schools. These will, for example, allow academies to prioritise children receiving the pupil premium. We have expanded infant class size exceptions to include twins, multiple births and children from our Armed Forces families. I should add that much of the feedback that we have had from the consultation is that, in making it simpler, more concise and more focused on the things that admission authorities must do, parents and their associations who have responded feel that it would be easier to hold schools and local authorities to account.

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[Lord Hill of Oareford]

I understand the point. One way to tackle this might be to ask the chief adjudicator to look at the concern that has been raised about what happens where there is a range of admissions authorities. The chief adjudicator would be the right person to look at that, report on it and comment on it in his annual report so that people can see what is going on. I will follow up that point with my right honourable friend to see whether that might be a way of addressing those concerns.

As I said, local authorities have a duty to refer any arrangements that they suspect may be unfair to the adjudicator. That role gives them oversight of all arrangements, be they at maintained or academy schools. In carrying out all of their functions in the provision of education local authorities have a duty under Section 13A of the Education Act 1996 to ensure fair access to opportunity for education and training. We think that the duty should be at that level.

Ensuring fair access was the reason for the introduction of the admissions code and is central in its current revision. We hope that the new revised code, which was consulted on over the summer and will be laid before Parliament shortly, makes the code easier to understand while protecting and extending safeguards for vulnerable groups. The changes in this Bill extending the adjudicator’s remit to include academies and free schools, and the government amendments which will allow anyone to object to the adjudicator, are aimed at achieving and promoting fair access. We think that sufficient safeguards are in place to make sure that the oversight to which noble Lords have referred is in place. The changes we have made will help the admissions arrangements, not weaken them as the noble Baroness suggests. I ask the noble Baroness to withdraw the amendment.

[Baroness Hughes of Stretford]

My Lords, I thank the Minister for his detailed response. As my noble friend Lady Morris said, he was trying to be helpful. However, a number of issues are still outstanding. I also thank other noble Baronesses and my noble friends for contributing to the debate as well. It is somewhat disappointing that the noble Baroness, Lady Walmsley, said that she tabled her amendment to enable the Minister to say what he had to say, as she spoke with great conviction in Committee about the necessity for an overarching duty precisely for some of the reasons that my noble friend Lady Morris pointed out; namely, that this issue—

Education Bill

Lord Hill of Oareford Excerpts

Monday 24th October 2011 Lords Chamber

Moved by

[Lord Hill of Oareford]

56: After Clause 22, insert the following new Clause—
“Enforcement powers
(1) Part 7 of ASCLA 2009 (the Office of Qualifications and Examinations Regulation) is amended as set out in subsections (2) to (6).
(2) In section 151 (power to give directions), for subsection (1) substitute—
“(1) Subsection (2) applies if it appears to Ofqual that a recognised body has failed or is likely to fail to comply with a condition to which the recognition is subject.”
(3) After section 151 insert—
“151A Power to impose monetary penalties
(1) Subsection (2) applies if it appears to Ofqual that a recognised body has failed to comply with a condition to which the recognition is subject.
(2) Ofqual may impose a monetary penalty on the recognised body.
(3) A “monetary penalty” is a requirement to pay to Ofqual a penalty of an amount determined by Ofqual in accordance with section 151B.
(4) Before imposing a monetary penalty on a recognised body, Ofqual must give notice to the body of its intention to do so.
(5) The notice must—
(a) set out Ofqual’s reasons for proposing to impose the penalty, and(b) specify the period during which, and the way in which, the recognised body may make representations about the proposal.(6) The period specified under subsection (5)(b) must not be less than 28 days beginning with the date on which the notice is received.
(7) Ofqual must have regard to any representations made by the recognised body during the period specified in the notice in deciding whether to impose a monetary penalty on the body.
(8) If Ofqual decides to impose a monetary penalty on the body, it must give the body a notice containing information as to—
(a) the grounds for imposing the penalty,(b) how payment may be made,(c) the period within which payment is required to be made (which must not be less than 28 days),(d) rights of appeal,(e) the period within which an appeal may be made, and(f) the consequences of non-payment.151B Monetary penalties: amount
(1) The amount of a monetary penalty imposed on a recognised body under section 151A must not exceed 10% of the body’s turnover.
(2) The turnover of a body for the purposes of subsection (1) is to be determined in accordance with an order made by the Secretary of State.
(3) Subject to subsection (1), the amount may be whatever Ofqual decides is appropriate in all the circumstances of the case.
151C Monetary penalties: appeals
(1) A recognised body may appeal to the First-tier Tribunal against—
(a) a decision to impose a monetary penalty on the body under section 151A;(b) a decision as to the amount of the penalty. (2) An appeal under this section may be made on the grounds—
(a) that the decision was based on an error of fact;(b) that the decision was wrong in law;(c) that the decision was unreasonable.(3) The requirement to pay the penalty is suspended pending the determination of an appeal under this section.
(4) On an appeal under this section the Tribunal may—
(a) withdraw the requirement to pay the penalty;(b) confirm that requirement;(c) vary that requirement;(d) take such steps as Ofqual could take in relation to the failure to comply giving rise to the decision to impose the requirement;(e) remit the decision whether to confirm the requirement to pay the penalty, or any matter relating to that decision, to Ofqual.151D Monetary penalties: interest and recovery
(1) This section applies if all or part of a monetary penalty imposed on a recognised body is unpaid at the end of the period ending on the applicable date.
(2) The applicable date is—
(a) the last date on which the recognised body may make an appeal under section 151C in respect of the penalty, if no such appeal is made;(b) if an appeal under section 151C in respect of the penalty is made—(i) the date on which the appeal is determined, or(ii) if the appeal is withdrawn before being determined, the date on which the appeal is withdrawn.(3) The unpaid amount of the penalty for the time being carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (and does not also carry interest as a judgment debt under that section).
(4) The total amount of interest imposed under subsection (3) must not exceed the amount of the penalty.
(5) Ofqual may recover from the body, as a civil debt due to it, the unpaid amount of the penalty and any unpaid interest.”
(4) In section 152 (power to withdraw recognition), for subsection (2) substitute—
“(2) Ofqual may withdraw recognition from the recognised body in respect of the award or authentication of—
(a) a specified qualification or description of qualification in respect of which the body is recognised, or(b) every qualification or description of qualification in respect of which the body is recognised.”(5) After section 152 insert—
“152A Costs recovery
(1) Ofqual may, by notice, require a recognised body on which a sanction has been imposed to pay the costs incurred by Ofqual in relation to imposing the sanction, up to the time it is imposed.
(2) The references in subsection (1) to imposing a sanction are to—
(a) giving a direction under section 151;(b) imposing a monetary penalty under section 151A;(c) withdrawing recognition under section 152.(3) “Costs” includes in particular—
(a) investigation costs;(b) administration costs;(c) costs of obtaining expert advice (including legal advice).(4) A notice given to a recognised body under subsection (1) must contain information as to—
(a) the amount required to be paid,(b) how payment may be made,(c) the period within which payment is required to be made (which must not be less than 28 days),(d) rights of appeal, (e) the period within which an appeal may be made, and(f) the consequences of non-payment.(5) The body may require Ofqual to provide a detailed breakdown of the amount specified in the notice.
152B Costs recovery: appeals
(1) A recognised body may appeal to the First-tier Tribunal against—
(a) a decision under section 152A(1) to require the body to pay costs;(b) a decision as to the amount of those costs.(2) An appeal under this section may be made on the grounds—
(a) that the decision was based on an error of fact;(b) that the decision was wrong in law;(c) that the decision was unreasonable.(3) The requirement to pay the costs is suspended pending the determination of an appeal under this section.
(4) On an appeal under this section the Tribunal may—
(a) withdraw the requirement to pay the costs;(b) confirm that requirement;(c) vary that requirement;(d) take such steps as Ofqual could take in relation to the failure to comply giving rise to the decision to impose the requirement;(e) remit the decision whether to confirm the requirement to pay the costs, or any matter relating to that decision, to Ofqual.152C Costs: interest and recovery
(1) This section applies if all or part of an amount of costs that a recognised body is required to pay under section 152A(1) is unpaid at the end of the period ending on the applicable date.
(2) The applicable date is—
(a) the last date on which the recognised body may make an appeal under section 152B in respect of the costs, if no such appeal is made;(b) if an appeal under section 152B in respect of the costs is made—(i) the date on which the appeal is determined, or(ii) if the appeal is withdrawn before being determined, the date on which the appeal is withdrawn.(3) The unpaid amount of the costs for the time being carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (and does not also carry interest as a judgment debt under that section).
(4) The total amount of interest imposed under subsection (3) must not exceed the amount of the costs.
(5) Ofqual may recover from the body, as a civil debt due to it, the unpaid amount of the costs and any unpaid interest.”
(6) In section 153 (qualifications regulatory framework), in subsection (8)(e), for “152” substitute “152C”.
(7) In section 262(6) of ASCLA 2009 (orders and regulations subject to affirmative resolution procedure), after paragraph (e) insert—
“(ea) an order under section 151B(2);”.”

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, government Amendments 56 and 57 are a response to concerns first raised by my noble friend Lord Lingfield and echoed by others of my noble friends, the noble Lord, Lord Sutherland of Houndwood, and the noble Baroness, Lady Wall, about whether Ofqual has a full range of effective and proportionate powers that it can use to carry out its duties and responsibilities.

The context of the concerns expressed was the events of this summer, where we saw numerous errors in awarding bodies’ exam papers; many of those appeared even after Ofqual had required awarding bodies to go back and check all their papers. We all know how hard most children work for their GCSEs, A-levels and vocational qualifications. After all that work, they should not be let down by exam boards’ mistakes; nor can we be sanguine about the credibility of our qualifications being brought into doubt.

The key point made by my noble friend Lord Lingfield and others in the Grand Committee debate on 13 July was that Ofqual currently has only two types of sanctions available to it: first, the power to direct an awarding body to comply with a condition; and, secondly, the ultimate—and rather nuclear—sanction of partial or full withdrawal of recognition, which in effect would prevent an awarding body from offering a qualification to maintained schools.

Obviously, those are strong powers. First, Ofqual can require awarding bodies to put things right by giving those bodies a direction; but that will often be only after they have gone wrong, so that is after the candidate has endured the two hours of stress that resulted from unsolvable problems in the paper they were sitting. Secondly, Ofqual can, in practice, strip an awarding body of the ability to offer its qualifications to the market. That certainly sounds like a strong incentive on awarding bodies not to make mistakes and to comply with Ofqual’s conditions, but taking such a step could have a very disruptive impact on the whole system, as schools and colleges would have to switch providers and the courses they are teaching. Ofqual is under a duty to act appropriately and proportionately, so, given this impact, it would be able to do that in practice only if faced with an extremely serious or extremely persistent breach of a condition.

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[Baroness Hughes of Stretford]

My Lords, I do not object in principle to the proposals. They were consulted on in 2009 by my Government. We decided at that stage against moving in this direction. I agree that the impact on students when these errors occur is very bad. I agree, too, with measures in general to drive up performance, although it is interesting to contrast them with the approach of this Government to driving up performance in schools, which is to absolve them of every possible requirement, whereas in this instance further financial sanctions are being sought. It is a moot point whether Ofqual needs these powers or whether the existing powers that the Minister has referred to of withdrawing accreditation or giving a direction are both more appropriate and more effective. The Minister agreed that these are strong powers.

I will make three points and will be grateful if the Minister will respond to them. First, I echo some of the points made by the noble Baroness, Lady Sharp, about the rushed nature of this publication. It begs the question of whether the detail has been properly thought through, with only eight days for providers to have any kind of discussion with Ofqual about how it might work. Consequently, no information is available on a number of important questions. For example, in what circumstances will the financial penalties be imposed? What level of apparent errors will be the threshold for financial penalties to kick in? What will be the levels of penalties and how will they be determined? What will the maximum penalty be? What will be the mechanism for an independent appeals process for providers, and what safeguards will there be that it will be a fair and transparent process? Will the Government issue guidance to Ofqual on how it should conduct itself? The Minister may say that Ofqual will have a full consultation for 12 weeks on some of these questions, but as noble Lords are being asked to consider the measures now, it would have been helpful to have had some indication of the Government's view about how this will work.

My second question is: are financial penalties appropriate? We have heard that Pearson has replied with some comments, but I am more concerned with the majority of exam boards, which are charitable, not-for-profit organisations. Seventy-five per cent of all GCSEs and A-levels are delivered by not-for-profit organisations. There is already in the system a degree of potential financial instability for the exam boards, because government policy decisions, for instance on changing the structures of GCSEs, have an immediate financial impact on them. Therefore, there is a danger to the not-for-profit organisations that this may further jeopardise their financial stability. As we have heard, schools, too, are concerned that if the not-for-profit organisations take any financial penalty, ultimately they will have to pass it on to schools; they will not necessarily be able to absorb it.

Finally, I am concerned that there are clear parameters and guidance on how Ofqual must use the powers in ways that will protect it from having to respond to what will inevitably be media pressure and perhaps the appearance of political pressure concerning the way it implements these decisions and applies financial penalties. What safeguards does the Minister envisage to ensure that protection? One not-for-profit exam board has suggested that Ofqual should deal with these matters through a more distant complaints procedure, so that it will be clearly separate from government and shielded to some extent from the barrage of perhaps understandable media pressure that will accompany these issues.

[Lord Hill of Oareford]

My Lords, I am grateful to my noble friends Lord Lingfield and Lady Sharp of Guildford, and the noble Lord, Lord Sutherland of Houndwood, for their broad welcome for the measures, and the recognition that this responds to a need.

On the speed of the consultation, referred to by my noble friend Lady Sharp and the noble Baroness, Lady Hughes of Stretford, we responded to the points that were raised in Grand Committee. A legislative opportunity presented itself with this Education Bill and we had before us the failures of this summer. I know that the previous Government consulted. Our case would be that, with the legislative opportunity there and the evidence of the failures that we had this summer, which the previous Government had not had, it was sensible to act while the opportunity presented itself, but I take my noble friend’s point about the importance of consultation. Ofqual will consult on the detailed implementation of its powers, which will be a full 12-week consultation.

In response to the question asked by the noble Baroness, Lady Hughes, Ofqual will publish a statement as part of its qualifications regulatory framework, which will set out how and in what circumstances its powers will be used. That will make clear Ofqual’s expectations that only serious or persistent breaches could lead to a fine.

On the question of appeals, there will be an appeal to the independent First-tier Tribunal, in line with other regulators. I know that concerns were raised about fines being passed on to schools, effectively. Ofqual will have powers to cap those fees if it thinks that it is necessary to do so. I understand the point that obviously some of the big awarding bodies are charities, but some of them are charities with very large tens of millions or hundreds of millions of pounds of turnover. Our basic point is that a pupil or student on the wrong end of a duff examination paper is not too bothered whether that paper has been set by a charity or a commercial organisation. That is why we think that it is appropriate to give this extra power. The noble Baroness, Lady Hughes, is right that there are two powers but we feel that in essence they are not sufficiently nuanced. Giving this additional power we hope will lead not to large amounts of fining but to better and more accurate examination papers.

[Baroness Sharp of Guildford]

I thank the Minister for that explanation. I am reassured that there will be extensive consultation with the boards concerned on the implementation of these things. I just want to reiterate my general feeling that it is important for consultation to take place before rather than after legislation as a general principle. With that, I beg leave to withdraw the amendment.

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Moved by

[Lord Hill of Oareford]

57: After Clause 22, insert the following new Clause—
“Enforcement powers of Welsh Ministers
(1) Chapter 2 of Part 5 of EA 1997 (functions of Welsh Ministers: qualifications and the school curriculum) is amended as set out in subsections (2) to (6).
(2) In section 32A (power to give directions), for subsections (1) and (2) substitute—
“(1) Subsection (1A) applies if it appears to the Welsh Ministers that a recognised person has failed or is likely to fail to comply with a condition subject to which the recognition has effect.
(1A) The Welsh Ministers may direct the recognised person to take or refrain from taking specified steps with a view to securing compliance with the conditions subject to which the recognition has effect.
(2) Subsection (2A) applies if it appears to the Welsh Ministers that a recognised person who awards or authenticates a qualification accredited by them has failed or is likely to fail to comply with a condition subject to which the accreditation has effect.
(2A) The Welsh Ministers may direct the recognised person to take or refrain from taking specified steps with a view to securing compliance with the conditions subject to which the accreditation has effect.”
(3) In section 32A(5), for “32B and” substitute “32AA to”.
(4) After section 32A insert—
“32AA Power of Welsh Ministers to impose monetary penalties
(1) Subsection (2) applies if it appears to the Welsh Ministers that a recognised person has failed to comply with a condition subject to which the recognition has effect.
(2) The Welsh Ministers may impose a monetary penalty on the recognised person.
(3) Subsection (4) applies if it appears to the Welsh Ministers that a recognised person who awards or authenticates a qualification accredited by them has failed to comply with a condition subject to which the accreditation has effect.
(4) The Welsh Ministers may impose a monetary penalty on the recognised person.
(5) A “monetary penalty” is a requirement to pay to the Welsh Ministers a penalty of an amount determined by them in accordance with section 32AB.
(6) Before imposing a monetary penalty on a recognised person, the Welsh Ministers must give notice to the person of their intention to do so.
(7) The notice must—
(a) set out their reasons for proposing to impose the penalty, and (b) specify the period during which, and the way in which, the recognised person may make representations about the proposal.(8) The period specified under subsection (7)(b) must not be less than 28 days beginning with the date on which the notice is received.
(9) The Welsh Ministers must have regard to any representations made by the recognised person during the period specified in the notice in deciding whether to impose a monetary penalty on the person.
(10) If the Welsh Ministers decide to impose a monetary penalty on the person, they must give the person a notice containing information as to—
(a) the grounds for imposing the penalty,(b) how payment may be made,(c) the period within which payment is required to be made (which must not be less than 28 days),(d) rights of appeal,(e) the period within which an appeal may be made, and(f) the consequences of non-payment.32AB Monetary penalties: amount
(1) The amount of a monetary penalty imposed on a recognised person under section 32AA must not exceed 10% of the person’s turnover.
(2) The turnover of a person for the purposes of subsection (1) is to be determined in accordance with an order made by the Welsh Ministers.
(3) Subject to subsection (1), the amount may be whatever the Welsh Ministers decide is appropriate in all the circumstances of the case.
32AC Monetary penalties: appeals
(1) A recognised person may appeal to the First-tier Tribunal against—
(a) a decision to impose a monetary penalty on the person under section 32AA;(b) a decision as to the amount of the penalty.(2) An appeal under this section may be made on the grounds—
(a) that the decision was based on an error of fact;(b) that the decision was wrong in law;(c) that the decision was unreasonable.(3) The requirement to pay the penalty is suspended pending the determination of an appeal under this section.
(4) On an appeal under this section the Tribunal may—
(a) withdraw the requirement to pay the penalty;(b) confirm that requirement;(c) vary that requirement;(d) take such steps as the Welsh Ministers could take in relation to the failure to comply giving rise to the decision to impose the requirement;(e) remit the decision whether to confirm the requirement to pay the penalty, or any matter relating to that decision, to the Welsh Ministers.32AD Monetary penalties: interest and recovery
(1) This section applies if all or part of a monetary penalty imposed on a recognised person is unpaid at the end of the period ending on the applicable date.
(2) The applicable date is—
(a) the last date on which the recognised person may make an appeal under section 32AC in respect of the penalty, if no such appeal is made;(b) if an appeal under section 32AC in respect of the penalty is made—(i) the date on which the appeal is determined, or(ii) if the appeal is withdrawn before being determined, the date on which the appeal is withdrawn. (3) The unpaid amount of the penalty for the time being carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (and does not also carry interest as a judgment debt under that section).
(4) The total amount of interest imposed under subsection (3) must not exceed the amount of the penalty.
(5) The Welsh Ministers may recover from the person, as a civil debt due to them, the unpaid amount of the penalty and any unpaid interest.”
(5) In section 32B (power to withdraw recognition)—
(a) for subsection (2) substitute—“(2) The Welsh Ministers may withdraw recognition from the recognised person in respect of the award or authentication of—
(a) a specified qualification or description of qualification in respect of which the person is recognised, or(b) every qualification or description of qualification in respect of which the person is recognised.”;(b) for subsection (4) substitute—“(4) The Welsh Ministers may withdraw recognition from the recognised person in respect of the award or authentication of—
(a) the qualification or a specified description of qualification in respect of which the person is recognised, or(b) every qualification or description of qualification in respect of which the person is recognised.”(6) After section 32B insert—
“32BA Costs recovery
(1) The Welsh Ministers may, by notice, require a recognised person on whom a sanction has been imposed to pay the costs incurred by the Welsh Ministers in relation to imposing the sanction, up to the time it is imposed.
(2) The references in subsection (1) to imposing a sanction are to—
(a) giving a direction under section 32A;(b) imposing a monetary penalty under section 32AA;(c) withdrawing recognition under section 32B.(3) “Costs” includes in particular—
(a) investigation costs;(b) administration costs;(c) costs of obtaining expert advice (including legal advice).(4) A notice given to a recognised person under subsection (1) must contain information as to—
(a) the amount required to be paid,(b) how payment may be made,(c) the period within which payment is required to be made (which must not be less than 28 days),(d) rights of appeal,(e) the period within which an appeal may be made, and(f) the consequences of non-payment.(5) The person may require the Welsh Ministers to provide a detailed breakdown of the amount specified in the notice.
32BB Costs recovery: appeals
(1) A recognised person may appeal to the First-tier Tribunal against—
(a) a decision under section 32BA(1) to require the person to pay costs;(b) a decision as to the amount of those costs.(2) An appeal under this section may be made on the grounds—
(a) that the decision was based on an error of fact;(b) that the decision was wrong in law;(c) that the decision was unreasonable.(3) The requirement to pay the costs is suspended pending the determination of an appeal under this section.
(4) On an appeal under this section the Tribunal may—
(a) withdraw the requirement to pay the costs;(b) confirm that requirement;(c) vary that requirement;(d) take such steps as the Welsh Ministers could take in relation to the failure to comply giving rise to the decision to impose the requirement;(e) remit the decision whether to confirm the requirement to pay the costs, or any matter relating to that decision, to the Welsh Ministers.32BC Costs: interest and recovery
(1) This section applies if all or part of an amount of costs that a recognised person is required to pay under section 32BA(1) is unpaid at the end of the period ending on the applicable date.
(2) The applicable date is—
(a) the last date on which the recognised person may make an appeal under section 32BB in respect of the costs, if no such appeal is made;(b) if an appeal under section 32BB in respect of the costs is made—(i) the date on which the appeal is determined, or(ii) if the appeal is withdrawn before being determined, the date on which the appeal is withdrawn.(3) The unpaid amount of the costs for the time being carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (and does not also carry interest as a judgment debt under that section).
(4) The total amount of interest imposed under subsection (3) must not exceed the amount of the costs.
(5) The Welsh Ministers may recover from the person, as a civil debt due to them, the unpaid amount of the costs and any unpaid interest.”
(7) In section 54 of EA 1997 (orders and regulations)—
(a) in subsection (2), after “section” insert “32AB(2) or”;(b) after subsection (2) insert—“(2A) A statutory instrument which contains (whether alone or with other provision) an order under section 32AB(2) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.””

--- Later in debate ---

[Lord Morris of Handsworth]

My Lords, I add my name to those supporting the group of amendments spoken to by my noble friend Lady Jones of Whitchurch. I do so because the current provision for face-to-face careers advice preceded one of the dates mentioned in this debate. If I am right, it goes back to the Education Act 1973. It was more than just a passing of an intent; it placed a duty on the local authority to provide support designed to match the needs of the individual student. One of the problems with the Bill in respect of the provision of careers advice is that this statutory right has been downgraded significantly to access, basically, in respect of needs. There is no real provision for quality or indeed quantity assurances. It is a one-size-fits-all provision, based in some instances on an online system.

I see some difficulties in future years. As I understand it, the Department for Business, Innovation and Skills is also promoting an all-age service of advice and career guidance. Again, though, it is faceless and has no interaction because it is online. It is predicated on a one-size-fits-all culture. The current system is tried, tested and respected. It enthuses and inspires confidence and provides a two-way interaction; it is a critical friend that challenges and motivates. That is as it should be. It is a system that extends parental support to the student who needs that sort of guidance, particularly in circumstances of a one-parent family. That is crucial.

I want to raise a point about the transition. As I understand it, the arrangements currently provided by Connexions end in March 2012 and the new provisions being canvassed in the Bill would not come into force until September 2012. So my question is an obvious one: how will the gap be filled?

We have heard much about social mobility. The only way to ensure that all young people have opportunities to raise their aspirations is for them to receive a first-rate education that enables them to achieve academically and to have access to independent, impartial careers advice and guidance that supports them to make the best decisions and helps them to apply for appropriate post-16 learning opportunities. It is for those reasons that I add my name to the group of amendments so ably spoken to by my noble friend.

[Lord Hill of Oareford]

My Lords, I am grateful for this chance to return to the issue of careers guidance and the Government’s proposal to give schools greater responsibility for securing appropriate support, based on the needs and circumstances of pupils. As the noble Baroness, Lady Jones of Whitchurch, said, we had a good and extensive debate on this in Committee, and I am grateful to noble Lords, particularly to my noble friends Lady Brinton and Lady Sharp of Guildford, for meeting me and my honourable friend John Hayes recently to discuss some of the areas of their concern.

Perhaps I may briefly set out the context in which we are implementing changes to the delivery of careers guidance. We know that the single most important factor in making sure that young people carry on and prosper in post-16 education—which is what we all want to encourage—is that they do well before they are 16. Only one in 40 students who get five good GCSEs is NEET at any point after the age of 16, compared to one in six of those who do not get five good GCSEs. Without that bedrock of achievement, the potential of adding to that, even with the best advice and guidance in the world, is quite limited. That is why our focus is on what goes on in schools.

I say that to demonstrate why we have chosen to focus on improving the quality of teaching and learning in our schools, and on introducing the pupil premium to help improve the attainment of children from disadvantaged backgrounds, about whom we have already spoken. At a time of economic difficulty, we are moving away from centrally-directed services and have protected school budgets as much as we can. We have given schools greater autonomy and the flexibility to determine the best use of resources for every pupil.

We disagree with the party opposite in seeking to move the focus away from—in the jargon—inputs to outcomes, because we think that it is more important to know how a school or college does by its students than to know precisely what it does. That is the thinking behind the development of new destinations measures. We think that these will show parents and pupils how well a school or college does in helping its students on to positive destinations, whether it is in further education, higher education, apprenticeships or work. We think that those will act as a powerful tool to help those institutions to make sure they look at everything that leads to positive outcomes, from education through to, and including, careers guidance.

A number of amendments in this group touch upon the important issue of the quality of careers guidance and how we can help to ensure that what is available to schools is good quality. I agree with the noble Baroness, Lady Morris of Yardley, about the importance of that. There is no disagreement between us. Careers guidance should be of the highest standard and offered free from the influence of any particular organisation. That is a point that was raised by a number of noble Lords who, I know, have been concerned that sometimes schools have steered children in a particular direction and not towards apprenticeships or other rival institutions.

The national careers service will be required to meet a robust high-quality standard and all providers involved in the service will be expected to be accredited to the standard by April 2013. It was recently announced that this quality standard would be the revised matrix standard, and that will assist schools in making well informed decisions about which providers they want to work with.

Alongside this, the Careers Profession Alliance is taking forward work to increase the professionalism of the careers workforce in response to the recommendations of the Careers Profession Task Force. An online register for members who have reached a level 6 qualification, have agreed to uphold a code of ethics and have demonstrated a strong commitment to continuing professional development, is expected to be introduced in April 2012.

We spoke in Committee of the need to reduce generally the burden of guidance from the centre. There were previously 169 pages of guidance on careers for schools, and we want to reduce that. However, having listened to contributions in Committee, I recognise that it is sensible to allow scope for focused guidance to be issued to schools to support them in fulfilling their new duty. After considering the concerns raised by my noble friends Lady Sharp of Guildford and Lady Brinton at a recent meeting, I want to go further and ensure that the statutory guidance highlights to schools how they can be confident that the external support they are buying in is of the desired quality. The guidance will contain a clear description of the quality standard for careers guidance for schools in commissioning independent advice and support for their pupils. I will certainly commit to consulting on that guidance.

[Baroness Brinton]

Is the Minister talking about statutory guidance here? He did not use the phrase “statutory guidance” at the beginning of the debate on this clause.

[Lord Hill of Oareford]

Yes, it is statutory guidance. I thought I had used the phrase; forgive me. I welcome the views of my noble friends and other noble Lords, who I know feel strongly about this issue. We have also confirmed that a thematic review of careers guidance will take place following the commencement of these provisions. That will look carefully at the quality of provision and the extent to which this has an effect on pupils’ understanding of the options available to them as they progress through school.

The second main area of debate has been the question of how careers guidance is delivered. While recognising that young people receive advice from many different sources, and the fact that many young people say that they prefer to get information online, I accept the case made this afternoon by my noble friends and noble Lords opposite, including the noble Baroness, Lady Jones of Whitchurch. Pupils can benefit enormously from support offered in person that raises their aspirations and guides them on to a successful path. This is particularly true of those young people who are disadvantaged and may not have access to a social network of people in a range of jobs, who come from a background of intergenerational unemployment, as has been mentioned, or who have special needs or are learners with learning difficulties or disabilities.

Given that, I am also happy to commit to highlighting this issue in statutory guidance and making it clear to schools that young people have much to gain from a face-to-face exploration of their skills, abilities and interests, which can help them think through the learning and career options available to them. I understand the point that was made about apprenticeships in particular, and the lack of knowledge about them. We are all keen, on all sides of this House, to encourage take-up of apprenticeships. We will place a clear expectation on schools that they should secure face-to-face careers guidance where it is the most suitable support, in particular for disadvantaged children and those who have special needs or are learners with learning difficulties and disabilities. These messages in the guidance will be further strengthened by the sharing of effective practice and evidence about what works. Underpinning both the quality assurance of careers guidance and our statutory guidance to schools will be a clear, outcome-based measure of the effectiveness of schools in meeting their new duty. Those are the destinations measures that I talked about earlier, which will provide a powerful incentive to provide high-quality advice.

We have also talked about the age range, which is important. Clause 27 requires schools to secure access to independent careers guidance for their pupils from the start of the academic year in which they turn 14— year 9—to the end of the year in which they turn 16, year 11. The case has been made by a number of noble Lords on all sides of the House that we should extend this age range upwards to include young people studying in school sixth forms and colleges. It has also been suggested that we should extend the age range down to year 8. There is a clear case for independent careers guidance for 16 to 18 year-olds in schools and the further education sector, particularly as we move towards the raising of the participation age. We have committed to consulting on extending the age range upwards. We can make that change through secondary legislation once the consultation is complete.

Similarly, I accept that an argument can be made for commencing the duty from year 8, when the first major decisions relating to post-14 options are taken. Again, I make it clear that we will consult fully on this issue and we will be able to make changes through secondary legislation once that consultation is complete. Just to be clear, that consultation will be complete in time to extend the age range of the duty by regulations from September 2012.

As regards the important point raised by the noble Lord, Lord Morris, we are working with local authorities and others on the transitional arrangements. It is clear that we want them to carry on with those until the new duty is put in place in September 2012.

I know that I will not be able to convince all noble Lords about the course of action that the Government are taking, but I hope that I have reassured them about some of the steps we have taken to respond to those concerns. With that, I hope that the noble Baroness, Lady Jones of Whitchurch, may feel able to withdraw the amendment.

[Baroness Howe of Idlicote]

Before the noble Lord sits down, will he address the point I made that careers advice for girls should be as wide-ranging as possible?

[Lord Hill of Oareford]

My Lords, I hope that the noble Baroness will forgive me for not responding to that point. We clearly want to see high-quality careers guidance for girls as well as for boys. We expect schools to want to do that. The noble Baroness’s particular concern may be to make sure that some of the career options that schools have not traditionally thought of as being suitable for girls get full consideration. I agree with her that one would very much want to see that.

[Baroness Jones of Whitchurch]

My Lords, once again we have had a very good debate on careers. I think that noble Lords from around the House have recognised the need for us to provide an improved careers service for young people, particularly in the current economic climate. However, we have some disagreements that the Minister has not fully addressed. The case was very well made about the great advantages of face-to-face counselling for young people. As my noble friend Lady Morris so ably said, that is very different from providing information, which you can, of course, do online. Guidance and counselling need to be done on a face-to-face basis. Regrettably, the Minister did not sufficiently address that issue. We argue that it is a fundamental right for all young people. It is very hard to differentiate and start picking out categories of those who are disadvantaged or at risk as being the only categories who are entitled to that face-to-face counselling, which is such a big issue in terms of young people’s future prospects. The noble Baroness, Lady Brinton, said that in a perfect world we would all have face-to-face provision. I do not think that we need to talk about a perfect world here; it is too big a fundamental right for young people. It seems to us that it is reasonable and necessary rather than something to which we are foolishly aspiring.

As regards qualifications, the case has been that the provision of careers advice should be regarded as a skilled job. I accept what the Minister has said about organisations being accredited in the future. However, he did not address the point that I made about the people employed by those organisations. If we do not require everyone who is providing the face-to-face careers advice to have a qualification, I very much fear that, as I said, this task will be tagged on to the duties of teachers or will be carried out by people employed at short notice or who are on temporary contracts, although the organisations which employ them are accredited. Again, I argue that the Minister has not addressed the fundamental issue of qualifications.

As regards the guidance to schools, the Minister has, as we have said, written to us about the advice that he is going to send out. He has said that he will consult on that. However, the letter asks schools to consider providing face-to-face guidance for pupils who are disadvantaged and talks about,

“working with local authorities to identify young people who are at risk”.

To my mind, that does not provide any guarantees for any of those categories. We are being asked to jump blindly into a careers guidance provision on which we do not have sufficient guarantees and which is not sufficiently robust.

There is too much at stake here. We feel that we have had too few guarantees. There is too much reliance on research and on data about how the new careers advice service will be monitored in the future, but young people need a provision and guarantees now. They need guarantees that they will have access to someone on a personalised basis and that they will be given advice by a qualified practitioner. We do not accept that the Minister has given sufficient guarantees. I wish to test the opinion of the House on Amendment 57C.

--- Later in debate ---

[The Lord Bishop of Chester]

My Lords, I will clarify one point if I may. I have not spoken before. We on the Bishops’ Benches sometimes look alike; I promise that it goes no further. There is a very clear distinction between collective and corporate worship. The noble Lord, Lord Elton, referred to corporate worship. That is not what is provided in schools. The act of collective worship is appropriate to the collection of people who are there. It needs to be wholly or mainly of a broadly Christian character. In practice, schools with significant numbers of members of other faith communities have managed to work within the degree of flexibility that the law allows, as the right reverend Prelate the Bishop of Ripon and Leeds suggested. It is very important to realise that this is not ramming worship down people’s throats. That is not what school worship is like. It is part of an educational experience and preparation for life. You never know when you will go to a Remembrance Day service, a wedding or to many other places. When the regiment based in Chester came back from Afghanistan for the presentation of medals, the soldiers wanted an act of worship. It was collective worship in the context of the Armed Forces. There are many contexts in life where some experience of collective worship earlier in life is an important preparation.

My second point is that the amendments are too tarred with secularist intent. Probably there is a case at some point for a cool, considered look at the provisions of collective worship. However, it must be done in a way that enhances the spiritual experience of education. This goes much further than religious experience, but religious experience is part of it. The amendments push too quickly in a particular direction. There is a case for a proper review and full consultation in due course. However, let us not be misled. Collective worship is exactly that: worship appropriate to the collection of people who are present.

[Lord Hill of Oareford]

My Lords, I start by thanking my noble friend Lord Avebury and the noble Baroness, Lady Turner of Camden, for coming to see me and talk about this and other issues that we will come to later on Report. I thank my noble friend also for setting out the issues and his position with his customary clarity and from a position that we all recognise is one of high principle. He knows from the conversation that we had where the Government stand on these issues, which is pretty much where the previous Government stood. As has been said by a number of noble Lords, our starting point is that the requirement is long-standing. It is difficult to dissociate that from the history of the country and the role that the church has played over a long period in individual schools and also collectively in society.

The Government believe that the experience of collective worship makes a contribution to the spiritual and moral development of young people, not just for those who attend religious schools. Collective worship in schools is different from the worship people choose to attend in a church, synagogue, mosque or other place of worship. The purpose of this requirement is not to force pupils or school staff to worship a deity but rather to understand and experience the benefits that joining together, inspired by the positive values found in Christianity and other religions, can bring to the individual and to the community. The guiding principle is that these arrangements should be flexible and fair to pupils and parents, as well as manageable for schools.

It is a matter of historical fact, as argued by the noble Lords, Lord Touhig and Lord Anderson of Swansea, and by my noble friend Lord Cormack, that the Christian traditions of our country have influenced and underpin our systems of law, justice and democracy. It is true, as has been said, that they have inspired and supported a tolerant and inclusive culture that welcomes and celebrates diversity. In the British Household Survey of 2010, more than 70 per cent of people said that their religion was Christian, and we think it right, therefore, that these values should underpin the ethos of our schools.

The law requires schools to provide collective worship that is relevant to all pupils, no matter what their background or beliefs, which should ensure that collective worship is presented in a way that benefits the spiritual, moral and cultural development of all children and young people. The requirement is for “broadly Christian” provision. It does not preclude the inclusion of other religions or consideration of the values that inform the practice of worship, which are common to many religions, as the right reverend Prelate the Bishop of Chester, rightly pointed out. Schools have the freedom, under the Education Act 1996, to apply for a determination from the local authority if they judge that it is not appropriate for the requirement for collective worship to be of a broadly Christian nature to apply to their school. That safeguard is in place. The Government respect the right of parents—

[Lord Avebury]

I am sorry to interrupt my noble friend but can he confirm that there cannot be a determination to have no act of collective worship at all where the majority of parents would wish to have that?

[Lord Hill of Oareford]

It is the case. I probably will not get the precise words right but my noble friend Lord Avebury accurately sums up the clause; they could make arrangements for provision to encompass a different religious belief. Parents can withdraw their children—

[Lord Anderson of Swansea]

Are there precedents for a majority of parents asking that there be no collective act of worship?

[Lord Hill of Oareford]

I am afraid that I do not know specific figures. I understand that overall there appear to be few cases of parents triggering such a thing. If we have better particulars I will send them to the noble Lord.

Parents can withdraw their children from collective worship if they wish to do so. Sixth-form pupils, as we have discussed, have this right. We think that the balance in allowing sixth-formers to decide for themselves whether to attend in line with their increasing maturity and independence is about right. We think that parents should be able to exercise those rights on behalf of children of compulsory school age. We would expect that, in exercising this right, parents would take their child’s views into account.

It is a sensitive area in which schools have to balance the rights of parents to have their children educated according to their religious or philosophical belief and those of children who have the right to manifest their own religious belief. They also have the right to express their views on matters that affect them. In practice, we think that schools are able to balance those competing rights and we would expect both parents and schools to take account of the views of children in making such decisions. We believe that schools can and do use the current system for collective worship to make provision for a variety of different perspectives. The situation we have arrived at, which I recognise is unsatisfactory to my noble friend Lord Avebury, is one that successive Governments have considered fair and flexible, and this Government continue to take that view. With that, I hope that my noble friend Lord Avebury will feel able to withdraw his amendment.

[Lord Avebury]

My Lords, it would be quite impossible to do justice to the extensive discussion that we have just been having, but it would be remiss of me not to thank all noble Lords who have taken part, particularly the noble Baroness, Lady Turner, with whom we had a similar discussion in Committee. Noble Lords have raised many different questions related to the collective worship issue, which has enabled us to make it clear that we are not talking about teaching about religions and the knowledge that children should have of the history of this country and the Christian background that we all share. That is part of religious education and we are not arguing that that should not be continued in the same way as it always has been and that it should not be underlined as part of the heritage of this country.

We are talking about a specific issue: whether people should be asked to pray to or worship a particular god at the time of the assembly that takes place at the beginning of the school day. In answer to the noble Lord, Lord Northbourne, I would say that most schools—probably a majority—already have discussions on moral and ethical issues at assembly that do not involve prayer or worship. They are breaking the law and do so in a way that conforms to the spirit of the legislation in that children can imbibe knowledge of the background of moral and ethical issues that underline our civilisation. I shall not give a sermon on what those moral and ethical issues are but it is fairly obvious that they include tolerance, kindness, compassion, respect for others and inclusiveness. By imposing the act of worship on children who do not believe in God or who do not wish to take part, we are not being inclusive but are deliberately excluding all those pupils who have a conscientious objection to acts of subjection to a supreme being.

I know that we have not reached the end of this discussion but we are at an intermediate stage when it would be proper for me to ask to test the opinion of the House on this subject. I beg to move.

Schools: History

Lord Hill of Oareford Excerpts

Thursday 20th October 2011 Lords Chamber

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, it is with more than my usual trepidation that I rise to speak because there have been times this afternoon when I felt as though 30 years had rolled back and I had been at an undergraduate tutorial with an overdue essay. However, this debate has been extremely good and thought-provoking, and there has been a large amount of agreement on a lot of the key themes. Like other noble Lords, I am grateful to my noble friend Lord Luke for securing the debate, getting it off to such a good start and setting out the issues for us so clearly.

Everyone else seems to have been declaring an interest, so I had better do so. I must correct the noble Baroness, Lady Jones of Whitchurch—I am not an expert, but as a boy I was hooked by RJ Unstead’s Story of Britain, with those wonderful illustrations by Victor Ambrus. I still have my copy at home and I should be happy to share it with anyone who has not read it. I also remember as a boy being fascinated by an encyclopaedia’s picture of French aristocrats being taken off in a tumbrel, and one of Constantine XI fighting heroically on the walls of Constantinople. I suspect that it was an early sign of a lifelong commitment to lost causes, with which I persist to this day.

I started to read history at university but I am afraid I did not complete it because I did not have the sticking power—it was a PhD on Russian history with Norman Stone. However, it was in the 1990s that a stint at Downing Street opened my eyes to medieval history because it dawned on me that I was effectively working in a medieval court. For the first time, I realised why the role of Keeper of the Stool was such an important job because, as political secretary, I spent a lot of my time going round clearing up after powerful people.

I therefore share the views expressed by all noble Lords about the importance of history, which was set out so powerfully by the noble Lord, Lord Morgan, and from another but equally important perspective by my noble friends Lady Benjamin and Lady Berridge. I think that there is agreement that history helps us to understand our common past, our shared values and our sense of national identity—a point made by my noble friend Lord Cormack, but underlined by the noble Baroness, Lady Andrews. She correctly said that history teaching is more important than ever as our society becomes more varied. Understanding history helps us to make sense of the present, as has been argued by a number of noble Lords. It develops analytical skills and helps us to understand cause and effect—one of the points that the noble Baroness, Lady Bakewell, underlined. History helps give us the ability to argue and enables us all to make connections. Everyone here is agreed on the importance of history as a subject.

We heard a number of examples of some of the things that people do not know about history. We heard about Churchill. I saw another survey that suggested that nearly half the young people aged between 18 and 24 did not know that Nelson commanded the fleet at Trafalgar and led it to victory. Nearly half did not know that the Romans built Hadrian’s Wall. That links to the point made by the noble Lord, Lord Bew, about the importance of British history. He made an extremely important point about the opportunity we have to avoid a false left/right divide on this. For most of the time in this debate we have managed to avoid that. I accept that it is impossible to dissociate history and the study of it from a political perspective. However, we have been discussing the chronology and the sequencing of history—some of the great events. Noble Lords may think that I am a mad optimist but it is possible to separate some of the facts of our history and of world history. My noble friend Lord Smith of Clifton made the important point that we increasingly need our children to have an awareness of world history. However, it is possible to separate an understanding of fact from interpretation. Interpretation is something that comes increasingly with age and knowledge, but there is a factual basis that we should be able to work hard to identify.

In terms of current take-up we know that, alongside geography and modern foreign languages, the number of pupils taking history has been falling. It is down from 39 per cent doing GCSE in 1995, to 30 to 31 per cent last year. The proportion taking A-level has been static and the number of students studying history at university has risen, but that rise is slower than the average increase in university enrolments generally. We also know that while just over 30 per cent of children in maintained schools took a history GCSE in 2010, nearly half of children in independent schools did so. That relates to a point well made by a number of noble Lords about the importance of making sure that all our children have a chance to study history, and that those from more disadvantaged backgrounds do not miss out on the opportunity to do so.

My noble friend Lord Younger of Leckie told us about the Ofsted report in 2010. The noble Baroness, Lady Jones of Whitchurch, also referred to it and was absolutely right to say that the report found much to commend in the teaching of history at both primary and secondary level and in the work that our teachers are doing. It found many examples of extremely good practice. I very much associate myself with that point of view.

The Ofsted report also said—and this point has been recognised and accepted on all sides of the House—that at primary level,

“some pupils found it difficult to place the historical episodes they had studied within any coherent, long-term narrative… Their chronological understanding was often underdeveloped and so they found it difficult to link developments together”.

They also commented that,

“the curriculum structure for primary schools was itself episodic”.

That links to some of the points made by my noble friend Lady Walmsley. The report recommended that pupils should study overview as well as in-depth topics. That relates to a point about bore-holes and breadth, raised by the noble Baroness, Lady Andrews. Ofsted also thought, again relating to the important point raised by my noble friend Lady Walmsley, that primary school teachers needed more subject-specific continuous professional development opportunities and that all students in secondary schools should benefit from a significant amount of history until at least 14.

I felt there was broadly a shared analysis of what we think the main issues confronting us are. There are concerns about the bitty nature of the curriculum and a lack of sweep and chronological development, a point made by the noble Lord, Lord Morgan; about the support available to teachers to enable them to teach history well and more broadly; and about the time available in the timetable for teaching history, particularly at key stage 3. There is also some concern about the numbers of children who want to study history at GCSE level.

I will try to set out what the Government are doing in three broad areas: first, the curriculum; secondly, encouraging the take-up of history; and thirdly, support for teachers and initial teacher training. So far as the curriculum is concerned, we had an extremely good debate which flushed out some of the difficulties. The noble Baroness, Lady Bakewell, talked about curriculum wars and the history of that; my noble friend Lord Addington talked about fashions. Both those points are well made. I think that the noble Baroness, Lady Jones of Whitchurch, agrees with our argument that, as the national curriculum developed, it has covered more subjects, prescribed more outcomes and taken up more school time than originally intended.

Overall, our intention through the curriculum review is to slim the curriculum down; to free up time in the school day; and to free teachers to use their judgment to design curricula that best meet needs of their pupils. We want the new national curriculum to be based on a body of essential knowledge that children should be expected to acquire in key subjects during their school career, to cover for all children their cultural and scientific inheritance—an important point was made about the importance of science and technology—to enhance their understanding of the world around them, and to expose them, if we can, to the best of what has been thought and written.

The review is being conducted in two phases. In the first phase, we are designing new programmes of study for those subjects—English, maths, science and PE—which we have already confirmed will continue to be a part of the national curriculum at all four key stages. We are also considering which of the other subjects that currently form the national curriculum, including history, should be part of the national curriculum in future and at which key stages. The second phase of the review, which will start in early 2012, will produce programmes of study for those other subjects which remain within the national curriculum. The review will also advise on whether non-statutory programmes of study should be published for any subjects that are not to be included in the new national curriculum.

The review began with a public call for evidence that invited views from all interested parties on what a new curriculum should look like. I understand that the call for evidence closed on 14 April; the results will be published in due course. There will be further widescale public consultation before any final decision is made. I agree with the point made by the noble Lord, Lord Davies of Oldham, that it is important that there should be widespread discussion representing a range of views.

The noble Baroness, Lady Andrews, specifically asked whether the EBacc is having any effect on encouraging the take-up of history. The Government think that a child's education is diminished without a sound understanding of history. We know that history, alongside some other subjects, has been in decline for a number of years. The Government believe that there are some academic subjects, the core subjects in the English baccalaureate—English, maths, the sciences, languages and humanity—in which too few pupils are achieving, or have even had the opportunity to study. As my noble friend Lord Luke pointed out at the beginning of the debate, the situation is worse for pupils on free school meals. The disparity between the percentage of those on free school meals who are taking the EBacc subjects—which the Russell Group of universities states are those that best equip children to take degrees in its universities—and others is very large. Only 4 per cent of children on free school meals achieved the EBacc subjects last year, whereas for children as a whole across the country, the figure was 16 per cent. We need to address that issue.

I know that all noble Lords believe that many more pupils have the potential to succeed in those subjects, and we feel that we should do everything that we can to help them have that opportunity. We know that pupils who have achieved the EBacc combination of subjects have proved more likely to go onto A-levels, have attempted a greater number of A-levels and have achieved better results. We are trying through the EBacc to allow parents and pupils to see for the first time how their school is performing against those key academic subjects. In doing so, we hope to encourage a greater number of schools to offer a broader set of academic subjects, which would include history, to more of their pupils.

The early indications are that the introduction of the EBacc is encouraging the take-up of history. Some research was carried out on behalf of the department by the National Centre for Social Research over the summer. That suggests that 39 per cent of pupils entering GCSEs in 2013 are expected to take history. If that turns out to be the case, that would be up by 8 per cent from this year and back to the level that it was that in 1995. Time will tell whether that turns out to be true, but I hope noble Lords who are keen, as we all are, to see more children carrying on with history up to the age of 16 will regard that as an encouraging sign.

That is linked with the important question about teacher supply and teacher training. The EBacc does have implications for teacher supply. If more children want to study history, we will need to have more history teachers. The modelling undertaken by the department to set future-year ITT places is taking that into account. I am told that there is currently healthy interest in training to become a history teacher. My noble friend Lady Walmsley rightly mentioned the importance of CPD, or continuing professional development. Our overall approach to that was laid out in our White Paper published in November 2010. In broad terms we are trying to improve the capacity for schools to take the lead for the training and development of teachers and to create more opportunities for peer-to-peer learning, which is what we have been doing this afternoon. Our approach is based on research that shows that teachers learn best through observing teaching and being observed and receiving feedback from other professionals. We are creating a new national network of teaching schools which will give outstanding schools the role of leading the training and professional development of teachers and head teachers so that all schools have better access to high-quality professional and leadership development. The first 100 teaching schools have already been established and we have a further 100 planned for April 2012. They will be the embodiment of our commitment to CPD and will run a range of programmes for schools, including in history, to help address some of these important issues.

Earlier this year we published an initial teacher training strategy which is out for discussion at the moment. That contains proposals for giving schools the opportunity to play a greater role in teacher training, the funding of ITT, toughening the entry criteria, and prioritising training most relevant to classroom practice. We are finalising proposals for initial teacher training in the light of responses we have received to that and we will publish a plan shortly. We believe overall, alongside work we are doing in looking at proposals for a single set of new standards for all qualified teachers, that these reforms, the network of teaching schools and a new set of teacher standards will improve the rigour and quality of teaching in all subjects, including history.

An interesting part of the debate was on issues around learning outside the classroom, enthusiasm and the importance of enthusiastic teachers, and accessibility. My noble friend Lady Berridge rightly talked about the importance of bringing outsiders in. The noble Baroness, Lady Andrews, talked about the kind of work that English Heritage and other organisations can do to enthuse and inspire children and bring history to life in a way that someone standing up in a classroom will not necessarily do. I do not think that helping children have a better sense of the chronology of the events in history needs to come from a dry as dust, learning by rote, going back to the 1950s approach to teaching. The development of the media and all kinds of new ways of learning that all of us, unfortunately, were not able to benefit from provide fantastic opportunities for children to become engaged in and get a love of history and be excited and inspired by it. Learning outside the classroom is extremely important and going to battlefields, visiting the Imperial War Museum and going to Dover Castle—which I would love to do one day if I am invited—are all ways that we can bring history to life. We think schools can work out how to do that but there is more the Government can do to make it easier for them to take pupils on trips by taking steps to reduce teachers’ fears of legal action for failures in the dreaded and sometimes mythical area of health and safety. We want teachers to be confident that they can take pupils to this kind of activity, and we will work with the Health and Safety Executive on that.

I remember reading a few years back pronouncements that history was dead. Today's debate shows that it is very much alive. We know that there are more history books being written and that there is more history on the television; we have heard about the interest people have in archaeology and in their own ancestry. As was said, history is full of ripping yarns. There is no doubting the passion and knowledge brought to us in today's debate. I do not share the knowledge of all noble Lords—for instance, that of the noble Lord, Lord Thomas of Swynnerton—but I hope that at least I share some of the passion expressed this afternoon. I will bring the debate to the attention of my honourable friend Mr Gibb, who is leading our curriculum review, and also to the attention of my right honourable friend the Secretary of State, whose commitment to history, as some noble Lords have mentioned, is well known.

The Government take this seriously. There is much more work to do, but I hope that we may have started to turn the corner. The timing of the debate, as the Government consider the national curriculum review, is excellent. I congratulate my noble friend Lord Luke on it once again, and on providing us all with the opportunity for the thoughtful discussion that we had.

Education Bill

Lord Hill of Oareford Excerpts

Tuesday 18th October 2011 Lords Chamber

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, it has been an extremely good debate to kick off Report stage. Like others, I thank the noble Lord, Lord Northbourne, for raising this issue. No one has done more than him to keep the importance of parenting before this House. No one could possibly disagree with him about the vital role that parents play and about the importance of helping children get off to the best possible start in life. He is always keen for the Government to do more, but I hope he will accept that there is a lot going on in the early years already.

I imagine the noble Lord saw the announcement made yesterday by my honourable friend Sarah Teather about the parenting trials that will be run in Middlesbrough, High Peak and Camden. My noble friend Lady Walmsley referred to the lead that my honourable friend Sarah Teather is taking in this respect. Those trials will give parents access to parenting classes during the first five years of their child’s life so they can have help with parenting until the child starts school. I would be very happy to arrange for the noble Lord, Lord Northbourne, and any other noble Lords who are interested, to be briefed more fully on those trials.

As the noble Baroness, Lady Hughes of Stretford, said, the Government are protecting support and advice for parents in some other ways as well. We funded a range of voluntary and community sector organisations to operate online and telephone support services which, in the past three years, have had 10 million contacts from parents. They give help to parents in the important job of bringing up their children, and there is more news coming on those later this week.

The noble Lord, Lord Northbourne, has tabled three separate amendments relating to parenting. The first would be a duty on parents. While I agree that parents—both fathers and mothers, as has been said, not just mothers—have a responsibility to provide for their child, including promoting their personal, social and emotional development, we do not believe that imposing declaratory obligations on parents is the right way forward, as my noble friend Lord Eden of Winton, also argued. We know that most parents do a good job, as my noble friend Lord Storey reminded us, many in difficult circumstances, and we therefore do not think that they need a new legal duty to do what they do naturally. The duty would also be unlikely to motivate the small number of parents who do not do a good job. We would argue that what is needed is practical help and support of the kind that a number of noble Lords have already raised—for example, about communication, a point that the noble Baroness, Lady Hughes of Stretford, underlined from her distinguished experience as Children’s Minister.

The kind of support we provide is offered through Sure Start children’s centres. I know that the noble Baroness is concerned about those and their future, as we discussed yesterday and will discuss later today. The Government are putting in enough money, through the early intervention grant, to sustain a national network of Sure Start children’s centres and to make sure that they focus on those with the greatest disadvantage. I have mentioned the parenting trials and the helpline services. There are programmes for families with multiple problems or the kind of flexible working that was mentioned by the noble Baroness, Lady Howe of Idlicote. We are also adding 4,200 more health visitors. Those are the kind of health visitors who will be able to carry out the sort of assessment that was mentioned by the noble Lord, Lord Ramsbotham. I shall come back on his points in a moment.

We have protected the 15 hours a week free nursery education for three and four year-olds, and, subject to parliamentary approval, we will extend that to disadvantaged two year-olds. Local authorities are under statutory duties to ensure that there are sufficient children’s centres to meet local need, so far as is reasonably practical, and to provide information to parents about the services available locally to help them. That brings us on to the important points that were raised about information, particularly by the noble Baroness, Lady Howe. The point raised by the noble Lord, Lord Ramsbotham, was echoed by my noble friend Lady Benjamin. He is right to highlight the importance of speech and language to children’s school readiness. The Government, on the recommendations of Dame Clare Tickell, are introducing a review of children’s progress at age two. We are looking at bringing the health and education aspects together in the way that the noble Lord said. I know that my honourable friend Sarah Teather is looking at that, but I will also raise the point with my noble friend Lord Howe.

With regard to information generally, there is quite a lot of information out there. The early years foundation stage profile gathers information on a child’s preparedness for school. Under existing legislation, local authorities are required to collect information about children’s progress in the early years foundation stage at age five, and the Secretary of State publishes these data annually at both the local authority and national level. But what I will do, which might help noble Lords, is to write to the noble Baroness, Lady Howe, and set out in one place the various ways in which information is provided so that we can pull it all together and see what is out there.

Like all other noble Lords who have spoken, I am extremely grateful to the noble Lord, Lord Northbourne, for raising the profile of parenting. I would be keen to take him up on his generous offer of discussing these important issues further after Report stage and to arrange for him to meet my honourable friend Sarah Teather who has responsibility. I will speak to the noble Lord with a great deal of pleasure.

As regards these amendments, we do not think that the statutory declaration is a necessary or practical way forward. I know that I will have disappointed the noble Lord but in light of the existing duties around the provision of information and services, I would ask him to withdraw his amendment.

[Lord Northbourne]

My Lords, I always get a bit nervous. It makes me feel a bit of a bore when everyone is so kind as to say that I am always raising these issues. But they are none the less important. Perhaps I may take what the Minister said first—I think it was referred to by the noble Lords, Lord Eden and Lord Peston, one against and one in favour—as regards why it would be a good idea to put something in the Bill. It is not at all an original idea. The Children (Scotland) Act 1995 already has a very good definition of the responsibilities of parenthood.

Earlier this autumn, I was at a wedding in France. I was interested that the mayor read out certain extracts from the Code Civil to the married couple. Loosely interpreted, one extract said, “If you have children, you as parents will be responsible for feeding and caring for your children”. It is not unthinkable or way out to suggest that some sort of hint of obligation could be in statute. I suggest it more as a matter of principle. As someone said, our moral values have hugely changed, not always for the worse, since the introduction of contraception. We really have not thought the issue through properly to ensure that everyone understands what we as a society believe to be the responsibilities of bringing a child into the world. Somewhere, somehow, some Government have to have the courage to get people together and to say, “Look, this seems to be a reasonable compromise solution”. It should be thought of in terms of the rights of the child.

I do not think that the noble Lord spoke to my two other amendments but I shall read what he said. There is an element of chaos in the organisation that the Government are proposing. The speeches of a number of noble Lords today have shown that one person is doing one thing and another is doing something else, but one did not know that the other was going to do it, and this, that and the other. Somehow, it needs pulling together as an organisation if we are to get results, and get them at the right price. I am sure that an enormous amount of money is now being wasted in terms of duplication.

I am very grateful to so many noble Lords for participating in the debate on this important subject. I had something to say about what the noble Baroness, Lady Walmsley, said but I have forgotten what it was. I hope that we shall move forward on these issues from one Bill to the next. On that basis, I beg leave to withdraw the amendment.

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[Lord Northbourne]

My Lords, I would at this point offer a brief thought on this amendment, which I do not entirely support. All the payments we are making are about inputs and what really matters is outcomes. How and whether it is possible to measure the output from a children’s centre, I am not entirely clear. It would not be easy and, so far as I have had any experience of children’s centres, there is a wide variation; not only in the quality of the service that they offer, but also in the clientele they offer it to. In one that I visited, it was quite manifest that the parents were quite wealthy, and when I asked them what they did about hard-to-reach families, they sucked their teeth and said, “Well, they are hard to reach”. So it is outputs that we should be paying for, not inputs.

[Lord Hill of Oareford]

My Lords, it is clear from the discussions that we had earlier in Committee and the exchange today that everyone on all sides of this House agrees on the importance of investing in children’s early years. We know that high quality early education is crucial to achieving greater social mobility and to improving the life chances of all children. That is why the Government seek to extend the free entitlement to early education to disadvantaged two year-olds. Clause 1 allows us to build on the provision that the noble Baroness, Lady Hughes of Stretford, established through the Childcare Act 2006. I was grateful for her generous welcome for the measure. I know how much it means to her. I also know what a respected Children’s Minister she was, so I think there is agreement across the House on the importance of this measure.

Since we last debated this clause in Committee, the Government have published their Families in the Foundation Years policy statement. That sets out the Government’s vision for the foundation years as a whole and reaffirms our commitment further to improve early years services. It includes a number of proposals specifically on the early education free entitlement. For example, we intend to launch shortly a public consultation on how the flexibility and quality of provision of the entitlement could be improved. This consultation will also cover the criteria for which two year-olds should be eligible for the free entitlement.

Despite the challenging economic circumstances we face, we have protected funding for the three and four year-old entitlement and provided the additional funding that the noble Baroness, Lady Hughes of Stretford, referred to for disadvantaged two year-olds.

The noble Baroness, Lady Hughes, set out her concerns underlying Amendment 4, and I understand what she seeks to achieve. The current entitlement for three and four year-olds is set at 570 hours a year, over no fewer than 38 weeks a year. That is, 15 hours a week. We now seek to extend this to all disadvantaged two year-olds. While I understand the case that the noble Baroness made about protecting the level of this entitlement in primary legislation, the question that I would ask is the same that my noble friend Lady Walmsley asked: protection from whom?

This Government, as my noble friend says—I am sure she is accurate, since she knows the coalition agreement extremely well—have given repeated assurances over the early education entitlement. I am also sure the noble Baroness, Lady Hughes, recognises that, and her party clearly believe that one would want to move only in one direction. So do the Liberal Democrats.

The first amendment in this group seeks to tie the hands of future Governments regarding the entitlement and I would contend that we do not think it is the place for primary legislation to prescribe that level of the entitlement. Those details should lie in regulations. That was the approach taken by the previous Government when they initiated free entitlement for three and four year-olds in the Childcare Act 2006. When the noble Baroness was in my department, they argued in their memorandum to the Delegated Powers and Regulatory Reform Committee in 2006 that:

“It is appropriate that this provision is in secondary legislation to give flexibility to react to changing circumstances”.

We believe that was the right approach.

Subsequent Governments will have to make their own judgments on the appropriate level of the free entitlement. We are responding to lessons that have been learned from experience since 2006, and in particular in extending it to disadvantaged two year-olds, and it is possible that future experience may throw up other lessons. So, as the noble Baroness conceded that she would expect, we believe the first amendment is unnecessary.

The noble Baroness’s second amendment concerns the sufficiency of children centres to meet local need and the qualifications of the staff working at them. There is no difference between us about the importance that we attribute to children centres. They are vital to improving outcomes for children and their families—a point made also by the noble Lord, Lord Northbourne—and it is the outcomes rather than the inputs, to use the jargon, which are important.

There are, year on year, overall improvements in early years foundation stage outcomes and that is vital. We know that 94 per cent of children who achieved a good level of development at age five in 2007 went on to achieve the expected levels for reading at key stage 1 in 2009. So there is a clear link.

The existing legislation requires local authorities to ensure there are sufficient children centres to meet local need so far as is reasonably practicable. The effect of the noble Baroness’s amendment would be to take out having regard to what is “reasonably practicable”. We should stick with the current formulation. As my noble friend Lady Walmsley argued, local authorities need the flexibility to be able to determine local priorities in the context of their many responsibilities and, yes, the resources that they have available to them. Again, that was the position that the previous Government took in 2009: local authorities must be able to consider their local context, their resources and their overall priorities as they strive to ensure access to services that improve young children’s outcomes.

The noble Baroness, Lady Hughes of Stretford, is right to say that local authorities are facing difficult financial circumstances. I know of her concern about the funding going into Sure Start children centres. She or one of her colleagues in another place has carried out their own work to ascertain the extent of what is going on. The department is monitoring the situation and is working with local authorities to get an accurate fix on what is happening. She will know probably better than me that it is a fluid situation, and we want information from which we can see how things are developing.

As my noble friend Lady Walmsley has just mentioned, and mentioned yesterday, many authorities are keeping all their children centres open. Local authorities should have the flexibility to deliver services in the ways they think best meet local needs within the resources that we have.

I agree with the noble Baroness, Lady Hughes of Stretford, about the importance of qualifications. Again she will know that for some roles qualification requirements are in place. The statutory framework for the early years foundation stage specifies that all supervisors and managers of registered childcare settings for children under five must hold a full and relevant level 3 qualification and half of all other staff must hold a full and relevant level 2 qualification. Those health services delivered through children centres can be provided only by suitably qualified and experienced professionals because of other statutory requirements already in place. As Dame Clare Tickell said in her recent review, there has been an improvement in the skills of the early education and childcare workforce in recent years. We have set up recently a review of qualifications for the early education and childcare sector, led by Professor Cathy Nutbrown, to consider how best to strengthen qualifications and career pathways.

--- Later in debate ---

[Baroness Howarth of Breckland]

My Lords, I had not intended to speak, but it was in hearing the noble Baroness, Lady Morris, talk about clarity, that reminded me that I had had a letter from someone in a school. Your Lordships will understand why I quote it:

“Please could you register my welcome overall of the trust put in teachers and school leaders to manage behaviour more effectively in schools and colleges. However, I am concerned that the measures taken to improve the authority of teachers are being seen as threats to the child and to the member of staff concerned. Searches should be allowed by staff and good practice ensures that a teacher will ask for a witness for the search”.

It shows that the common sense that the ministry is trying to encourage exists in schools, but that there is a lack of clarity. The real need is for clear guidance, and indeed the amendment put down by the noble Baroness, Lady Walmsley, would help people to understand. I think it was the noble Baroness, Lady Morris, who said that there are so many things that are believed in schools that are not actually the law or statute.

This has been a wonderful Second Reading debate, I have to say. I have thoroughly enjoyed some of the speeches, and not having had an opportunity to get to the actual Second Reading, I am now taking my opportunity, too. We have to remind ourselves that not everything was wonderful in the past, and that there are some things that are significantly better. One thing that is significantly better is child safeguarding. We abandon anything that continues to safeguard children, as the noble Baroness was saying with regard to Barnardo’s, at our risk.

I am not an educationalist but I suspect that my pedigree in safeguarding is probably as good as anyone in this House. I encourage the Minister to think carefully before abandoning those controls where it is quite clear that teachers have the common sense to think that they need a witness. But it is not always the teachers who end up doing these things. I have known of caretakers being asked to “take that mobile phone off young Jones”. It is about people who would have other motives for touching a child.

I also believe that no male adult should handle a young woman aged 12 or 13, and certainly not without a witness. If you talk to young girls, they say that they feel that that is an assault on their dignity and it is something that goes with them. I encourage the Minister to think carefully about ensuring that we have either the amendment tabled by the noble Baroness, Lady Walmsley—to confirm to the Front Bench, I am suggesting one of the amendments—or extremely clear guidance for teachers so that they know that they do not search in unsafe situations.

[Lord Hill of Oareford]

Perhaps I may start with some general comments about some of the themes that have emerged. I agree with what the noble Baroness, Lady Morris, said about her underlying point, consistency, and the difficulty that we as legislators have in translating what we are trying to do in classrooms so that teachers know where they stand. That links to the point again about clarity in guidance, to which I will come back later.

My noble friend Lord Cormack, who has not spoken on the Education Bill previously, made a powerful speech about the importance of trust, which we all share. By the same token, some of the discussion today highlighted tensions between wanting to get to a position where we trust professionals more—and I think we would all agree with that—while wanting to have our own safeguards in place to ensure that in trusting them the things we most care about are protected. That is a difficult balance. My noble friend Lord Storey also threw in parents and lawyers for good measure.

It is absolutely right that schools are operating in a far more complicated environment than was the case in the past. I very much recognise the description given by the noble Lord, Lord Peston, of the purpose of a school, which I think still holds true today. But they certainly have to operate in a far more complicated world where they are asked to do much more by society than was once the case. I recognise that there are anxieties, which I will attempt to address, about the extension of the powers on search. I see them as an attempt to provide greater space in a very small number of exceptional cases for professional judgment to be exercised by heads and teachers, and to try to enlarge the space where we can trust heads to make the judgments that they believe are right to safeguard the children in their care.

There was broad agreement that we want head teachers and teachers to be able to ensure the safety of the children. In fact, it is important to say that most schools are safe places in which children can learn. It is important to get that in proportion and not to imagine that we are confronted with a problem that does not exist—it is important to focus on the problem that does exist.

When the previous Government introduced searching legislation, they recognised that unfortunately there are instances where children have items that can cause harm or injury to themselves or to others. Under existing law, members of school or college staff can search for a number of harmful items, including knives and weapons, alcohol, illegal drugs and stolen items. We are proposing a small extension to those powers so that teachers can keep all potentially harmful items out of the classroom.

I want to set out briefly, on the record, the safeguards within the legislation that ensure these powers are used appropriately. A search of a student without their consent can only be carried out in certain circumstances. First, the staff member conducting the search must be designated by the head teacher or the principal. I agree that the head teacher should consider the skills of any staff member they are designating, and I am sure that most will do so. In the light of views that were expressed in the debate on this issue in Committee, we have taken on board the recommendation that, when designating a member of staff, the head teacher should consider whether that member of staff needs any additional training. That recommendation is included in the department’s published advice to schools.

Secondly, a member of staff must reasonably suspect that the pupil is in possession of a prohibited item. A pupil cannot be randomly searched on a whim. Thirdly, staff may not require the student to remove any clothing other than outer clothing. These conditions—which are in law—will remain unchanged. It is also the case that a search can only be carried out by someone of the same sex as the student and in the presence of a witness except—and this is the change which we are seeking to make—in certain emergency situations. The requirement that the searcher is the same sex as the pupil and that a witness is present will continue to apply in nearly all searches, as a number of noble Lords have argued. Where it is practical to summon a staff member of the same sex as the pupil and a witness then a teacher wishing to conduct a search must do so. There is no disagreement at all on that.

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[Lord Hill of Oareford]

My Lords, as the noble Lord, Lord Touhig, powerfully argued, we know that exclusion disproportionately affects some of the most vulnerable children in society. It affects particularly children with special educational needs or disabilities and we know that pupils with statements of SEN are eight times more likely to be excluded than an average child. That knowledge lies behind the amendments in this group, and I will try to address as best I can the concerns that underpin them.

There is agreement across this House that the goal of policy overall should be to reduce the number of exclusions by improving behaviour in schools. We are seeking to do that with these measures but we also know that there are many potential factors that contribute to a pupil’s behaviour. Therefore, there needs to be a wide-ranging response to this issue, which is why we are looking at trying to reform the whole exclusion process and trialling, as was mentioned by the noble Baroness, Lady Hughes of Stretford, a new exclusion system in local authorities across the country. I will come back to that in a moment. Overall, the aims of our reforms are to try to support schools to intervene earlier to identify underlying issues; to ensure that proper consideration is given to pupils’ needs throughout the exclusion process; and that where a child has to be excluded, to ensure that they receive a decent education, suited to their needs, so that exclusion from a school is not an exclusion from a good education.

We are trialling this new approach over the next three years and are looking at making the schools taking part in the trials responsible for any pupil they exclude, and accountable for both their attainment and attendance. Schools will get a devolved budget from which they will be expected to commission suitable alternative provision for excluded pupils, holding providers to account for the quality of the education that a pupil receives. Schools will also be able to use this budget to intervene with pupils at risk of exclusion—trying to spot these issues before it is too late—to tackle any underlying causes of poor behaviour.

The evaluation of these trials will pay particular attention to the outcomes for pupils who are most vulnerable to exclusion, such as pupils with special educational needs or those—we have not mentioned them today but we did in Committee—from ethnic groups with a disproportionately high exclusion rate.

[Lord Elton]

My Lords, will the noble Lord forgive me as I may have misunderstood him? Did I understand him to say that there is a separate budget for children who have been excluded? If so, would this be additional? That would be an inducement to exclude which is not what we wish to encourage.

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[Lord Hill of Oareford]

The idea behind the trials—I think it is based on what has already been happening in Cambridgeshire—is that the budget which currently sits with the local authority to pay for alternative provision would effectively be devolved to schools. Schools in that case would have a very clear incentive not to end up dumping a child in expensive provision but to do their best early on to make the best possible provision they can and seek to avoid exclusion. In Cambridgeshire the number of permanent exclusions fell when it tried this approach from more than 500 a year to fewer than 100. However, the experiences of these authorities also show us that this is not something to be rushed and that it requires careful implementation. Our view would be that we should test the approach rigorously, evaluate it and then legislate.

The point about an automatic trigger was raised by the noble Lords, Lord Low and Lord Touhig. We are seeking to promote early intervention through the use of multi-agency assessments. Following comments made at an earlier stage, we have already made clear in our guidance that schools should consider arranging such an assessment for pupils who display continuous disruptive behaviour. The noble Baroness, Lady Hughes, said that the issue of early intervention was not properly addressed in the draft guidance. I thought we had addressed it but it is draft guidance so I welcome her views on it as I would views from other noble Lords. We have reinforced the importance of multi-agency assessments in the draft I have circulated. I would argue that we should leave the detail of the trigger for such assessments to the discretion of schools. I accept that in a lot of cases two fixed-period exclusions might be an appropriate trigger but in some cases a single serious incident of out-of-character poor behaviour might be sufficient cause for concern.

With regard to allowing independent review panels to be able to reinstate, there are cases—the Government would argue and I think it is a point that has just been echoed by the noble Lord, Lord Sutherland of Houndwood—where sometimes unfortunately exclusion is necessary as a last resort. We want a system which works for the education and welfare of all pupils at a school. It is right that, in some cases, schools should be directed to reconsider their decision to exclude a child. It is also right that a school should retain a level of responsibility towards a pupil, even if that pupil is excluded. However, a directed reinstatement is not necessarily in the best interests of an excluded pupil and, as we heard in Committee and from evidence given to this House and in another place from head teachers, it can have a devastating impact on the morale of the other pupils and staff.

We hope that our system of independent review panels will provide access to a quick, fair and independent process for reviewing an exclusion. However, we have put in safeguards in particular regarding the role of the special educational needs expert. Our revised guidance gives particular emphasis to ensuring the fair treatment of pupils who are most vulnerable to exclusion. I am grateful to the noble Lord, Lord Rix, who sadly is not here today, and to the noble Lord, Lord Low, who I am meeting again tomorrow on this subject. I am grateful to them for the meetings we have had on this issue and to the Special Educational Consortium. I am grateful for the very helpful contributions they have made while we have been developing the guidance.

The guidance makes clear that schools’ duties under the Equality Act not to discriminate against, harass or victimise pupils because of disability need be taken into account when deciding whether to exclude a pupil. It also says that schools must ensure that their policies, such as their behaviour policy, do not discriminate against pupils by unfairly increasing their risk of exclusion. We have retained the existing statutory guidance that, as far as possible, schools should avoid excluding a pupil with a statement of SEN. We have strengthened this position to make it clear that, where a school is considering the permanent exclusion of a pupil with a statement, it should begin a discussion with the responsible local authority, highlighting its concerns about the placement of the pupil in the school and the possible need for an alternative placement. I hope that these discussions would decrease the likelihood of pupils with a statement being excluded. Where a pupil does need to be excluded, we hope it will help support the local authority to ensure that appropriate provision is put in place quickly.

Amendment 17 relates to the governing body review of exclusion. We think that where a pupil is permanently excluded there needs to be a quick and fair process for reviewing this decision and that the process should give proper consideration to a pupil’s SEN. The governing body review provides an appropriate and proportionate first stage for reviewing a head teacher’s decision to exclude.

The revised guidance makes clear that governing body reviews should have access to relevant information about a pupil’s SEN, such as a statement of special educational needs and the outcome of any multiagency assessment arranged by the school. I agree that in many cases an important part of this information would be a report from the special educational needs co-ordinator, but there may be occasions where another member of staff is better placed to provide detailed information on a child’s special needs. I think that requiring information about the pupil’s SEN to be provided to the governing body is absolutely right but I do not want to prescribe precisely who needs to provide it.

Where a pupil is excluded, there must be a quick process for reviewing the decision. As we have said, we think that the governing body provides an appropriate and proportionate first stage for reviewing a head teacher’s decision to exclude. Where a governing body takes the difficult decision to uphold a permanent exclusion, there must be a right for a parent to ask for it to be reviewed by an independent body. Our independent review panels will allow that to happen quickly and will improve on the current system in providing extra help for excluded pupils with SEN. The introduction of an SEN expert offers a significant additional safeguard. The SEN expert would be free to submit written evidence to an independent review panel but they must be present at the review. We propose to place a requirement on independent review panels that, where appointed, they should seek and have regard to the expert’s views.

As regards the detailed points on regulations made by the noble Lords, Lord Touhig and Lord Low, I can reassure them that many of the things they are seeking to place in regulations will be there. Regulations will set out the right for all parents to request an SEN expert and put a duty on schools to notify parents of this right when a governing body upholds a permanent exclusion. We are clear that the expert must be someone with sufficient relevant professional expertise—that point was raised by the noble Lord, Lord Low—to be able to offer expert advice; for example, an educational psychologist. Because we do not want inadvertently to rule out someone who would be suitable for this role in a particular case, we intend that the details of who is eligible to be an SEN expert will be clarified in statutory guidance rather than in regulation, so that review panels have discretion to choose the most appropriate expert in each case. We have had very helpful discussions with the Special Educational Consortium about the sort of person who would be eligible for this role which we are keen to continue.

I agree with the point raised by the noble Lord, Lord Low, that all parties to an independent review panel must have trust in the advice of the SEN expert. This is why we are proposing to make it clear that local authorities and academies should offer parents a choice of SEN expert in order to reinforce their confidence in the appointment. These expectations will be set out in statutory guidance. The guidance also makes clear that where a pupil has identified special educational needs, we expect schools to provide to the panel, and the expert, any relevant information about those needs and the steps that the school is taking to manage them. This includes a pupil’s statement of SEN, the annual review or the outcome of a multiagency assessment. Parents will also be able to submit written evidence explaining if they feel that their child’s special educational needs are relevant when making their case to the review panel.

Parents will have the right to request an SEN expert and the expert will be able to advise the panel on the parent’s case. That could include advising a panel on whether the actions taken by a school to identify or address a pupil’s SEN might be considered reasonable and whether a school might reasonably have been expected to intervene earlier in order to prevent the exclusion. We also propose to include an evaluation of the role of SEN expert as part of a study of the relative benefits between independent review panels and the First-tier Tribunal. This will provide us with the views of all parties on the effectiveness of the role of the SEN expert, including parents and pupils. We will consider the findings of this review in deciding whether there is a need to strengthen the regulations or guidance to ensure that the role is being used effectively.

I am sorry to have spoken at some length but these are important issues and I was keen to set out the Government’s response in as much detail as I could because I know that there have been concerns. I hope I have reassured noble Lords that we are taking steps to support schools to identify and address pupils’ special educational needs and we are committed to the effective use of the SEN expert. We believe that the new process, supported by the revised guidance, provides significant additional safeguards for pupils with SEN. I will continue to seek the input of noble Lords and the Special Educational Consortium in finalising the guidance. As I said, I am meeting the noble Lord, Lord Low, tomorrow and I am sure that we shall discuss the matter further then. With that, and looking forward to that conversation, I ask the noble Lord to withdraw the amendment.

[Lord Low of Dalston]

My Lords, I am very grateful to all those who have spoken, particularly to the Minister for his very full response. It should not have wearied the House as a lot of issues required to be addressed. The Minister has done justice to them in addressing them so comprehensively. In his response he has shown that he has been listening to the debate, as the noble Lord, Lord Touhig, requested. That being the case, it would be churlish not to withdraw the amendment.

The Minister has indicated that quite a lot of what these amendments are asking for will be included in regulations or statutory guidance and that there will be ongoing consultation with noble Lords and the sector about the form of those regulations and the guidance—at least, I take it that that is what there will be ongoing discussion about. The Minister has also shown that he was responsive to the points that were very well made by the noble Baroness, Lady Hughes, about the importance of intervening early. The more we can get that into the guidance, the better. The more we can indicate that the guidance is meant to apply not just to pupils with statements but to other pupils with special educational needs who are at risk of exclusion, the better it will be. However, we can address that issue, along with others, in the ongoing discussions that we will have with the Minister. With that, I beg leave to withdraw the amendment.

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[Baroness Hughes of Stretford]

My Lords, I want to briefly speak to Amendment 31 in this group. This is a very simple amendment which would ensure that Clause 4 on exclusions and all that we have been talking about would apply also to academies. As the clause stands, it says:

“Regulations may make provision for this section and for regulations made under this section to apply, with prescribed modifications, in relation to Academies or a description of Academy”.

This amendment simply changes the “may” to “must”, so that the exclusions legislation and the guidance covered in Clause 4 apply equally to all state-funded schools. We cannot see any reason why these provisions, especially with the movement already made by the Government in guidance, should not apply also to academies. Why should the parents of children at academies not have the right to a special needs expert at the review panel? Why should the detailed requirements now in the guidance on the head teacher at the decision-making stage, on the governing body and on the review panel not also apply to the arrangements in academies?

Apart from the point of principle, there is a very practical reason why we need to do this. It is clear that the Government, in clauses we will discuss later—with presumptions that all new schools will be academies, with powers for the Secretary of State to intervene in schools that are in difficulties so that they immediately become academies—intend, as they have made clear, that as many schools as possible, if not all schools, should become academies in the fullness of time. If that is to happen, if we have many more schools becoming academies, I cannot see why we are discussing this legislation. If it does not apply to academies, it raises the question of the point of the guidance—it will become redundant if all schools become academies and this clause does not apply to academies. So we have very practical reasons for making sure, right at the outset, that this applies to all state-funded schools, including academies. I hope that the Minister will accept this amendment and I look forward to his response.

[Lord Hill of Oareford]

My Lords, let me start by talking about supporting pupils to participate appropriately in the exclusion process. I very much agree that that is important. The guidance on exclusions, which I have circulated, makes clear our view that pupils should be actively supported to participate at all stages of the process. In strengthening this aspect of the guidance we sought the views of the Children’s Rights Alliance for England. In response to its suggestions, the guidance now sets out: first, that head teachers should take steps to allow a pupil to present his case before an exclusion decision is made and take account of significant contributory factors, such as bereavement or bullying, that come to light after an incident of poor behaviour; secondly, that consideration should be given to how to enable and encourage the excluded pupil to participate in governing body reviews and independent review panels; and, thirdly, that independent review panels should be conducted in a non-threatening and non-adversarial manner. I am happy to discuss this draft guidance with my noble friend Lady Walmsley and will consider any suggestions that she may have.

I also agree with her point that schools should be able to agree with a parent clear measures to address poor behaviour when a pupil returns to school following exclusion. She talked about parenting orders and contracts. In fact, schools do have the power to agree a parenting contract or to apply for a parenting order, so I hope she will feel reassured that that is possible as things stand.

The noble Baroness, Lady Jones, raised the question of how the new exclusions process will be applied to academies. I can reassure noble Lords that the requirements will be the same on all state-funded schools, including academies and free schools. We have already updated academy funding agreements to reflect the changes proposed in the Bill, but the Bill also allows us to apply requirements that are placed on maintained schools equally on academies through regulations. I hope that that reassures the noble Baroness. As for training, which is an important issue, if a parent requests an independent review of an exclusion decision it is important that independent review panel members have the capacity to perform their role effectively. As is currently the case, local authorities and academies will be required to provide training to panel members every two years on specific areas set out in regulations. No individual will be permitted to be a panel member without receiving this training, which must cover issues such as the legislative requirements in relation to exclusions; the need for the panel to observe procedural fairness and the rules of natural justice; and the duties of the review panel under the Equality Act 2010.

I understand the point made by my noble friend about the quality of training that some local authorities may provide or commission, but I am not sure that we would want to introduce a requirement for independence which would prevent a local authority which can deliver high-quality training itself from doing so. We want to draw on best practice in training for other bodies that make important administrative decisions. To that end, we are talking to the Ministry of Justice about what more we can do to support this training to ensure that local authorities are clear about the new requirements and are able to develop or commission effective training.

Education Bill

Lord Hill of Oareford Excerpts

Tuesday 18th October 2011 Lords Chamber

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, I understand the intention of the amendment, moved by the noble Baroness, Lady Hughes of Stretford, which is to promote co-operation and collaboration between schools to improve behaviour, attendance and standards. I agree with her about the importance of this. It goes with the grain of the existing culture in schools, which by its nature tends to be collegiate. I also agreed with her when she said that these kinds of partnerships work better when they are formed voluntarily, when they bubble up and take the shape that individual schools want them to take. I hope that I am as keen as her to encourage co-operation and schools learning from each other.

Where we differ—perhaps the only point in this amendment—is that I am not convinced that government guidance on these issues will deliver change locally. We think that it is best led by professionals on the ground. I accept that in some cases, legislation can help, such as for example, the duty on all state-funded schools to participate in a fair access protocol, which will remain. That is a good example of a solution to a specific problem. But we know that the previous set of guidance on behaviour and bullying from the department ran to some 600 pages, which is difficult for schools to take on board. The direction that we seek is to help schools to learn from each other. I just want to mention a few of those today. One would be our proposals for teaching schools. We are hoping to set up a network of teaching schools around the country and have announced the first 100. Those schools have a track record of working with others to raise standards for children and young people beyond their own school.

Under that model, groups of schools will work together within a teaching school alliance supported by the leadership of a teaching school. These alliances can work across local authorities and involve many different types of organisations. This first wave of teaching schools will be given the opportunity to take the lead in a variety of specialist areas including improving pupil performance and behaviour in schools. We have also asked the national college to build on the work started under the previous Government, designating excellent head teachers to be local and national leaders of education who will work to support underperforming schools. The college is now creating a new group of specialist leaders in education. They will be outstanding leaders in their particular field of expertise, which could include pupil achievement, quality of teaching or behaviour management. Teaching schools will designate specialist leaders and deploy them into schools that need support, thus ensuring a school-driven approach to improvement.

The noble Baroness talked about academies briefly. I know that she has some concerns but one of the features has been partnerships that have been formed to support school improvement in the widest sense. Before entering into a funding agreement with an academy, we ask them to identify a school or group of schools that they will work with to improve their performance. That collaboration is a vital part of our overall strategy to tackle long-term problems and inequalities that sadly exist in parts of our education system. The practical benefits of this collaboration are obvious. Young people can enjoy a wider range of facilities and try out new subjects; underused resources will be employed better; teachers will have more opportunities themselves for learning and professional development.

These partnerships with academies are a natural progression from those informal, local partnerships between schools that have been developing for a number of years and which I know the previous Government were keen to encourage. The fact that these ideas are emerging from within the system rather than being imposed by central or local government to my mind makes the effect all the more significant and the benefits likely to be greater. I hope that the noble Baroness, Lady Hughes, will agree that these systems for peer-to-peer and school-to-school support will make a contribution to improving standards of attainment, behaviour and attendance. I recognise that the proof of the pudding will be in the eating but I believe that they build on the ideas behind some of the previous Government’s successful initiatives, and we think that that is a better way forward than issuing more guidance. We are committed to ensuring that all schools will have access to the expertise that they may need to address these issues. With that, I hope that the noble Baroness may feel able to withdraw her amendment.

[Baroness Hughes of Stretford]

My Lords, I thank the Minister for that response. I welcome the information he has given us about teaching schools. I support that initiative. In a sense, the whole idea of teaching schools substantiates the points I was making in support of guidance: those schools that are designated as teaching schools will be under no illusion that in order to be so designated they will have to accept the expectation that they will collaborate and disseminate good practice with other schools—it will part of the deal for being a teaching school.

I had hoped that the Minister would see the distinction in this amendment. It is not placing a duty on schools at all, but rather placing a duty on the Secretary of State to signal the clear expectation of the Government that schools, in taking public money and being responsible for the education of our children, will understand that there is an expectation that they work together and collaborate. I think most schools are willing to do that, but, as Sir Alan Steer said, not all schools are. That is why we thought that this would be an appropriate signal for the Government to send. I can see that the Minister is not minded to accept the amendment. While I am disappointed in that, I accept that that is the Government’s position, and I beg leave to withdraw the amendment.

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[Baroness Sharp of Guildford]

My Lords, I agree with the noble Lord, Lord Puttnam. I find it very difficult to support this part of the Bill at all because for many years we have struggled to establish a proper professional organisation for teachers. I find it quite extraordinary that we are now destroying it. It gives teachers a sense of profession and of belonging to that profession. It is quite out of kilter with what is happening in the further education profession where those who get QTLS are being required to register with the IFL. I cannot support the Government on this issue.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, as always, I listened to the arguments made by the noble Lord, Lord Puttnam, with a great deal of care. I thought that with his customary honesty he made the point clearly about some of the shortcomings of the GTC which are linked directly to the decision that the Government took to bring about its abolition. The point he raised powerfully about the disinclination of the profession to pay for its membership and the fact that it is largely taxpayer-funded is important and one on which we should all reflect. I would not disagree with a word that he or my noble friend Lady Sharp said about professionalism and the need to have a profession and raising the status, esteem and standing of teachers as professionals.

Earlier today, we spoke about the importance of trust. Before I talk about the specific amendments, where we disagree on the fundamental principle is on whether the GTC as constituted is an embodiment of professional status. We contend that it is not, although I agree with the noble Lord that it is perfectly possible, indeed likely, that in future years something will well up that captures and speaks for the professionalism that he advocates and that I know he feels strongly about, but it probably will not be the GTCE.

When we discussed this in Committee, I set out some of the things that the Government are trying to do to raise the status of the profession and the quality of entrants to it and to help existing teachers to develop and improve. As we discussed on the last group, one of the overall themes that we are trying to develop is to give teachers and head teachers greater responsibility for improving teacher quality. I think that is a very good symbol of greater professionalism. I am as keen as other noble Lords to support schools and head teachers to recruit high-quality teachers and to ensure that they are able to access the information that they need to do so. At present, the GTC has a register that contains detailed information from every teacher and employer in the country. This ranges from personal data and qualifications through to information on the types of posts held in previous employments. Schools and teachers are required to update this information at least three times a year. I am told that that costs around £500,000 a year, and that is before one counts the cost of the time spent on it in schools. I do not believe that maintaining that amount of information at a national level is desirable or necessary.

However, we have been persuaded by concerns raised in this House and elsewhere that there is a genuine need for the Government to help schools to know who has qualified teacher status and who has passed induction. The profession proposed an alternative to the GTCE register that I think achieves this objective, and the two leading head teacher unions wrote to the Secretary of State to express their strong belief in the need for an online database of all qualified teachers that is accessible by schools to replace the GTCE register.

We talked about this in Grand Committee but I can confirm that, having considered this, the Secretary of State has agreed that the teaching agency will establish and maintain a database that will record which teachers have attained qualified teacher status and which have passed their statutory induction period. That database will be available online to all employers from April 2012 and will be in addition to the prohibited list database, which will also be available to employers online. Together, the QTS database and the prohibited list will give employers an important resource in assessing qualifications as well as establishing who should not be employed as a teacher.

[Baroness Walmsley]

Perhaps I may ask my noble friend a question. Will these two databases be linked? I can imagine a head taking on a teacher might look at the original database to see if that person has been qualified and done the induction but they will not necessarily look at the other database to see if that person has been struck off since. Will there be a suggestion for somebody using the first database that they really ought to check the prohibited one as well?

[Lord Hill of Oareford]

That sounds a very sensible suggestion. I will need to check where we have got to on developing the two databases but that sounds eminently sensible because clearly one would want to make sure that there was read-across.

I hope in light of the reassurance about providing the information, which I accept there has been widespread agreement that we need, including from the party opposite, and about maintaining such a register, that the noble Baroness, Lady Jones of Whitchurch, may feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I listened to my noble friend Lord Puttnam with a great deal of sadness as he described the demise of the GTC and what it had originally intended to represent, which was a strong professional standard for the teaching profession and something that they could all aspire to. It is a very sad day that we are here reflecting on its demise. The Minister said very warmly to my noble friend Lord Puttnam that he would not disagree with a word that he had said about teachers’ professionalism, and he went on to say that he hoped that something would “well up” to replace it. That is not much of a response to the profession. In the intervening period, while we are waiting for this welling up, the teaching profession will have been sent a signal that the Government really do not think that it is terribly important and it has got to bide its time before anything appears from the ether to be a standard for it again as a professional body. I echo the comments that have been made about the messages that this sends to the profession.

My noble friend Lord Puttnam went on to say that we would end up recreating the GTC and I think that is really where we are ending up. As we have heard, we have got one list, or maybe two. Somebody is going to have to administer those lists. At a very basic level, if they are not a register then they are moving towards becoming a register, and I acknowledge that the Minister has made some gestures towards what we were arguing. The question that has been raised about whether they will speak to each other is very valid.

I also think that there is a difference between a database of those who are qualified to teach and a register of those who are currently teaching. A register of those who are qualified to teach would very quickly get out of date. It would become a moribund list of people who have potentially not taught for 20 years or more, whereas the idea of a register is as a current, lively thing that enables access to people’s current status. It seems that we have got two poor substitutes for what was a perfectly reasonable arrangement in the first place. More work needs to be done on this.

As for this applying only to England and what happens to the other three nations. I am not sure that I heard the Minister address that issue. Three registers are going to exist in the other three UK nations, and England will be the only one which does not have one. We have made heavy weather of this. It would have been a lot easier if we had just kept the register as well, and be done with it.

I am absolutely sure that the thinking behind this is that the GTCE, for whatever reason, was not in favour with the current Government, and this is why we have ended up where we are. A lot more work needs to be done on this, but I take on board the Minister’s intention to come back and clarify some of these issues. On that basis, I beg leave to withdraw the amendment.

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[Lord Knight of Weymouth]

My Lords, I support my noble friend Lady Jones on this issue. In respect of the non-safeguarding issues—the noble Lord, Lord Storey, has just talked about the safeguarding ones—my noble friend mentioned financial irregularity and misconduct. I know that the Minister is likely to repeat the defence that schools have to inform the Independent Safeguarding Authority, which to some extent deals with the issues raised by the noble Lord, Lord Storey. But it does not deal with the other issues.

I know that it is a great frustration to governors and head teachers when they find that they have employed someone who clearly is not up to the job and who had not been in their previous job, but the new school did not know about it. In terms of the professionalism of the workforce and teachers, it is very important that we respect that when things go wrong as well as when they go right and ensure that the facility is there to ensure that schools notify a central body. The Secretary of State would seem to be a sensible outcome, which is surprising given that much of my nervousness about this Bill is giving ever more powers to the Secretary of State, but on this occasion it is warranted. I would be interested in the Minister’s response if he happened to have in his back pocket any information around the numbers of teachers who are dismissed on grounds of gross misconduct that are not related to safeguarding. That would give us a better understanding of the exposure around this issue than if he relies just on the Independent Safeguarding Authority.

[Lord Hill of Oareford]

My Lords, I do not think I have that in my back pocket, but I will rootle in my clothing after this and see what information I can find. If there is relevant information which would shed some light on this I will, of course, send it to the noble Lord and circulate it more widely.

I will briefly set out the Government’s overall proposals on teacher regulation to try to put them in context. The GTCE currently deals with referrals for both incompetence and misconduct. I start with that because it touches in some way on the concerns raised by the noble Lord, Lord Knight. There is pretty clear evidence that the approach taken by the GTCE on incompetence has not been working and this is one of the things that drove us to try a new approach. In 10 years, the GTCE barred only 17 teachers for incompetence, and research has shown that employers are often reluctant to make referrals relating to competence to a national regulator. As we have discussed, they have previously only had a nuclear option and this has discouraged heads from making referrals, on the understandable basis that someone who might not be guilty of serious misconduct, but might need to move on and try teaching in a different school, finds himself grinding through the GTCE process. We are therefore seeking to separate issues of competence from issues of misconduct.

So far as dealing with incompetence is concerned, we want to put that into the hands of head teachers. To help them carry out this responsibility, we are also currently consulting on some streamlined arrangements for performance management and capability procedures. So far as misconduct is concerned, we certainly think there is a role for a national regulator, but we also want to try to give head teachers an appropriate level of responsibility, with only serious misconduct cases that may warrant the ultimate sanction—a bar from the teaching profession—being dealt with by the national regulator.

On the issue of safeguarding raised by my noble friend Lord Storey, the point made by the noble Lord, Lord Knight, is partly a response to that. Our proposals will not alter the current arrangements in relation to child protection. The legal duty on employers to refer any issues that relate to safeguarding to the Independent Safeguarding Authority will remain. The noble Baroness, Lady Jones of Whitchurch, asked what happens when the Independent Safeguarding Authority is informed. If a person is barred by the ISA, a flag would appear on their CRB check and a head teacher carrying out a check would then know.

The present regulatory regime requires head teachers to refer all teachers who are sacked as a result of misconduct to the national regulator. The regulator then investigates those cases and imposes one of a range of sanctions depending on the severity of the misconduct. Our basic position is that we do not think that a national regulator should need to administer intermediate sanctions such as restrictions on the use of the internet on school computers. The purpose of the national regulator should be to investigate the most serious cases in order to decide whether a teacher should ever be allowed to teach again. Under the current system, only 10 per cent of referrals have resulted in prohibition orders. In other words, a lot of the GTCE’s time—and a significant amount of money—has been spent investigating cases of a lower order of significance. Similarly, the current system requires head teachers to go through the process of referring a teacher, even if they believe that there are no grounds for barring them from the profession. This is inefficient and risks placing a perverse incentive on head teachers not to confront issues of conduct, because they think it is inappropriate and unnecessary to refer the case to the national regulator.

The amendments effectively seek to reverse the changes we are proposing to make to the role of the national regulator in relation to misconduct. The reason that I am resisting them is because experience of the current system has shown that requiring employers to refer all cases has had two undesirable consequences. First, as I have said, it means that the regulatory system has spent too much of its time focusing on cases that are not sufficiently serious to warrant the teacher being barred, and secondly, that heads have avoided sacking teachers for misconduct because they know it does not warrant an investigation by the regulator and they would not want them ending up on that path.

There is a point raised by the noble Baroness, Lady Jones of Whitchurch, about inconsistency, which I accept. I agree that arrangements for teacher regulation should seek to achieve consistency, but I do not believe that the current duty which she prefers is delivering that. Research published in 2008 found that between 2001 and 2008, nearly one-third of all local authorities had never made a referral for misconduct. Even when we take into account the different numbers of teachers employed in different local authority areas, the variation of referrals among local authorities indicates significant inconsistency in the current system. To reduce that, and to support head teachers in exercising their discretion, we are developing prohibition advice which sets out the kinds of misconduct that should lead to a teacher being barred from the profession. I circulated a draft on 12 October. We are currently carrying out a consultation on the guidance, which we intend to publish following Royal Assent. I would be happy to receive comments on that consultation from noble Lords to see whether they think it will help us to deliver greater consistency.

We are taking those steps and I hope, by explaining the rationale behind wanting to move to a more differentiated system, that even if the noble Baroness, Lady Jones of Whitchurch, does not accept my reasoning she will withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, the noble Lord, Lord Storey, made a powerful case on the issue of consistency, and I think that it is the key word in this. We are grappling towards a system that is best going to deliver that consistency. The Minister said that it did not work in the past and that incomplete records were provided by different authorities. My answer to that is that what he is proposing now will make it even more inconsistent and patchy. The draft regulations he has recently sent out show that it will very much be discretionary rather than compulsory for employers as to whether they feed information into the centre. The onus of the wording is that employers “may” decide whether they wish to inform the Secretary of State, members of the public “may” be able to refer cases to the Secretary of State, and the police and the Independent Safeguarding Authority “may” also refer cases to the Secretary of State. The Secretary of State will have a very patchy and inconsistent picture, and I do not know that that helps anybody. What we really want is a resource that future employers can access and in which they will have some faith.

I understand the steps the Minister is taking, but we need to revisit the draft regulations. We need to make a much better attempt at trying to find a consistent and useful resource for future employers. I do not think that this is it, but there is room for further dialogue. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Hill of Oareford]

42: Clause 13, page 20, line 16, after second “is” insert “or may be”

[Lord Hill of Oareford]

I should like to speak briefly to this and the other government amendments which make up the majority of this group. A number of these amendments were prompted by the debate about Clause 13 that we had in Grand Committee. My noble friend Lord Phillips and a number of other Peers were concerned that the way the clause was drafted might lead a judge to place undue weight on the welfare of the teacher involved when considering applications to lift reporting restrictions. It was not our intention to skew the judge’s consideration to the disadvantage of the pupil, or pupils, who had made the allegation.

Amendment 44 therefore makes it clear that courts must have regard both to the welfare of the teacher and to the alleged victim of the offence when deciding whether to lift reporting restrictions. My noble friend was also concerned that the clause could lead to one-sided reporting of an allegation. It provided that the written consent of the individual about whom allegations had been made should be a defence to a charge of breaching the restrictions. However, that could lead to a situation where a teacher defended himself publicly against an allegation while those making the allegation were unable to respond.

We thought that my noble friend Lord Phillips was right to say that when a teacher is responsible for a publication identifying him or her as the subject of an allegation, then restrictions should lift and other parties should then be able to publish their side of the story. Amendment 49 and the consequential Amendments 53 and 54 make this change. The remaining amendments are technical improvements to the drafting of parts of Clause 13 following discussions between officials at the Department for Education and officials at the Lord Chief Justice’s office. They do not represent a change to the policy intention behind the clause.

Amendment 42 clarifies that tentative allegations that a teacher may be guilty of an offence should be treated in the same way as firmer allegations that they are guilty. Amendment 43 and consequential Amendments 45, 46 and 50 clarify that applications for reporting restrictions to lift should be made to the magistrates’ court, with appeals going to the Crown Court. Amendment 50 and the paving Amendment 47 help the clause more accurately to reflect our original policy intention that reporting restrictions should lift automatically when a teacher is charged. I beg to move.

[Baroness Hughes of Stretford]

My Lords, I do not want to oppose any of the amendments that the Minister has tabled but I want to sound a cautionary note and put it on the record following our extensive discussion of the principles underlining the Government’s proposals in Clause 13. We had an extensive debate in Grand Committee and part of it was around the question that the noble Lord, Lord Phillips, put acutely: whether the Government had made the case that teachers are in a unique position in relation to allegations of abuse, such that the restriction on reporting was justified. He said that,

“if Clause 13 goes through unamended, it will repose in the teaching profession a privilege unique in English law”.—[Official Report, 6/7/11; col. GC 158.]

I want to preface my remarks with great concern for any person in any profession against whom allegations of child abuse are made and are not true. I completely understand the concerns about blighting a career and suspending a person in an anxious time while investigations take place. I have a son who is a teacher at a primary school and many sisters and some brothers-in-law who are teachers, so I am appraised of and concerned about that side of the argument. I also understand why the teaching unions make it. However, I am also concerned about safeguarding children and that is the difficult territory that we are in here.

The Government offered, in response to our debate in Grand Committee, to do some research to see what the figures were. That research has now been published and was referred to in the press at the weekend. When noble Lords look at the figures, they will see that of the cases examined—more than 12,000 where allegations were referred to local authority designated officers—under a quarter were in relation to teachers. If you add in the smaller, but none the less substantial, numbers of non-teaching school support staff, it is still well under a half of all the allegations. It is more telling that for teachers—this was the headline in the press—nearly half of the allegations, which came to 2,800 cases, were classified as unsubstantiated.

This does not mean that there was no truth in the allegation but that the threshold of evidence for prosecution could not be reached. This is difficult territory because most of those allegations will depend only on the word of the pupil against that of the teacher. There will not be witnesses present in most of those allegations. “Unsubstantiated” means that there was insufficient evidence to proceed; it is not a judgment about whether the allegations were true. Even more telling than that is that only 2 per cent of the allegations against teachers and FE lecturers were classified as malicious. The guidance issued by the Government in August makes great play of, and refers extensively to, malicious allegations, and yet we now have from the research a finding that only 2 per cent of allegations were malicious.

I am not going to oppose the amendments. I understand why the Government have acceded to the pressure from the unions, although we decided at the time, because of the problems that arise and the concerns about safeguarding, not to accede to that pressure because it opens up the other argument about where to draw the line. As I say, there were smaller but substantial numbers of non-teaching staff—some 1,700—against whom allegations were also made. I simply sound a cautionary note to the Minister. I hope that we do not find further down the line that a serial abuser—there have been serial abusers in schools—gets away with abuse over a long period because none of his—they are generally men—crimes could be reported because the evidence in relation to each one never reached the threshold for prosecution. I hope that in passing this legislation we are not responsible for the preventable abuse of any child. I say this without wanting to castigate the Government, but it is very difficult territory and I am not sure we are in the right place. I understand why the Government have done this but we will have to watch the situation very carefully.

--- Later in debate ---

[Lord Black of Brentwood]

My Lords, I do not wish to detain the House for terribly long but I would be grateful if I can say a few words as I raised this issue for the first time at Second Reading and then talked with the noble Lord, Lord Phillips, about it in Committee. As this is an issue that affects the media, I declare an interest as executive director of the Telegraph Media Group. On Second Reading, I originally raised three concerns. The first was about the workability of these proposals and whether it was possible to muzzle the printed press and broadcast media in a digital age when gossip at the school gate would simply be transformed into dialogue on social media. The second was about the impact on press freedom and open justice, particularly because of the lack in this legislation of a public interest defence. The third, about which we have heard eloquent testimony this evening, was about the welfare of vulnerable children. Underlying all that was a belief that the case had not been made out for a substantial incursion into freedom of expression. The noble Baroness, Lady Hughes, spoke earlier of the latest statistics showing that only 2 per cent of cases related to malicious allegations. That is a very small number and in none of those has it been proved that publicity was responsible for that.

Those were my concerns. All that said, I am very grateful to the Government for having taken a number of those issues on board. Amendment 44 goes a considerable way to protecting the rights of children. It gives the courts the opportunity to balance the victim with the perpetrator of the crime. Amendment 49, which relates to individual teachers putting material into the public domain, again goes some way to dealing with the impact on the media and open justice, and I think helps to bring this legislation much more into line with the Human Rights Act 1998, which protects material which is in the public domain. That seems to me to be of especial importance in view of the concern I expressed about the impact of social media on this legislation.

I wish that the Government had been able to go further. Indeed, I wish that this clause had not been in the Bill in the first place. However, these changes seem practical and welcome, and may go some way to ensuring that these provisions will have a much less significant impact on the rights of children and on the free media than when the Bill was originally drafted.

I should add that, as a result of these amendments, and the explanations that the Minister has given today, I see no need for my own part—although it is still a matter for the noble Lord, Lord Phillips—to press Amendment 48 or Amendment 51, and withdraw my name and support from those.

[Lord Hill of Oareford]

My Lords, we had a very good debate about this issue in Committee, and, although the hour is late, we have just had another such debate this evening. I recognise the point that the noble Baroness, Lady Hughes of Stretford, made at the beginning: this is not a completely straightforward issue. There are difficult interests to balance. I understand the force of the arguments that have been made about the importance of safeguarding children. I am extremely clear that a huge amount of progress has been made over the years in making children safer in school, thanks to steps taken by the last Government, and no doubt Governments before that. To respond to the point raised by the noble Baroness, Lady Howarth, we have no desire to do anything to unwind or undermine any of that. I listened with care to the point she made about Childline. My understanding is that the Bill would not prevent children talking to Childline, and Childline talking to parents. However, I understand the force of what she was saying, and I will check that that is the case. Clearly one would not want a measure inadvertently to have the effect which she raised.

At the heart of this, and the reason why the Government are doing this, is the evidence that has been provided to us on this issue. I think that that evidence is not contested: I know that there is a difference of opinion about the strength of the evidence of the number of cases of pre-charge publicity in the press, but there is an acceptance that we have a problem, that there is a growing number of allegations made against teachers, that teachers are fearful of this trend, and that they are fearful of the effect that it has on their ability to exercise their position of authority in the classroom. We think that they have a particular position—

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend the Minister, but he is wrong about these statistics. The JCHR misread the NASUWT statistics. I said in Grand Committee that,

“for the past three years there has been a decline”,

in the number of allegations—and this is on the statistics in the JCHR report. In 2008, there were not 181, as there had been the previous year,

“but 148; in 2009, 115; and, last year, 107. Yet the Minister in the other place said that the number of allegations had increased, which is simply wrong”.—[Official Report, 6/7/11; col. GC 172.]

With great respect, I suggest to the Minister that he does not follow down that fallacious track.

[Lord Hill of Oareford]

My Lords, I will look at the figures again in the light of what my noble friend said. I would not want to go down a fallacious track. I recognise the difficulties that the issue poses. I know how strongly my noble friend feels about it. I have been able to discuss it with him on a number of occasions in recent months. He made a very powerful speech tonight and I know that underlying all of this is his passionate commitment to the principle of freedom of expression. I know that that drives him and that it is an important principle.

I know as well that his amendments are designed to improve a clause that he and my noble friend Lord Black of Brentwood would rather see removed altogether from the Bill. I thank him for his approach in trying to come up with ways of improving what clearly he thinks is a deficient measure. Two government amendments in this group are improvements that he has prompted to the clause. I am grateful to him for that and for the remarks that my noble friend Lord Black made about those improvements and the reassurance that they provided for him.

The fundamental concern of my noble friend Lord Phillips is that the clause interferes with the principle of freedom of expression. I understand that. That is part of the reason that the Government have sought to draw the clause in a narrow way, limiting it to pre-charge reporting of allegations against teachers by current pupils, despite calls that we faced at the beginning of proceedings on the Bill from various quarters—including a number from this House—for us to go much further in extending these measures. We resisted that pressure and I think that the feeling of the House at this point is that it was right to do that. I understand the principle of which my noble friend is a passionate champion, but I contend that it needs to be balanced with the need to protect teachers against the damage that can be done by false allegations and by press reporting of them. We seek to strike a balance and this debate is about whether we have got it right.

[Baroness Walmsley]

Perhaps I may ask my noble friend a question. I apologise and will make it very quick. Can he tell us how many allegations where the teacher has been identified have been reported prior to charge in the past two or three years? My noble friend suggests that there have been six. Another noble Lord said five. Do the Government think that the correct number is a multiple of that? We simply have not been told.

[Lord Hill of Oareford]

My Lords, getting an accurate picture of the extent of the problem is difficult. I accept the point made by my noble friend Lord Phillips that, through the research that the department has carried out by going online and looking at local press reporting as best it can, so far the number of cases that it has come up with is a multiple of five, but not many multiples of five. I think that the number circulated after the recent survey carried out for the department was 15. I accept that that is not a large number. However, the principle and the concern that underlie it are what we seek to address.

I will now address the amendments that my noble friend tabled rather than the general principle. The first area where he thinks that the clause gets the balance wrong is in relation to communication within the school community. His Amendment 51 seeks to ensure that pupils or parents will not breach reporting restrictions by communicating with other parents and other members of school staff. An example of where this might happen is if the parent wishes to communicate with other parents about an allegation that their child has made against a teacher. I should clarify that parents would not breach reporting restrictions by holding private conversations whether in person or online. The reporting restrictions would apply only to communication to the public at large or any section of the public.

My noble friend argued that a parent might wish to communicate with a section of the public in this way in order to seek corroboration of an allegation against a teacher before raising it with the school. We think that the effect of his amendment would be wider than that and would exempt from reporting restrictions communications by any pupil or any person acting on behalf of the pupil to any section of the school community and so reduce the protection the clause gives teachers against malicious or unfounded gossip. For example, it would allow pupils or parents to use a forum on the school network to publish an allegation against a teacher widely within the school community. I agree with my noble friend that parents should be free to follow up allegations made by their children, but I do think—I know he was dismissive of this point—that they should do that through appropriate channels by raising the issue with the school or the relevant authorities rather than by launching their own inquiries or campaigns. He knows, because I have discussed it with him before, that I am aware of a number of cases where e-mail campaigns against teachers are led by parents to whip up a campaign against them. We would not want that to be allowed to happen.

[Lord Phillips of Sudbury]

The Minister is surely aware that if anybody whipped up, as he put it, a campaign that was untrue, they would be subject to very heavy libel or slander damages.

[Lord Hill of Oareford]

I am aware of that, and we have discussed that point before. I know that is the case, and I defer to my noble friend who is a very distinguished lawyer, who I think used to do libel. To expect a teacher who finds himself the subject of a malicious campaign to take a libel case on his own account, financially, emotionally or in any other way, is not a practical course of action.

[Baroness Howarth of Breckland]

In making that comment, does the Minister feel that a teacher cannot take that action but that a parent, with all the distress that they are feeling about their child having accused a teacher of abuse, can go to a judicial review with all that means without the support of other parents? That is simply not the real world. Does the Minister not agree that there is some imbalance in the two things that he has just described?

[Lord Hill of Oareford]

I did not say that a parent who has concerns would have to go to judicial review. I am arguing that for a parent who has those concerns— I agree 100 per cent with the noble Baroness that a parent would want to have them investigated and taken forward—there are a number of ways, whether through the police, the local authority, the LADO, and so on, to make sure that those concerns are investigated. I am not at all saying that if they have concerns I would expect them to have to go to judicial review.

We are absolutely clear that genuine victims of abuse must be able to disclose the abuse and that such reports must be investigated properly. These provisions do not interfere with that. They do not prevent the police interviewing witnesses. We think that effective investigations are possible without press reporting. The police can seek to lift the reporting restrictions if necessary to draw attention to an issue if they are seeking more information about a particular person.

The other amendment proposed by my noble friend would mean that reporting restrictions would lift when a person who is the subject of an allegation resigned or was dismissed from the relevant employment. He is concerned that without this amendment, Clause 13 may help schools cover up misconduct and argues that press reporting is an important check on such behaviour.

One difficulty with the amendment is that its implications would go well beyond this issue; for example, it would mean that any teacher who resigned to take up a post at another school would lose their protection against the reporting of allegations, even if the allegation was unfounded and had no influence on the teacher’s decision to resign. We are committed to ensuring that genuine allegations of abuse are investigated properly by the appropriate authorities. Schools have a statutory duty to investigate allegations and, where appropriate, to refer them to the relevant authority. Our new statutory guidance on this subject makes absolutely clear that if a person tenders his or her resignation or ceases to provide their services, that must not prevent an allegation being investigated. If it is well founded, the investigation will lead to the police bringing a charge or to the regulator holding a hearing. At that point, the reporting restrictions will lift. If there is insufficient evidence to reach this point, we think it is right that the teacher’s anonymity is protected and their reputation and career safeguarded.

I accept that a small minority of heads may in theory seek to cover up allegations or may not be as swift in acting on them as we would wish. However, I do not think that press reporting is the best or the only way to counter this possibility. If parents or others are not satisfied that schools are dealing with an allegation, they have recourse other than through the press: they can refer the case to the national regulator; they can ask the Secretary of State to investigate and exercise his powers of direction; they can go directly to the police if they consider a criminal offence may have been committed. In addition, if any person feels that there is a strong public interest in publishing details of identifying information about a teacher against whom allegations of criminal behaviour have been made, they can apply to the local magistrates for reporting restrictions to be lifted.

I will quickly reply to a couple of less contentious points. My noble friend Lord Phillips asked about government Amendment 42. In order to cover ambiguous allegations that someone might be guilty of an offence where, for example, a pupil claims, “I think it was teacher X who did it”, we have changed the definition from,

“an allegation that the person is guilty of a relevant criminal offence”,

to “may be” guilty of an offence.

My noble friend Lady Walmsley was worried that Clause 13 might unintentionally hinder Ofsted from including information in its reports that it would otherwise want to include. I recognise her concerns about that. In cases where a school is found to be failing to implement arrangements for safeguarding and promoting the welfare of children appropriately, we expect inspectors to include judgments or commentary about such failings in published reports. In light of her concerns, my officials contacted Ofsted today to ask whether it thinks there is a risk that Clause 13 might constrain inspectors in making their reports. Ofsted said that inspectors would not feel constrained in reporting on a safeguarding issue. As a matter of general policy, they always take care in writing reports to ensure that no individuals can be identified. Of course, if the inspectors uncover safeguarding concerns during an inspection they can and should provide full detail, including the identities of those concerned to the appropriate authorities and the reporting restrictions would not interfere with that in any way.

Those were the less contentious ones. I understand the strength of the feeling of my noble friend Lord Phillips, and the passion with which he has argued this evening. I have been able to agree with him on two of the improvements to the clause that he has proposed. I know he will not agree with me but I think there are difficulties with the two further ones he has put forward—that they would weaken the protection that we are seeking to give to teachers—and I ask him to withdraw his amendments.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, I should point out to the House, if I may, that the noble Lord, Lord Phillips of Sudbury, has not actually moved his amendment. It has not yet come up. My duty at this moment is to ask the House whether it wishes to agree to the amendment tabled by the noble Lord, Lord Hill, which, if I may, I will now do.

--- Later in debate ---

Moved by

[Lord Hill of Oareford]

43: Clause 13, page 20, line 22, leave out “an appropriate criminal court” and insert “a magistrates’ court”

--- Later in debate ---

Moved by

[Lord Hill of Oareford]

49: Clause 13, page 21, line 16, at end insert—
“(11A) The restrictions in subsection (3) also cease to apply if—
(a) the person who is the subject of the allegation includes a matter in a publication, or(b) another person includes a matter in a publication with the written consent of the person who is the subject of the allegation;and, in either case, the inclusion of the matter in the publication would otherwise be in breach of subsection (3).(11B) Written consent is to be ignored for the purposes of subsection (11A)(b) if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it.”

--- Later in debate ---

Moved by

[Lord Hill of Oareford]

52: Clause 13, page 21, line 38, at end insert—
“( ) For the purposes of this section, proceedings for an offence are instituted at the earliest of the following times—
(a) when a justice of the peace issues a summons or warrant under section 1 of the Magistrates’ Courts Act 1980 in respect of the offence; (b) when a public prosecutor issues a written charge and requisition in respect of the offence;(c) when a person is charged with the offence after being taken into custody without a warrant;(d) when a bill of indictment is preferred by virtue of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933.”

Sure Start

Lord Hill of Oareford Excerpts

Monday 17th October 2011 Lords Chamber

[Lord Dubs]

To ask Her Majesty’s Government how many Sure Start centres have been closed since the coalition came into power.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, local authorities are facing challenging financial circumstances, but we believe that they understand the crucial importance of children’s centres for early intervention. Good authorities are restructuring with care, and many are keeping all their children’s centres open. The Government have retained statutory duties requiring local authorities to provide sufficient children’s centres, and my department is monitoring the situation with local authorities.

[Lord Dubs]

My Lords, does the Minister agree that Sure Start centres have been an effective way of tackling child poverty and improving social mobility? Will the Minister agree that the Government have made repeated promises that Sure Start centres will not be cut, and that it is not acceptable to give such undertakings and then blame local authorities when those projects could easily have been ring-fenced by the Government? Was it not an act of dishonesty by the Government to cut Sure Start centres?

[Lord Hill of Oareford]

First, I agree with the noble Lord, Lord Dubs, about the important role that children’s centres can play in helping to tackle disadvantage and helping young children to get off to the best possible start. On his second point, we have put money into the early intervention grant to pay for a network of Sure Start children’s centres, but we have a difference of opinion with the party opposite about whether those services are best delivered by local authorities with flexibility about how to spend the money—which is what I think local authorities are keen to have—or whether it is delivered through a ring fence. We took the view that we put the money in and then give local authorities the discretion to make the decisions themselves.

[Lord Laming]

With that in mind, what steps can the Government take to make sure that the benefits of the remaining Sure Start schemes are directed toward the children and families who are most in need of that kind of help?

[Lord Hill of Oareford]

My Lords, one of the initiatives that my honourable friend Sarah Teather is taking forward, which addresses the point raised by the noble Lord, Lord Laming, is a series of trials, with payments based more on results, that will look specifically at the kinds of points that the noble Lord raises, particularly at how services are delivered to help families suffering from the greatest disadvantage. We will, however, try to get the focus to shift to the outcomes and the results from those services rather than simply the buildings themselves.

[Baroness Walmsley]

My Lords, is my noble friend the Minister aware that last week, the All-Party Parliamentary Group on Sure Start had a seminar on Sure Start at which we heard from four different local authorities? We found that Haringey made very severe cuts and closures, whereas Cambridgeshire, Nottinghamshire and Manchester did not make any. Why does he think different local authorities are taking such different approaches, when they are all affected by the same economic constraints?

[Lord Hill of Oareford]

My noble friend makes an extremely good point. Local authorities are taking different priorities in different parts of the country, and that reflects, in some local authority areas of the sort to which I know my noble friend refers, the weight and significance that they put on the provision of Sure Start children’s centres. All local authorities—and I accept that this applies to everyone—are having to face difficult financial decisions caused by the need for the Government to make savings, caused by the financial situation that we inherited.

[Noble Lords]

Oh!

[Lord Hill of Oareford]

Noble Lords opposite can groan, but I fear that it is a consequence. I have been asked questions about the funding of Sure Start children’s centres. We have put the money into the EIG, and we have managed to find more resources to extend the offer to disadvantaged two year-olds and to increase the offer we have made for three and four year-olds. There is also the pupil premium. Those are priorities that the Government are putting money into, but we cannot wish away the economic situation that we inherited.

[Lord Campbell-Savours]

How many have closed? That is all we need to know.

[Lord Hill of Oareford]

I do not have that specific answer to hand. Perhaps the noble Baroness will be able to help me, because I know the party opposite has done some work on that. I think the number amounts to 1.5 per cent of all Sure Start children’s centres.

[Baroness Hughes of Stretford]

My Lords, dozens of Sure Start children’s centres have already closed and many more will do so. Equally importantly, services are really being cut back in the remaining centres. The noble Lord neglected to say that the early intervention grant has been reduced by 22 per cent in real terms. Yet, for a tiny fraction of the cost of the health reorganisation, the Government could have protected children’s centres. Does this not reflect the fact that the Government are out of touch, particularly with women’s concerns, and why so many women now think that the Government are going in the wrong direction?

[Lord Hill of Oareford]

I do not accept in any respect the point that the noble Baroness makes. From our debates during the passage of the Education Bill—I will not bore the House by repeating them—she will know about the money and funding that the Government have put into a whole range of priorities, including addressing the children in greatest disadvantage and seeking to help mothers and families who are struggling with those problems, as well as a whole series of initiatives and trials. We will continue with those. But to come back to the point made by my noble friend Lady Walmsley, there is a difference in the way certain local authorities have prioritised their spending, which we have to accept.

[The Lord Bishop of Leicester]

My Lords, in the light of the recent riots and mounting evidence that the first three years are crucial to personal development, do the Government have any concerns about any possible correlation between social unrest and the closures that we have been discussing?

[Lord Hill of Oareford]

I hope I have made clear in all my answers, particularly to the question asked by the right reverend Prelate, that the Government accept entirely the importance of the services delivered through Sure Start children’s centres. One whole focus of the Government’s work is to seek to increase funding into greater concentration on the early years. That is continuing despite the difficult financial situation that we face. I agree that the more one can do with young children to help them become ready for school and to achieve and to learn, the better they are likely to do later and the less chance there is of them going off the rails when they are older.

[The Earl of Listowel]

My Lords, there is a huge cost to society from failing to intervene early, particularly a huge public health cost, given that mental disorders mostly begin in childhood. For example, if smokers had had an intervention in childhood and their relationship with their parents had been strengthened, perhaps 40 per cent of them would not be smoking now. It would probably be the same for alcohol and drugs. Failing to intervene is hugely costly. Will the Minister ensure that the Department of Health carries a proper rate in support of this early intervention and will provide funding to Sure Start children’s centres? Further, will it provide adult mental health services to parents in Sure Start children’s centres and that there is full recognition of this? Will the Minister also discuss with his colleagues how children and families can be prioritised in the Health and Social Care Bill so that these often overlooked groups get the early support that they need?

[Lord Hill of Oareford]

My Lords, I agree very much with the noble Earl about the importance of early intervention, which is the theme of a whole range of measures that the Government are taking across departments. We work closely with the Department of Health. We worked with it on the statement on foundation years, which was published in July, and will continue to do that, bearing the noble Earl’s points in mind.

Education Bill

Lord Hill of Oareford Excerpts

Monday 17th October 2011 Lords Chamber

Moved By

[Lord Hill of Oareford]

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 4, Schedule 1, Clauses 5 to 11, Schedule 2, Clause 12, Schedule 3, Clause 13, Schedule 4, Clauses 14 to 16, Schedule 5, Clause 17, Schedule 6, Clauses 18 to 21, Schedule 7, Clauses 22 to 24, Schedule 8, Clause 25, Schedule 9, Clauses 26 to 34, Schedule 10, Clauses 35 and 36, Schedule 11, Clauses 37 to 48, Schedule 12, Clauses 49 to 53, Schedule 13, Clauses 54 to 61, Schedule 14, Clauses 62 and 63, Schedule 15, Clauses 64 and 65, Schedule 16, Clause 66, Schedule 17, Clause 67, Schedule 18, Clauses 68 to 79.

Motion agreed.

Education Bill

Lord Hill of Oareford Excerpts

Wednesday 14th September 2011 Grand Committee

[Baroness Hughes of Stretford]

Having been prompted by the noble Lord, Lord Storey, I should like to make a brief intervention, which I hope the Minister will address in his summing up. If he does not, we can come back to it. It seems to me that our view on this amendment may depend on what we define to be a “teacher”. I do not know if there is any definition in law as to what a teacher is. Certainly, for clarification, I do not think that we are saying, any more than the noble Lord, Lord Storey, is saying, that everyone who stands in front of a class and delivers teaching should have a professional teaching qualification.

However, the spirit of the amendment is that it is very important that every child and every class in a school, and every subject area in a secondary school, should have a qualified teacher with oversight of the progression of each pupil and the delivery of the materials in relation to the subject being taught. That is the key issue. Certainly, the previous Government provided for considerable diversification of people in the classroom teaching and talking to pupils—for example, teaching assistants and learning mentors. There are many potential uses of people with great expertise in their field, but who may not be qualified teachers, to come in and give their expertise and enthusiasm to pupils. I believe fundamentally that the progression of each pupil should be under the oversight of someone with a teaching qualification and, if appropriate, in the subject area. Seeing the preparation that my son, who is a primary school teacher, carries out and the expertise gained from his basic training that he brings to bear on both those issues—the progression of each child and the way in which subject matter is delivered—has further convinced me that this provision is right. That is not to say that people with a basic teaching qualification should not also undertake continuing professional development. Of course they should and all qualified teachers are required to do so. However, there is added value to be gained from the professional training which people without that training cannot bring to those two tasks. I would be grateful if the Minister would clarify the Government’s position on that.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, I agree with what the noble Baroness, Lady Jones of Whitchurch, and my noble friend Lord Storey said about the importance of a high-quality professional teaching workforce. As the noble Baroness said, in some of our earlier debates in Committee we have talked about some of the Government’s plans for improving teacher quality such as raising the bar for entrants to ITT, strengthening performance management arrangements, our proposals for teaching schools and the expansion of Teach First, which the previous Government introduced and to which I shall come back in a moment.

I am grateful to the right reverend Prelate for mentioning continuing professional training. I agree with him and the noble Baroness, Lady Hughes of Stretford, about the importance of that. We have also asked the Coates review to revise and improve the standards that underpin QTS, and we have announced that we will adopt the clearer and more focused standards recommended by the review. Therefore, we are not talking about some wholesale move away from a commitment to the highest possible standards. As the noble Baroness, Lady Jones, said, we require academies to employ teachers with QTS through their funding agreements. The decision not to require QTS for all staff in free schools is simply intended to allow the possibility of greater innovation at the edges of the maintained sector. We have done this because we are keen to give free schools the ability to recruit experienced teachers who might have a background in FE, the higher education sectors, the independent sector or in other walks of life, who can bring their wider experience to bear in the classroom. It may be a way of getting—I have seen this in a school where I was a governor—a brilliant mathematician with a brilliant degree into teaching more speedily when there is a desperate need. It may be a way—this point was raised by my noble friend Lord Storey—of getting people from the Armed Forces, who might be able to engage particularly well with teenage boys. There are practical cases at the margins where this extra flexibility might help.

As the noble Baroness, Lady Jones, will recall, during the passage of the Academies Act we made commitments to ensure that additional safeguards are in place for vulnerable groups regardless of the type of school they attend. The free school funding agreement requires free schools to appoint a special educational needs co-ordinator and a designated teacher with responsibility for children in care, who hold qualified teacher status.

My next point links with the more general point made by the right reverend Prelate. Free school applications have to undergo a rigorous assessment process and have to demonstrate how they intend to deliver the highest quality of teaching and learning. However, as he argued, more generally they will be directly accountable to their parent and pupil bodies for the quality of education provided. Clearly, they will want to provide the highest quality education both in order to be approved and to continue to succeed. Like other academies and state-funded schools, they will be required to collect performance data and publish their results, and they will be inspected by Ofsted under the same framework that applies to all publicly funded schools, including on safeguarding. As free schools are intended to respond to parental demand for change in local education provision, it will be incumbent on free school academy trusts to ensure that their teaching staff are properly equipped to deliver their particular educational vision.

The core of the Government’s argument is that all Governments seek to innovate. The previous Government took the decision to set up Teach First, which is an innovation I applaud; it was intended to bring about more flexible entry into the profession. I am sure that at the time there were some people who argued that this was a dangerous innovation, and I am glad to say that the previous Government persevered with it. We see this as being no different. It is a modest innovation, it is a permissive measure, and it is subject to the strict accountability measures that I have set out. I therefore ask the noble Baroness, Lady Jones, to withdraw her amendment.

[Baroness Morris of Yardley]

My Lords, with respect, I am not convinced by the Minister’s arguments. I agree with people who have said that there is room for people without qualified teacher status in the classroom. They can bring a lot to the school and they have a set of experiences and often a set of qualifications that are not QTS, but which lend themselves to effective and imaginative teaching. I am pretty sure that that provision is in the 2002 Act, but I could be wrong. So we have that flexibility.

This measure causes me some difficulty, and that is why I wanted to wait until the Minister had spoken. Given that that exists already, and that probably everybody here could cite examples of people without QTS who are effectively teaching in schools—we have had a lot of examples already—what is going to change? This is primary legislation we are talking about. It is not sufficient to say that this measure allows something at the edges, a fraying of the boundaries, a bit of give and take. With respect, that is not good enough for primary legislation. It is about laying down what is allowed and what is not allowed.

Secondly, if this really is not much—if it is just a bit more blurring of the edges, on top of the blurring of the edges that was set up in 2002—why free schools? Is the Minister saying that these people have nothing to offer to academies, have nothing to offer to maintained schools? Let us just think about it. We could have an example—let me be kind—of a brilliant person with suitable non-teaching qualifications who wants to and is willing to teach this nation’s children. The only place they could do that is a free school. Why should the Government stop children in 99.9 per cent of the system being able to benefit from that teacher’s experience?

I think the Minister is caught between two extremes. Either it is nothing, so put it everywhere—just say. One way might be to produce an edict saying, “Remember that there are people other than those with QTS who can work alongside those with QTS and good leaders in our schools, and we welcome you and please populate our schools”. Or it really is a shift in the law that is going to draw the boundary in a different place in terms of the qualifications that teachers need. If it is the latter, with respect again, we need more than we have had so far about where those boundaries will be drawn. Saying that it is a bit of fraying it at the edges, a bit of give and take is not really good enough for primary legislation.

--- Later in debate ---

Moved by

[Lord Hill of Oareford]

124E: Schedule 13, page 95, line 14, at end insert—
“ In section 10A (charges at boarding Academies) (inserted by section 59), in subsection (1)(a), for “an Academy” substitute “an Academy school or an alternative provision Academy”.”

--- Later in debate ---

[Baroness Whitaker]

My Lords, I do not want to hold up the Minister but I should like to endorse what my noble friend Lord Peston has said. At this time particularly, we need to be careful about foundations or organisations aimed at dividing our community rather than uniting it.

[Lord Hill of Oareford]

My Lords, in some ways the discussion we have had around this matter reprises some of our earlier debates on the place of religion in the school system. We will probably have a bit more in a moment when we move on to the next group. To some extent, we are on reasonably well worn ground for this Committee. The right reverend Prelate reminded us that the Government’s basic approach is to try to operate on an “as is” basis and not unpick things that have been arrived at over a period of time. It is certainly the case that the Government are committed to intervening in schools where there is consistent underperformance, whatever kind of school it is—faith or non-faith—which is the starting point for these measures.

The point raised by the noble Lord, Lord Peston, in some respect, has been answered by my noble friend Lord Elton who is more knowledgeable than me on a lot of its history and drafting. On the precise point, I will write to the noble Lord and will copy it to my noble friend. I will set that out straight for him.

The reason for the Government taking the position that they have is that we know that religious bodies have often made a substantial contribution to these schools, not only through influencing the ethos and practice of the schools but also in contributing land and sometimes money for educational purposes. In recognition of that role, we think that they have a right to be consulted. As the noble Lord, Lord Sutherland of Houndwood, pointed out, this is a right to be consulted and not a right to veto a conversion, which is an important point. We want the religious authorities to be reassured that we will take account of their views when it is necessary to intervene in their schools.

We know that religious bodies have played an important role in our diverse educational system and we value that contribution. We will intervene in underperforming schools, including faith schools, but we think—a point, I think, also made by the noble Lord, Lord Sutherland—that intervention in those schools will work best when it is done in collaboration with the faith bodies so that due consideration is given to that school’s religious ethos. With that, I would ask the noble Baroness, Lady Murphy, to withdraw her amendment.

--- Later in debate ---

[Lord Hill of Oareford]

My Lords, the main points made by the noble Baroness, Lady Hughes, and my noble friends, revisit many of the issues that we discussed at length during the passage of the Academies Act last year. The current arrangements in place for consultation were arrived at following those debates a year ago and were amended to reflect points made then by my noble friend Lord Phillips of Sudbury and my noble friend Lady Walmsley, whom we welcome back to the Committee.

As we said during the passage of that Act, the Government believe that when an academy is being set up there should be fair and open consultation, but we believe that those running the consultation are best placed to determine whom to consult, how, and at what stage of the process. As far as timing is concerned, an academy order is a procedural step which enables a school to convert. It does not place the school or the Secretary of State under any obligation to proceed with the conversion, and it does not mean that conversion is a foregone conclusion. The key point which we debated last year is that the consultation has to happen before the funding agreement is signed—that is the point at which the agreement becomes binding. The precise point at which it happens should, it seems to us, be left to those carrying out the consultation.

I agree with the noble Baroness, Lady Hughes, that it is quite difficult to foresee situations where it would not be appropriate to consult the kinds of people that she mentions in her amendment. But as we argued last year—I think it is a point made by the right reverend Prelate—we do not think that we need to specify long lists of people who need to be consulted, and that is a general approach from which we are, across the piece, trying to move away.

[Lord Knight of Weymouth]

I think I understand what the Minister is saying when he says that you should not prescribe a long list, but this is not a long list. It is four of the key groups. They are important to name because we can assume that it is extremely unlikely that an organisation would not consult parents, pupils or staff, but I can foresee plenty of circumstances where an academy group might not want to consult the local authority. I think that the points made by the Minister’s noble friends about allowing the strategic role of local authorities to continue are important.

[Lord Hill of Oareford]

Whether the list is short or long, the point is that if there is a short list, there will be an argument about people who have been left off. People will ask why they have not been consulted, and then we will have a debate about lengthening the list. If there is a long list, there are the problems that the noble Lord has already accepted. It is perfectly possible to leave it to people’s common sense and judgment. As the noble Lord knows from the work he has done with academies, if you are setting about an academy conversion, you want to do it with the support of local people and the community because that is how you get it off to a good start. I think that we can leave it to their common sense and wisdom.

[Lord Knight of Weymouth]

I am sorry to come back, but the key word at the beginning of Amendment 126ZBA is “including”. This is not an exclusive list, so whether it is a long list or a short list is to some extent irrelevant. We are not going to have a debate about whether something has been excluded once the word “included” is in it. The key thing is that in statute it would be a requirement to consult the local authority. That is what his noble friends are after.

[Lord Hill of Oareford]

The view of the Government is the same as it was a year ago. It is the view that the House reached after debates and, indeed, votes; namely, that we do not need to prescribe lists of people, short or long, in legislation in the way that perhaps happened in the past.

[Baroness Hughes of Stretford]

If the Secretary of State received an application and the consultation that had been done beforehand did not include the views of parents and staff, what would his attitude be in making a decision on the basis of that consultation?

[Lord Hill of Oareford]

The view that the Secretary of State would take is that schools that are converting need to comply with the terms of the legislation—the Academies Act—which requires that they should consult such people as they think are appropriate.

[Baroness Hughes of Stretford]

We have had a number of occasions when, because the Minister is a very reasonable person, we have not pressed to the point where we have got a satisfactory answer from him. This is one of those occasions. We had a similar situation not long ago in relation to qualified teachers. What would the view of the Secretary of State be if he received an application that did not inform him of the views of parents? What action would he take to ask why? Would he ask the applicants to go back and get them? Would the Secretary of State be happy to make a decision without knowing what local parents thought about the proposal?

[Lord Hill of Oareford]

It is clearly the case that the governing body wanting to convert has to consult the groups it considers appropriate. If people felt that they had not had a chance to be consulted and were to raise those complaints with the department, that would clearly be something that the department would have to take into account in reaching the decision that it takes. It is not possible for me to go through every possible circumstance that one can possibly come up with and give an answer. There is a clear legislative framework within which the department operates.

[Baroness Hughes of Stretford]

I want to press this again because this is not about what the applicants think. This is about the point at which there is an application on the table for a decision by the Secretary of State. I am asking the Minister to tell us what would be the view of the Secretary of State. Does he think he could make a decision without knowing the views of local parents? What would be in the Secretary of State’s mind and what would the Government at that point require in order to make a decision? If he were to say that the Government would require to know what parents think, I would say that that requirement ought to be laid upon the applicants in the way that they frame the consultation. However, at the moment I am asking: what is the Government’s view about what they need to make a decision?

[Lord Hill of Oareford]

I am sorry not to be able to be more helpful to the noble Baroness because I know that she is also extremely reasonable. She will no doubt keep pressing and we can return to this another time. But the Government’s position is that the legislative requirement on a converting governing body is set out in the Academies Act 2010. The Government take into account whether or not schools have demonstrated that they have complied with those requirements, which are set out clearly and were inserted as a result of debate on this Bill last summer.

[Lord Peston]

My Lords, is the noble Lord going to respond to his noble friend’s devastating intervention on new Clause 5(3)(b) to be inserted in the 2010 Act under Clause 55? Will he explain why she is not right that the one group which should not under any circumstances carry out the consultation is the people mentioned in that new clause?

[Lord Hill of Oareford]

I was coming to that point. I have not got very far with my response. On precisely that point, my noble friend Lady Brinton raised the issue of who should do the consulting when schools are considering converting to academy status. As we have just been discussing, the starting point of the Government is that it should be carried out by the school’s governing body. However, this approach might not always work with underperforming schools that are eligible for intervention. There may be rare occasions when the governing body of the underperforming school seeks to block the development of an academy solution by refusing to consult. Clause 55 resolves this issue, as my noble friend pointed out, by permitting the proposed sponsor to do the consulting.

My noble friend suggests that the local authority would be a better alternative than the proposed sponsor. Clause 55 relates to schools that are failing their pupils and we think need radical improvement. We know that the evidence shows that converting such schools into academies with excellent sponsors can bring about that improvement. Becoming an academy involves, by definition, moving out of local authority control, so it seemed to us it was not right for the local authority to lead the consultation. It is the sponsor who has been identified as able to transform the school, so in our view they are better placed to consult on its future direction. But that consultation has to be carried out in a proper way.

My noble friend also raised important points about the local authority role in decisions about new and additional academies, such as free schools. I hope that I can reassure my noble friend that what her amendment seeks to put into law is already happening in practice. As a result of views expressed during the passage of the Academies Act, the Government introduced a specific requirement on the Secretary of State to take account of the impact of free school proposals on other schools. In meeting this requirement, the department seeks the view of relevant local authorities. In addition, any group wishing to set up a free school has to consult locally on its proposals. The consultation report is an important part of its application to the department. In deciding whether to approve a free school proposal, the Secretary of State therefore takes account of the views of the local authority and other interested parties, including on the issue of the level of need for additional school places.

We know that in practice, many local authorities are already playing a more active role than this. Some are building the free schools programme into their strategic schools planning and have provided proposers with support in areas such as finding sites, getting planning permission and working out levels of demand. It is the case that we do not believe that free schools should be set up only where local authorities identify that they are needed. The key point is to try to make the system more responsive to parental demand by giving parents, teachers or community groups the opportunity to do so.

We accept that consultation is important. It should be conducted in an open way. It should be appropriate to local circumstances. The Academies Act and this Bill provide for such consultation and I would therefore urge the noble Baroness, Lady Hughes of Stretford, to withdraw her amendment.

[Baroness Hughes of Stretford]

My Lords, I thank those Members of the Committee who have contributed to the debate. I also support the amendments spoken to by the noble Baroness, Lady Brinton, which would further refine reasonable requirements regarding how and by whom the consultation should be undertaken. I absolutely agree that it should be undertaken by people without a vested interest in the outcome. I also agree with her that the proposed new schools should comply with local authority requirements regarding the need for new schools.

The fact that this matter was debated a year ago when we discussed the Academies Bill—as the Minister said—does not mean that we should miss an opportunity to correct something that needs to be corrected. There are two key questions here: why should decisions on the scope and timing of consultation be left to the governing body to determine and why should a party with an interest in pursuing the objective of an academy be allowed to undertake the consultation? Unfortunately, the Minister did not answer either of those questions at all, let alone unsatisfactorily. His constant recourse to the legislative requirements for consultation, as if they have nothing at all to do with the Government, was very strange indeed.

My questions sought to ascertain what the Government require by way of information about the views of parents, staff, pupils and local authorities—four key groups—when the Government finally take a decision. Will they take a view at that point in the decision-making on the adequacy of the consultation, and therefore on the quality of the information that the Secretary of State has to enable him to make an informed decision? I am afraid that the Minister implied that the Government will require no information on the views of those groups. The governing body may decide not to consult those people or decide to consult them only after the Secretary of State has made a decision. That is simply not right. I think that all of us in this Room know that it is not right. I have some sympathy with the Minister as he is reasonable and he has been placed in a position of arguing for the demonstrably unarguable. I have no doubt that we will return to this on Report, but for the moment I beg leave to withdraw the amendment.

--- Later in debate ---

[The Lord Bishop of Hereford]

My Lords, am I allowed to ask whether the Minister might be kind enough to respond to the point I made in relation to this clause? Given all the other exchanges that we have had, I think it has slipped his memory.

[Lord Hill of Oareford]

I am not sure what the protocol is but I will write to the right reverend Prelate.

[The Deputy Chairman of Committees (Viscount Ullswater)]

The Minister can reply.

[Lord Hill of Oareford]

I will write to the right reverend Prelate setting out the matter rather than holding up the Committee.

Clause 58 agreed.

--- Later in debate ---

[Lord Peston]

Noble Lords will not be surprised to know that I take it for granted, somewhat cynically, that religious schools will be biased in favour of appointing and promoting people of the same religion. That is part of human nature and it is how people carry on. I do not need to remind noble Lords that I am not qualified in the law. However, I am absolutely horrified to hear what both my noble friend Lady Turner and the noble Lord, Lord Avebury, have said about the legal advice they have been given from lawyers, who are certainly well qualified to give such advice.

I have a couple of points for the Minister. First, do we have any data on what actually goes on in these religious schools? They are financed using public money but do we have data on the religious mix of their staff and of who gets promoted and who does not? Are there any facts at all that could guide us? Secondly, if the law is being broken, I am not clear who is breaking it. I would have guessed that it was the schools that were breaking the law but the noble Lord, Lord Avebury, seemed to suggest that it was the Government, so I am a bit lost on that. I wonder if the Minister could tell us something about that as well. I assume that for one lawyer who you could buy to give you one opinion, the Government could buy another one to give them a different one. That adds to my cynicism. Finally, I hope that the Minister is not going to go through a legal document sentence by sentence, otherwise we will be here past 10 pm.

[Lord Hill of Oareford]

My Lords, on that particular point let me reassure the noble Lord, Lord Peston, that I do not intend to do that and am not equipped to do it. Generally, there have been a number of important detailed and technical points made by the noble Baroness, Lady Turner of Camden, who moved the amendment, and by my noble friend Lord Avebury. The sensible thing on some of those technical matters is to follow them up in writing and to have the kind of meeting that my noble friend suggested. I would go through it in that way rather than trying to grind through technical and detailed points now, which I would not get right either. Generally, that is a sensible way forward but perhaps I might make a few general responses to some of the broad points that have been made, then I will follow them up as I have suggested.

The Government’s overall position, as noble Lords will know, is that we accept that faith schools should have freedoms to employ certain staff according to religious considerations. Those freedoms are there for a reason: to maintain their ethos and to provide the sort of education that parents want. The School Standards and Framework Act 1998, which was passed by the previous Government, reflects that position and we believe that it still strikes the right balance between the prohibition of religious discrimination and the need for faith schools to maintain their religious character.

As for the general point made by my noble friend Lord Avebury about the European framework directive concerned, as I said I will follow that up with him. We do not accept that Section 60 of the School Standards and Framework Act contravenes it. We have seen the opinion that my noble friend referred to and I am advised that we have not changed our view on that. However, as I said, we will reflect and I will meet him to discuss that with officials who will be better equipped than I to have a sensible conversation with him.

So far as academies generally are concerned, it is our policy that faith schools converting to academies will, upon conversion, retain the freedoms and responsibilities which come with those freedoms. That is true in terms of admissions, as we have discussed before, and in terms of staffing. Voluntary-aided schools have always had the ability to take faith into account in the employment of all of their teachers, so where a VA school converts we have preserved this position. Voluntary-controlled and foundation schools have, in comparison, historically only been allowed 20 per cent of staff as reserved teachers, employed to deliver RE in accordance with the tenets of the school’s faith. Where a school’s freedom to take religious considerations into account has historically been restricted in this way, we have also made a commitment that those restrictions will continue when a school converts. This position is currently protected in academies’ funding agreements but, as the noble Baroness, Lady Turner of Camden, said, we are using Clause 60 to ensure that these protections are also preserved in legislation. That was a commitment I made last year to the noble Baroness, Lady Massey, who is sadly not in her place, during the passage of the Academies Act, and I am glad to have the chance to give it legislative effect.

The noble Baroness and the right reverend Prelate discussed a specific point, and I hope this will clarify their exchange. I am told that the Education and Inspections Act 2006 amended the School Standards and Framework Act 1998 to allow, but not require, the head teacher to be a reserved teacher, so the head teacher may be a reserved teacher, but does not have to be. That was to meet the needs of small schools with few teachers.

Turning to the specifics of the clause, Amendments 133 and 134 relate to the Secretary of State’s power to make an order to disapply the requirement that academies that were previously voluntary-controlled or foundation schools must employ up to 20 per cent of their teachers who are selected on their ability and willingness to teach denominational RE. Once that requirement is disapplied, the academy will have the ability to select up to 100 per cent of its teachers based on faith criteria, as any other independent school can. This was the point that the noble Baroness, Lady Murphy, was concerned about. I would like to make it clear to her that the power to issue such an order would be used only in circumstances where such an academy had changed its governance arrangements from minority to majority faith representation. It would mirror a process that is already possible in the maintained sector whereby, for example, a VC school can change category to a VA school and has to go through a consultation.

I agree with the point that issuing an order should not be a decision that is taken lightly. Any order would be issued only if a clear proposal had been set out justifying a change in the academy’s governance and staffing arrangements, a consultation of affected parties had taken place and a considered decision had been made in the light of responses to that consultation. Such an order would contain transitional provisions to protect the employment of teachers employed prior to the order taking effect. I hope that provides some reassurance.

On Amendment 127, I am advised that the provisions of the Equality Act 2010 mean that no teacher in an academy without a religious ethos can lawfully suffer less favourable treatment because of their religion or belief, as is required by the framework directive, so we think that the replication of Section 59 of the School Standards and Framework Act 1998 for non-religious academies would be an unnecessary additional layer of legislation.

As I said, I will follow up some of these more technical, detailed points, and we can pursue them further. Overall, the Government’s position is that parents choosing to sent their children to a faith school do so with the understanding that—

[Lord Sutherland of Houndwood]

Will the Minister clarify a point for me on this? The amendments have been presented, quite appropriately, as a matter of protecting the conditions of work of staff. That I understand, and naturally I support it very warmly, but I am also concerned about protecting the conditions of learning for pupils in these schools. Will exemption from inspection attach to some of these schools with a fairly high proportion of reserved teaching places? If that exemption could apply, what protection will there be for children who with a thorough inspection of the system could learn whether the teachers appointed in this way had the appropriate qualities and skills?

[Lord Hill of Oareford]

We touched on this before when we had the debate, which seems a very long time ago, about the arrangements for Ofsted and exemption from inspections. I know that the noble Lord has strong views on that point which we will, no doubt, return to later. The short answer to his question is that I think he knows the answer to his question. It was a rhetorical question about whether it is possible that some of those schools could be exempt from inspection because if they have an outstanding Ofsted clarification the answer to that question is probably yes. We will discuss that further.

--- Later in debate ---

Moved by

[Lord Hill of Oareford]

142A: Schedule 16, page 115, line 34, at end insert—
“Value Added Tax Act 1994(4) Group 6 of Part 2 of Schedule 9 to the Value Added Tax Act 1994 (exemptions: education) is amended as follows.
(5) In item 5A—
(a) omit paragraph (a);(b) in paragraph (b), for “that Act” substitute “the Apprenticeships, Skills, Children and Learning Act 2009”.(6) After item 5A insert—
“5B The provision of education or vocational training and the supply, by the person providing that education or training, of any goods or services essential to that provision, to persons who are—
(a) aged under 19,(b) aged 19 or over, in respect of education or training begun by them when they were aged under 19,(c) aged 19 or over but under 25 and subject to learning difficulty assessment, or(d) aged 25 or over, in respect of education or training begun by them when they were within paragraph (c),to the extent that the consideration payable is ultimately a charge to funds provided by the Secretary of State.”(7) In note (5A), for “item 5A” substitute “items 5A and 5B”.
(8) After note (5A) insert—
“(5B) In item 5B, “subject to learning difficulty assessment” has the same meaning as in the Education Act 1996.””

[Lord Hill of Oareford]

My Lords, in a moment we shall come to a discussion about the abolition of the YPLA on which we shall have a broader conversation. First, I shall deal with minor Amendment 142A to Schedule 16, which is the final consequential amendment to primary legislation that is required as a result of the proposed abolition of the YPLA. I have written explaining the detail of it. At present, the Value Added Tax Act 1994 exempts from VAT any education and training for 16 to 19 year-olds that is funded by the YPLA. A VAT exemption also applies to any goods or services essential to that provision. This amendment ensures that the VAT exemption continues to apply when the Secretary of State assumes responsibility for the funding in April 2012. The amendment does not make any changes to the education, training, goods or services that will be exempt from VAT. It simply amends the VAT Act to reflect that the source of the funding is changing. I beg to move.

[Baroness Walmsley]

I have Amendment 143 in this group. First, I thank the Minister for his letter to me dated 5 September about this matter. I suspect that it may well have been copied to most Members of the Committee. He explained the Government’s rationale for moving YPLA, Partnerships for Schools and the Department of Education’s distributing role of funding local authorities for primary and secondary schools and bringing them together in the education funding agency, which will be responsible to Ministers, and Ministers will be accountable for its operation. It would make sense if it becomes more efficient than the current system, but it is particularly important that we do not lose the progress that has been made over the short life of the YPLA. It is a great compliment to the YPLA that the Association of Colleges has written to me and has asked the noble Earl, Lord Listowel, and me to lay this amendment. It feels that, in its short life, the YPLA has communicated very effectively with the providers of post-16 education and has made sure that the voices of college leaders, principals and so on have been heard on its board, as well as the voice of schools.

The Association of Colleges feels that the chief executive and the chair of the YPLA have very quickly opened and maintained a very effective dialogue. My noble friends on these Benches and I can vouch for that because it has also had a dialogue with us. I am sure that other political groups have had the same dialogue. It is important that the proposed changes do not threaten that progress or stifle the open communication of views of the sector with those who are providing and distributing the funding.

There is a little fear out there that the new education funding agency, working within government, will become disconnected from the post-16 education sector. We hope that giving the Secretary of State the power to set up an advisory board with the structure as laid out in the amendment would prevent that happening. I am very pleased to tell those Members of the Committee who have not seen the letter from the Minister that its last paragraph states:

“I can see that there is a case for establishing an expert group, drawn from its customer base, to advise the new Agency on its operation. I have asked the chairs of the YPLA and Partnerships for Schools for their advice on this matter; that is due very shortly and I expect to be in a position to confirm our intentions later in the autumn”.

I am most grateful to the Minister for that and I wonder whether in his response he will elaborate on whether he feels that this advice will lead to the establishment of such an advisory board and whether he feels that it needs to be in legislation or should just be at the discretion of the Secretary of State. On the whole, those of us who want to ensure that that communication continues and that that expert advice is always available would like to see it in legislation.

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[Lord Hill of Oareford]

My Lords, my noble friend set out the reasons very clearly for bringing together the functions of the YPLA with Partnership for Schools and the DfE, to give us a new education funding agency from next April that will be a single body responsible for funding. As she said, it will be an executive agency of the department, which will make clear that Ministers are responsible for the success of its operation. We do not need legislation to create the new agency or to close Partnership for Schools, which is a limited company. However, the YPLA is a statutory body and closing it requires repeal of the provisions of the ASCL Act 2009.

My noble friend's amendments seek to establish a panel of experts to advise on matters relating to education and training for young people. I know how helpful the YPLA has found its current board. It very much values the contributions that have been made, and I am not at all surprised by the comments that the AoC has made to my noble friend because there is a widely held view about those contributions. I have been fortunate enough to work with the board and am very grateful for the work that it has done. As we work to set up the new education funding agency, we are giving careful thought to how we could benefit from advice of that kind in the new arrangements that we will have. As I said in my letter, we are being helped by the chairmen of the YPLA and Partnership for Schools, Les Walton and Mike Grabiner. I hope that, later in the autumn, we will make clear the precise way in which we can do that.

The amendments propose an advisory board whose remit will be wider than the funding matters that are the principal focus of the education funding agency. It is certainly the case that Ministers and officials have long benefited from advice from all parts of the education sector to inform policy-making. The Learner Support Consultative Forum, which advises on financial support for 16 to 19 year-olds and adult learners, will continue to play a key role in advising on the operation of both the new bursary scheme and other learner support programmes. We have in place other arrangements, including standing advisory groups and formal consultation exercises, which enable others to contribute. As well as drawing on the expert advice to which my noble friend referred, there are a number of ways in which we will be able to address concerns.

The noble Baroness asked whether our preference would be for legislative or non-legislative means. Given that the new agency will be non-statutory, our view is that any advisory group should also be non-statutory. We will come back to that question later.

I say to the noble Baroness, Lady Howe, that I know very well the strength of feeling that she and the noble Lord, Lord Ramsbotham, have, and the work that they do, in this area. We discussed on Monday alternative provision and pupil referral units. There is an awful conveyor belt that takes too many children from illiteracy to pupil referral units, young offender institutions and prison, and then back to prison. I agree with her about the importance of trying to stop that process. That is why at one end we are reforming the education system with the emphasis on literacy and numeracy, and measures to help teachers tackle poor behaviour and set boundaries. We hope that that will start to tackle the problem at source. However, I recognise that we have to tackle the problem from the other end, too.

The Ministry of Justice and the Youth Justice Board have launched a consultation on the strategy for the secure estate for young offenders. It makes clear that the provision of high quality education and training is a vital component of the rehabilitation process and should be part of trying to help young offenders to turn away from crime and lead more fulfilling lives.

As the noble Baroness, Lady Howe, will know, the YPLA currently manages the contracts for the education of young offenders on behalf of the Ministry of Justice. By and large we think that those contracts operate well, but I have agreed with the Prisons Minister that the responsibility for managing those contracts should pass to the education funding agency next April when the YPLA is dissolved. Because the new agency’s staff will come largely from the YPLA, we think that they will have the capacity and expertise to fulfil its responsibilities.

However, that is an interim arrangement and the Ministry of Justice is considering the arrangements in the long term. I know that the noble Baroness, Lady Howe, with the noble Lord, Lord Ramsbotham, met the Ministry of Justice earlier in the summer. I am glad that she did so and hope that she will continue to talk to the Ministry of Justice, which is the lead department on the educational side, as we go forward. I, too, am keen to talk to her about that. That is where we are on the replacement arrangements for the YPLA. With that, I hope that my noble friend will feel able to accept my reassurance.

Amendment 142A agreed.

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[Lord Hill of Oareford]

My Lords, let me start on that fair point made by the noble Baroness, Lady Jones of Whitchurch, and my noble friend. We intend to commence those support duties on local authorities and learning providers. The issue that we are considering today, which I will come back on, is the enforcement process. We accept that those support duties need to be commenced.

The latest statistics show that we had 96.1 per cent of 16 year-olds and over 87 per cent of 17 year-olds participating in education or training at the end of 2010. That is a sign, which I know that the noble Baroness will welcome, that more young people are seeing the value of continuing their education and that the education and training sector is becoming more flexible in meeting their needs. We agree with the previous Government’s plans to raise the participation age to 17 in 2013 and 18 in 2015, which was the timescale set out in the Education and Skills Act 2008. We are committed to continuing that. We think that that timescale to which various bodies—local authorities, providers, schools and colleges—are working is sensible and gives schools, colleges and workplaces offering apprenticeships time to prepare. I recognise the point made by the noble Baroness, Lady Jones, that this is a probing amendment to look into these points. I do not think that January 2012 is actually what she had in mind. I agree with her that we think that that is not a workable suggestion but that the timescale set out by the previous Government is the one to which we will continue to work.

The amendment would also commence all the enforcement provisions in step at the same time as the leaving age was raised in one go. Those provisions would allow local authorities to issue attendance notices, bring young people before attendance panels, give out fixed penalty notices, and ultimately, as a last resort, prosecute young people in a criminal court. I know that the noble Baroness, Lady Jones, said that she did not want to criminalise young people, and we certainly do not want to do so. That is our thinking behind delaying. We want young people to participate because they recognise the benefits that education and training will bring.

As it stands, Clause 71 allows us to delay the commencement of the enforcement process, and we think that is the right way forward to give the system time to adapt. However, I want to underline that we do not intend to remove the enforcement provisions altogether, which I hope will reassure the noble Baroness. We will keep this under annual review. We hope that participation will increase because of the quality of the training on offer and because young people increasingly see its benefits, but if necessary we will commence all or some of the enforcement provisions. The pupil premium and targeted financial support via 16-to-19 bursaries will help ensure that young people are supported to continue learning. We have a process in place, run by local authorities, that ensures that 16 and 17 year-olds receive an offer of a suitable place in learning and, as we have already discussed, we are implementing all Professor Alison Wolf’s recommendations to ensure that vocational routes generally are of high quality.

We are committed to raising the participation age. We will do it on the timetable laid out by the previous Government. We are not removing the enforcement process but are just delaying its introduction. We will commence the support duties that the noble Baroness raised, we will review the need for enforcement on an annual basis and we will ensure that it is introduced if that is appropriate. With those reassurances, I hope that the noble Baroness, Lady Jones of Whitchurch, will feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

I thank the Minister for that. I think we have an agreement about the date, although the date is not the point here. I think that we would be happy with the original date and with working towards that plan. I am slightly anxious because he talked a lot about enforcement. While the original legislation had enforcement mechanisms, the whole point of our amendment is that it is not about enforcement. Raising the participation age will work only if the infrastructure and the enforcement go hand in hand. I do not want the Minister to go away with the idea that we would come along with a big bludgeon and demand that young people stay on at all cost. That is not the purpose of the amendment. Its purpose is for teachers, local authorities and employers—all the players in the education of young people—to put in place all the mechanisms to ensure that that encouragement takes place.

I am still a little unclear about what the Minister means when he says that they will commence the support duties. We may have to return to that, because if that is the case, we would like to see those duties on the face of the Bill, and it is not clear to us at the moment that they are. This is about a balanced approach, it is about infrastructure and making sure that young people comply with the new legislation in equal measure. I am not sure, as the Minister has set out the position at the moment, that we will achieve necessarily what the original legislation aimed to do, so we may well return to this matter. I beg leave to withdraw the amendment.

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Clause 71 agreed.

[Lord Hill of Oareford]

My Lords, I think this may be a convenient moment for the Committee to adjourn.

Committee adjourned at 8.21 pm.

Education Bill

Lord Hill of Oareford Excerpts

Monday 12th September 2011 Grand Committee

[Baroness Howe of Idlicote]

My Lords, what the noble Lord has just said may well be the right approach. However, in the mean time, the important question was that asked by the noble Lord, Lord Elton, regarding number, where there has certainly been an increase. Obviously, as these matters are spread—as they should be, in my view—throughout the education system generally, it is very important that we know that adequate teachers and teaching assistants are trained to see that these children receive the very best education.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, I start by saying that I agree very much with the noble Lord, Lord, Low, about how important it is to make sure that teachers have the skills that they need to teach all pupils in the classroom, including, of course, those with special educational needs, and that it is not something that will be swept under the carpet—a point made by the noble Baroness, Lady Jones of Whitchurch.

In our SEN and disability Green Paper, which we published earlier this year, we set out a broad approach to achieving higher standards in the teaching of special educational needs and disability. Those measures included making the highly successful Achievement for All approach available to all schools; strengthening the coverage of SEN and disability in initial teacher training—in particular, by giving more trainees the opportunity to undertake extended placements in special provision in mainstream and special schools; continuing to fund the training of new SENCOs; establishing scholarship schemes to give experienced teachers and support staff the chance to undertake continuing professional development in SEN; developing advanced training modules in the most prevalent types of SEN, which will support teachers in developing their own knowledge and skills and in supporting other teachers; developing specialist modules in severe learning difficulties, and profound and multiple learning difficulties; and supporting specialist SEN training across clusters of schools. Those are some of the more general measures that we are taking, which I hope will reassure noble Lords. This is an area that we continue to take seriously. I agree with the noble Baroness, Lady Morris, that this is not something that one wants to see as an add-on; one wants to see it as integral to training.

Alongside those measures, teaching schools will, we hope, play an important role. We announced the first 100 teaching schools this July. The designation criteria did not include a specific requirement in relation to SEN, but they are intended to ensure that each teaching school has the capacity to improve teaching schools in SEN and disability in its area. I will write to the noble Baroness, Lady Morris of Yardley, with the information we have on the teaching schools rated as outstanding. In response to the point made by the noble Lord, Lord Sutherland of Houndwood, the new inspection framework we are developing with Ofsted will embed the connection between the achievement of different groups of pupils and the school's overall Ofsted judgment. Under that framework, for a school to be outstanding it will need to demonstrate that it is doing well for pupils with special educational needs and other vulnerable groups.

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[Baroness Sharp of Guildford]

My Lords, I, too, want to speak to Amendments 122A and 122B. Clause 43 gives the Secretary of State powers to intervene and close schools that are in special measures. That widens the powers of intervention to schools causing concern. Subsection (3) strengthens the Secretary of State’s powers so that where a local authority, having been directed to consider set performance standards and to issue a safety warning notice, has decided not to do so, the Secretary of State may direct the local authority to give such a warning notice. If such a warning notice is issued to a school and it fails to comply, it immediately makes itself eligible for intervention. As the noble Baroness explained, that may well mean that it is closed and an academy is opened in its place. Under the Education and Inspections Act 2006, the warning notice gives the school the right to ask the chief inspector whether the warning notice is justified and the chief inspector may confirm it or otherwise.

Our problem with the subsection is the degree to which it removes all discretion from local authorities. The problem is that a local authority is asked to consider whether to give a warning notice and to set performance standards. If, having looked at the school, it decides that other measures might be more appropriate and it therefore does not issue a warning notice or the appropriate performance standard, the Secretary of State may now just peremptorily intervene. At a time when the Government are anxious to try to devolve responsibilities—the Localism Bill is going through the main Chamber today—it is against the whole spirit of localism that the Secretary of State should be given these somewhat draconian powers.

Amendment 122B is to some extent a probing amendment. It suggests that we want to know, if academies fail in the same way as some schools fail, whether they have to obey the same rules as maintained schools have to. Is it appropriate that there should be intervention in exactly the same way and that they might be closed down? If they are closed down, the obvious solution would be for the local authority to have the power to step in and open a maintained school in its place—a sort of quid pro quo for the shutting down of a maintained school and the opening of an academy. Here we would have the equal and opposite effect. We would like to know a little more about what happens if an academy fails.

[Lord Hill of Oareford]

My Lords, none of us wants to see underperforming schools letting down pupils year after year. To answer the question put by the noble Baroness, Lady Hughes of Stretford, it is to tackle that entrenched underperformance in certain areas that we are keen to take these measures, which are similar to measures that the previous Government intended to take. We know that out of the 200 worst performing primary schools in the country, over half have been below the floor standard for over 10 years, and 112 of the 200 worst performing primaries are in local authorities that have never issued a warning notice. I know that the previous Government were keen to tackle underperformance, and so are we.

Our starting point would certainly be that underperformance should ideally be addressed by locally developed and agreed solutions, and we are seeing more and more examples of local authorities working with the Government and schools to come up with agreed sponsored-academy solutions. Where there is consistent underperformance, however, and the school and local authority seem unable or unwilling to tackle it, we think that the Secretary of State needs to be able to intervene. This is an urgent and important issue so we intend, subject to the passage of the Bill, to commence the provision on Royal Assent.

The Secretary of State already has a range of intervention powers. Where schools are eligible for intervention—because they have failed to comply with a warning notice or have been judged to require special measures or to require significant improvement by Ofsted—the Secretary of State can appoint additional governors, impose an interim executive board or make an academy order. The Secretary of State can also require the closure of a school in special measures and direct a local authority to consider issuing a warning notice. It is these two powers that the previous Government’s Children, Schools and Families Act sought to extend, and which Clause 43 of this Bill also seeks to extend.

We believe that there is an inconsistency in the current law that means that one intervention option, directing closure, is available only for schools in the Ofsted category of special measures. Where the Secretary of State needs to intervene, he should be able to choose a form of intervention that is most appropriate for the circumstances. If he chooses to direct closure, he has a duty to consult, including with the local authority and the school, and he will have to take account of the views expressed in reaching a fair and reasonable decision.

Warning notices are a well established legal tool for addressing underperformance. They can help schools to recognise and address their problems or, if the school is not capable of addressing the action, they can enable further intervention by either the local authority or the Secretary of State. However, it is the case that local authorities use their power to issue warning notices inconsistently. Two-thirds of them have never issued a warning notice at all. That is why the Secretary of State needs to be able to direct the local authority to issue a warning notice: so that they can be used where they are necessary, as opposed to being dependent on the practice of the local authority. However, we accept that there need to be checks and balances. Therefore, we have included a provision giving the governing body a right to appeal to Ofsted against a direction to issue a warning notice. It would remain the case that the Secretary of State would first have to direct a local authority to consider giving a warning notice. It is only if the local authority decided not to do so that the Secretary of State, having considered the reasons given by the local authority, could then direct it to issue a warning notice, subject to that check of the appeal to Ofsted.

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[Baroness Benjamin]

My Lords, I should like to bring in the point of view of parents because many of them do not know who to complain to. I recently came across a case of a mother whose son was excluded. He was bullied at school and the SEN provision at that school was not particularly good, but because he was bullied he responded and got excluded. The mother thought that he was being treated unfairly but did not know who she should complain to. She wrote to her MP and me, and I could not tell her the best route to take. We therefore have to consider educating parents on who they need to complain to, and I support the amendment of the noble Lord, Lord Low.

[Lord Hill of Oareford]

My Lords, I am grateful to the noble Lord, Lord Low, for tabling the amendment and for enabling us to have this conversation. My noble friend Lady Benjamin ended on a good point because getting a perfect complaints system that is able perfectly to deliver everything for everyone is an extremely tall order, but I am sure that there is more that we can do in terms of people being aware of the routes of recourse. One of the challenges for the Government and the department in thinking how to take this forward is making sure that there is clarity about the routes of redress and about the way that different routes of redress fit together, because confusion is part of the issue and my noble friend is right to say that it is not a sensible way forward to expect a parent who is concerned about their children to know how a complaints service works in every regard. I will therefore certainly reflect on that point.

The noble Lord, Lord Sutherland of Houndwood, has talked about the peaks of Whitehall and the Secretary of State sitting on his peak. It is worth emphasising that what we are talking about is returning to the situation that existed until April 2010. It is not therefore the case that we are proposing a leap into unknown territory and are striking out in some unknown way. The situation that we are seeking to return to is one that obtained until April 2010. Until then the Secretary of State had always considered unresolved complaints and, of course, the point was made that the Secretary of State is, in such cases, a manner of speaking and it is officials who consider the complaints on his behalf.

The LGO service was, as has been pointed out, established in only 14 local authority areas. My first point is that the vast majority of parents and pupils will see no change to the current arrangements in their areas. The Government are very grateful for the work of the Local Government Ombudsman in the 14 local authorities in which the schools complaints service has been operating. It is clear that the intention behind the creation of the service was a good one, but we are not convinced that the LGO school complaints service is the right way to ensure that issues that cannot be resolved locally between parents and schools are settled as swiftly as possible—and speed is obviously one of the important issues here. The LGO service is a good service, but is expensive, relatively speaking, and was described by the Association of School and College Leaders as being a sledgehammer to crack a nut—that was its phrase, not mine. We believe it is preferable to return to a system in which complaints about schools which cannot be resolved locally come to the Secretary of State.

The noble Lord, Lord Low, spoke particularly about special educational needs complaints. I agree with him that the present system and arrangements are far from clear. That is in part due to the complex nature of the current system, which, as he will know, the Green Paper is seeking to address. Parents do have a number of routes of complaint in relation to the SEN assessment and statementing process, depending on the precise nature of their complaint and the remedy they seek. He argued that it would be preferable for all complaints relating to SEN in schools and local authorities to go to the Local Government Ombudsman. However, I think it is fair to say that there may be complaints for which the power of the Secretary of State to direct compliance with legal duties can provide a swifter and more effective remedy for a parent who is frustrated by the failure of a school or local authority to take action. It is the case that intervention by officials in the department can be the prompt that resolves a difficult situation. Appeals about SEN assessment and statementing can also go to the First-tier Tribunal, which will remain. I think that it is hard, under the current arrangements, for there to be a single route of complaint. I accept that what is needed is clear information for parents on which route is most appropriate. Parents certainly want clarity. The department should work closely with the sector over the coming months to look at how the process for considering complaints about SEN provision works coherently for parents.

I accept that noble Lords have concerns about the capacity and capability of the department to provide a first-class complaint-handling service for parents. There was also a point raised about the YPLA. My honourable friend the Minister of State for Further Education, Skills and Lifelong Learning has made a commitment that the department will publish a set of standards on the timescales, clarity, transparency and accessibility of its consideration of complaints. With this in mind the department has started work to review the way that complaints are considered and to establish appropriate safeguards. The policy statement on Clause 44 that we circulated on 12 July outlines the draft standards that the department is developing, and I would welcome views on those standards from noble Lords. Through that work, we will ensure that the department has processes in place to consider complaints on behalf of the Secretary of State to the high standards that parents rightly expect.

Given the particular concerns relating to special educational needs complaints, officials recently met both the Special Educational Consortium and the National Deaf Children’s Society, which has been mentioned this afternoon, and will be meeting them again with the Local Government Ombudsman. Alongside the measures in the SEN and disability Green Paper to make the SEN system less adversarial, I am keen that the department should continue to work closely with interested parties in developing an improved service for this group of parents. I would like to extend an offer to the noble Lord, Lord Low, to discuss the improvements that we are seeking to make.

There was a specific question from the noble Earl, Lord Listowel, about the admissions arrangements for looked-after children. Complaints about admissions policies will go to the adjudicator. We are proposing to extend the groups of those that can complain. In terms of the refusal of a place to an individual child, there are the local admissions appeal panels. If there is further information I can send him, I will.

I recognise the views that have been expressed this afternoon, and I do think that this is an important area. I hope that I have provided the noble Earl, and other noble Lords, with some reassurance about the importance we attach to this, and at the moment I would ask the noble Lord, Lord Low, to withdraw his opposition to the clause.

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We are not convinced that parts of the reforms in this schedule concerning the management and governance of colleges are justified, the risks have been properly assessed and the consequences properly thought through. We hope that the Minister will take these issues away and reflect on them further.

[Lord Hill of Oareford]

I am grateful to my noble friend Lady Sharp for moving this amendment and for the work that she is doing on leading her commission. She brings a lot of experience to this debate. Central to our reform of the education and skills system, as the Committee know, is our belief that we should trust professionals. That is just as true for colleges as it is for schools. We all know the excellent work done by colleges as independent institutions, and my noble friend gave a number of excellent examples of colleges being dynamic nuclei, as I think the plural is, and being entrepreneurial. We know that last year’s Ofsted annual report showed that sixth-form colleges are the highest performing sector in providing further education, so we want them and FE to have greater freedom to build on their track record and raise achievement still further.

As well as some non-legislative changes that we are making, such as simplifying the 16-to-19 funding system, the Bill aims to remove the kind of unnecessary regulation that we believe holds colleges back from deciding how to manage their own affairs. That includes things like removing the power to direct a college to consider disciplinary action against a member of staff, reducing the restrictions on sixth-form colleges’ ability to form or invest in a company or removing the duty on colleges in England to have regard to guidance on consultation with students and employers.

In response to the concerns raised by the noble Baroness, Lady Jones of Whitchurch, regarding the capability of FE to manage borrowing and investments, I think that in some ways her questions highlighted a difference between us. Our starting point is that colleges are responsible, high-performing institutions, and we do not think that there is a reason to believe that they will borrow more money just because they no longer need to consult the relevant funding body. We expect them to take steps to ensure that their borrowings are proportionate to their business, as well as affordable. The financial health of a college should be the responsibility of its governing body. However, there are safeguards of the sort that the noble Baroness was seeking. Both the Financial Memorandum and the Financial Planning Handbook set out the mechanisms to ensure the continuing viability of their institutions, the conditions of borrowing, and the controls and monitoring arrangements in place to protect public money and the interests of students.

As my noble friend Lady Sharp argued, colleges make an extremely important contribution to the social and economic needs of their local communities. They do it in many of the ways that she outlined, and they also do it through the education they provide, the skills with which they equip young people, the jobs they create and through their links with local businesses, for example. Therefore, I think that the question is: given that they are doing this, do they need to have a legal duty to do so? The provision to remove the duty has been welcomed by the sector, including the Association of Colleges and the Sixth Form Colleges’ Forum, and we think that it is recognition of the trust that we have placed on the ability of institutions to take well-informed, rational decisions without the need for there to be too much direction from government.

The other amendments in the name of my noble friend Lady Sharp raise the question of freedoms that FE colleges have. The intention behind her amendments is to remove the Secretary of State’s powers to modify a further education corporation’s instrument and articles of government and to place a condition on the Secretary of State to secure the consent of the corporation’s governing body before making an order to dissolve the corporation. My noble friend mentioned two phrases to which I always respond in a Pavlovian way. She referred to Treasury rules and wanting to encourage FE colleges to be enterprising. I am sympathetic to the intention behind these amendments as the Government are committed to trying to reduce the level of external control. Her amendments raise an important issue. It is one that I am very happy to take away and consider further before Report. Perhaps we could discuss that further.

So regards the Government’s amendments, the noble Baroness, Lady Jones of Whitchurch, was kind enough to make the point that in effect we are trying to do what the previous Government attempted, but did not have the opportunity, to do. The aim of the amendments is to reinstate the statutory safeguards relating to voluntary sixth-form colleges. I provided information in the letter that I sent to noble Lords on 13 July. As the noble Baroness said, it was the Government’s view that legislation should reflect the distinct constitutional position of voluntary sixth-form colleges, and they confirmed that they would look to reinstate those protections through legislation. We agree with that view and, through these amendments, we seek to reinstate the statutory position. This includes ensuring consultation with all persons who may appoint or nominate foundation governors before the Secretary of State exercises his intervention powers. It will include consultation with the bishop where the bishop appoints or nominates foundation governors. To answer the noble Baroness’s question, I think that it reflects the concerns of the CES—a point about which she asked me.

So far as concerns the amendment that the noble Baroness, Lady Jones, moved on behalf of the noble Lord, Lord Knight, we are keen to place accountability for student performance and an institution’s own improvement firmly within that institution. Therefore, the Bill seeks to replace the current complex intervention arrangements, which involve both the YPLA and local authorities, with simpler arrangements where the Secretary of State has reserve powers of intervention. We are lucky to have a high performing college sector and we foresee these powers being used very rarely. These arrangements and the role of the Secretary of State have been welcomed by the Association of Colleges.

I hope that noble Lords will agree that the provisions contained in Schedule 12 and proposed in the government amendments are necessary to support the continued success of the college sector. They will ensure that providers are free to deliver high-quality education. They replace the current, complex arrangements for intervention in colleges with reserved powers and ensure that legislation recognises the specific governance and constitutional arrangements of voluntary sixth-form colleges.

As I said, I will pursue further the points made by my noble friend Lady Sharp. With that in mind, I ask her to withdraw her amendment.

[Baroness Sharp of Guildford]

I am extremely grateful to my noble friend for his sympathetic reply to the amendments. I am sorry that we have not had a little more movement on the amendment concerning well-being. Although in some senses, as my noble friend says, it is unnecessary, because a lot of colleges are doing it and I know that the Association of Colleges and the sixth-form college group welcome that, my point was that it helps to reinforce the issue. However, that is a background issue.

To pursue the other, rather esoteric issue, I know that the team in the Department for Business, Innovation and Skills is working hard on it, and I hope that we can get some changes to the Bill that will satisfy both the Treasury and the Office for National Statistics. With that, I beg leave to withdraw the amendment.

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Moved by

[Lord Hill of Oareford]

122BA: Schedule 12, page 90, line 32, at end insert—
“ In section 33E (principal powers of a sixth form college corporation), in subsection (2), after “subsection (1)” insert “and (in the case of a sixth form college corporation to which section 33J applies) section 33J(1A)”.”

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Moved by

[Lord Hill of Oareford]

122BB: Schedule 12, page 90, line 39, at end insert—
“ (1) Section 33J (special provision for certain institutions) is amended as follows.
(2) After subsection (1) insert—
“(1A) A sixth form college corporation to which this section applies may (accordingly) conduct the relevant sixth form college in a way that secures that the established character of the sixth form college is preserved and developed (and, in particular, in a way that is in accordance with any trust deed relating to the college).”
(3) In subsection (3)—
(a) for “reference in subsection (1)(a) to the established character of a sixth form college is” substitute “references in subsections (1)(a) and (1A) to the established character of a sixth form college are”;(b) for “a reference” substitute “references”.”

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Moved by

[Lord Hill of Oareford]

122D: Schedule 12, page 93, leave out lines 2 to 11 and insert—
“(4) Subsections (4A) and (4B) apply to a sixth form college which is specified, or falls within a class specified, in an order under section 33J(2).
(4A) Before doing one or more of the things listed in subsection (6), the Secretary of State must consult—
(a) the trustees of the sixth form college, and(b) each person or body with power under the college’s instrument of government to appoint or nominate one or more of its foundation governors.(4B) After carrying out a consultation under subsection (4A), the Secretary of State must give the persons and bodies consulted a notice stating—
(a) what the Secretary of State has decided to do;(b) the reasons for the decision.””

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[Baroness Jones of Whitchurch]

My Lords, I turn to Amendment 124A. Clause 52, among other things, allows for the creation of alternative provision academies, which are defined as institutions,

“principally concerned with providing full-time or part-time education for children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless alternative provision is made for them”.

Currently, pupil referral units perform that role, so the Bill effectively allows them to become academies.

Our concerns about these new proposals echo those that we raised in previous debates relating to excluded pupils; for example, the repeal of the duty of schools to enter into behaviour and attendance partnerships and the removal of appeals panels that can reinstate wrongly excluded pupils. They also mirror our concerns regarding Clause 49.

Pupil referral units which become academies could grow more isolated from other schools and be cut off from current partnership working, including with local authorities. I ask the Minister again how he thinks this will help excluded pupils to re-enter mainstream schools as soon as possible.

Our Amendment 124A would provide a fallback position whereby pupils could not stay in alternative provision academies for more than six months. If the Minister is going to argue that a time limit of this kind is overly rigid, what alternative safeguards will he propose to stop children being referred early or inappropriately and returned to the mainstream late? How long will they be left to languish in units because it is financially desirable for the institution concerned that they do so?

A different issue is covered by our Amendment 124C. As it stands, the clause includes a Henry VIII provision which gives the Secretary of State a wide-ranging power to amend by order any legislation passed prior to this legislation to achieve the objective of establishing the two new types of academy; that is, 16-19 academies and alternative provision academies. It appears that the Government have not thought out the necessary consequential amendments for introducing 16-19 academies and are relying on a Henry VIII provision to do so. As I am sure noble Lords around the Room will agree, such powers should only ever be used sparingly and in exceptional circumstances. When does the Minister envisage the provision being used and for what purpose?

The amendment, which would remove the Henry VIII provision, is probing. Colleagues tabled a similar amendment in the Commons but, as the Minister there was unable to give a full account of the reasons for the provision, we have tabled it again here. In the Commons, Nick Gibb explained that the power would be used to make provision for which bits of existing legislation would apply to these new models of academy and which would not. He went on to say:

“How the new educational institutions will fit into the existing legal framework is complex”.—[Official Report, Commons, Education Bill Committee, 5/4/11; col. 893.]

In short, it is not yet clear which legislation will apply to these new types of academy, yet we are being asked to pass the Bill regardless.

Nick Gibb also promised to provide more details of the Government’s proposals as the Bill passed through the House. Since then, we have had a number of government amendments tabled and a letter from our own Minister on the subject. However, as his letter confirms, despite the extra information that the Government are now able to provide, the Henry VIII provision remains necessary for the making of further amendments by order. The letter explaining the government amendments is not an explanation of each amendment but more a background note on the Government’s general approach. This is not the right way to go about making and scrutinising legislation.

If the proposals are too complicated for the Government to bring the details before us now, surely there is a real danger that they will be too complicated to be implemented effectively. We should have the complete legislation before us today so that we have the chance to debate and amend it with the thought and diligence that this Committee has already demonstrated.

I am not sure that the Henry VIII provision was ever intended to provide a way out when the Government had not got all their amendments written in time for the passage of the Bill. I therefore hope that noble Lords will support our amendment to delete the Secretary of State’s powers in Clause 53 to this effect.

[Lord Hill of Oareford]

My Lords, we know that at any one time around 40,000 to 70,000 pupils are in some form of alternative provision. We know that there is an iron-clad correlation between those who are excluded, those who attend alternative provision, those who come into the youth justice system and those who go on to offend and reoffend in their adult lives. No one here accepts that it has to be like that. Alternative provision should provide an opportunity to support more young people to turn their lives around. That is why we are taking a number of steps to help to achieve this, including the changes in Clause 49. The Secretary of State has asked the department’s behaviour adviser, Charlie Taylor, to conduct a review to identify what further changes may be needed.

We are keen to give PRUs more of the freedoms that other schools enjoy to allow the professionals who run them to drive their own improvement. This clause will allow PRUs to manage their own budgets in a similar way to mainstream schools. Through regulations we are also giving PRU management committees powers over staffing similar to those that school governing bodies already have. Professionals working in PRUs have welcomed these changes.

In addition to these freedoms, our exclusions trials, in which schools will retain responsibility for excluded pupils, will assess how a new approach to managing exclusions could contribute to improving standards in alternative provision. I hope that this point answers a number of concerns raised by the noble Baroness, Lady Jones of Whitchurch. If schools retain responsibility for the education and outcomes of excluded pupils, PRUs and AP providers will need to be more responsive to demand from schools for high-quality education. That should help to deal with the perception, raised by the noble Baroness, Lady Jones, that there are perverse incentives. We do not want perverse incentives for schools to exclude. We want, as I know she does, the right kind of provision to be made in a way that is suitable for individual children. By allowing for the creation of alternative provision academies and free schools, we also aim to bring the benefits of the academies and free schools programmes to the alternative provision sector.

Turning to Amendment 124A, I agree with the noble Baroness that returning a child to a mainstream school as soon as possible is, in most cases, the best thing for a pupil attending alternative provision. Like her, I do not want alternative provision to be seen as a dumping ground where children are put out of sight and out of mind. We know that some of the best PRUs have a strong focus on reintegration. They constantly monitor and review when it is appropriate for a pupil to be supported to return to mainstream education. We want to see all AP providers, including alternative provision academies and free schools, learning from this kind of good practice. However, in some cases it is possible that a longer period in alternative provision may be appropriate. For example, continuity can be important at key stage 4. A young person whose education has been disrupted or who has become disengaged might benefit from a longer period in AP, especially if they are responding well to this provision. Therefore, we argue, as the noble Baroness predicted, that professionals managing and delivering alternative provision, including in AP academies and free schools, are best placed to make judgments about the best time for a pupil to return to mainstream education. There should not be an arbitrary cut-off date that cannot take account of individual circumstances or that would trump the judgment of professionals who know the needs of pupils in their care.

My noble friend raised points about funding and her desire to make sure that academies and free schools are funded on a comparable basis. As she pointed out, PRUs are centrally funded within the local authority’s dedicated schools grant. When a maintained school converts to academy status, no funding for PRUs is taken from the local authority’s DSG and the academy receives no additional funding for this function. Therefore, maintained schools and academies are on the same footing in this respect. If a pupil is excluded permanently from a maintained school or an academy, the local authority is responsible for securing suitable education for them. Schools—maintained schools and academies—are responsible for securing full-time education for a pupil from the sixth day of a fixed-term exclusion. Some providers of alternative provision also provide early intervention places for pupils with behavioural issues. Local authorities and schools can agree between them how places in PRUs may be made available for pupils who are the responsibility of schools. This would include if and how the authority would charge schools for places, and we would expect them to do that on an equitable basis for all schools. With regard to safeguards on referrals by schools, I set out the position in detail in my letter of 8 September.

On the government amendments, I recognise the concerns that the noble Baroness, Lady Jones, raised about the powers contained in Clause 53. They allow us to make changes to primary and secondary legislation that we think are needed in consequence of the creation of new types of academy under Clause 52. In the light of the concerns expressed in the other place, we have drafted and tabled as many of the amendments to primary legislation as we can, and I have written to try to explain those amendments in detail.

These are complex legislative issues and I concede that we have not resolved them all. We think that we need to take a residual power to amend primary and secondary legislation by order. The exercise of that power is subject to the affirmative procedure, so both Houses of Parliament would have the chance to debate the legislation when an order was laid. There is a precedent for taking this approach—there is a much broader power to make consequential amendments in Section 265 of the previous Government’s Apprenticeships, Skills, Children and Learning Act 2009.

In addition, we have tabled minor amendments to Clause 52 of the Bill. Amendments 123A and 123B amend new Section 1A so that an academy school cannot be an alternative provision academy. Further amendments give the Secretary of State flexibility to apply legislation to this diverse sector.

Overall, as is the case for the noble Baroness, Lady Jones, we are keen to ensure that alternative provision meets the needs of the vulnerable children that it serves. It is important that funding should be on an equitable basis. With some of the assurances that I have given about the changes we are making, the funding and the Government’s intentions, I hope that my noble friend will feel able to withdraw her amendment.

[Lord Elton]

I ask my noble friend for a little footnote to history. In checking the affirmative order provided for in Clause 74(4), I see that, whereas we have only an affirmative procedure for statutory instruments affecting these changes, the Welsh have opted for their equivalent for the negative procedure. I wondered what the history to that was. I do not want an answer now but, if there is anything of interest in it, I should like to know what it is.

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[Baroness Hughes of Stretford]

Before the Minister speaks, perhaps I may ask whether he will address a particular point in his summing up. The point raised by my noble friend is very important in the light of the education system—or lack of an education system, if I may put it like that—that will arise if all the Government’s changes go through. The very important question is: who will be responsible for looking after the very small groups of children who are, by definition, not very visible because they are small in number but are none the less, for all kinds of reasons that noble Lords have identified, very disadvantaged when it comes to taking up opportunities for education? Given that local authorities will not have any locus in local areas if the Government’s objective of the majority of schools being academies and free schools comes to fruition, I should be grateful if, in responding, the Minister could say where responsibility will lie for looking at the achievement, or lack of it, of these small groups of children, working with schools in some way but without the power and leverage to do so. Who will ensure that schools do better by these very small groups of children? In the new world that the Government will take us into where academies are going to be everywhere and will not be focused on disadvantaged children, I cannot see where that responsibility will lie and where the leverage with individual schools to do better by these children will come from.

[Lord Hill of Oareford]

My Lords, it is clear from this debate—as has often been the case—that promoting the highest possible quality of education for the most vulnerable children in society is a subject dear to the heart of the Committee. We have set out in our schools White Paper, published last year, and more recently in our Green Paper on special educational needs and disability, our overall plans on how we want to achieve this,. These include the pupil premium, which will deliver an extra £2.5 billion a year by 2014 to support the education of the most disadvantaged children. My letter to my noble friend Lord Avebury on 25 August set out the overall the statutory framework and range of measures in place to support vulnerable children. In response to the point made by the noble Baroness, Lady Hughes of Stretford, the White Paper was absolutely clear that the local authority retains its responsibilities for vulnerable children, and the Bill does not affect its statutory duties in any way.

However, the nub of this debate is around Gypsy, Roma and Traveller children, who are of particular concern to the noble Baroness, Lady Whitaker, and to my noble friend Lord Avebury. He is absolutely right that Gypsy, Roma and Traveller pupils continue to underachieve significantly relative to their peers and are still much more likely to leave school without completing their formal education. This year, under one-quarter of Gypsy, Roma and Traveller pupils achieved level 4 in English and maths at the end of key stage 2, compared with 73 per cent of all pupils. At key stage 4, just 10.8 per cent of Gypsy, Roma and Traveller pupils achieved five or more good GCSEs, including English and mathematics, compared with about 55 per cent of all pupils. These are stark differences. Gypsy, Roma and Traveller pupils have the worst attendance of any minority ethnic group and there is a marked decline in enrolment between primary and secondary school level, a point that has been made. They have the highest levels of permanent and fixed-term exclusions.

Local authorities have a key role to play in addressing this issue. They are under a statutory duty to ensure that education is available for all children of compulsory school age that is appropriate to their age, ability, aptitudes and any special educational needs they may have. This duty applies regardless of a child’s ethnicity, immigration status, mother tongue or rights of residence in a particular area.

Along with schools and colleges, local authorities have a range of safeguarding duties for vulnerable pupils, as well as duties to establish as far as possible the identities of those children of compulsory school age who are missing education. We are currently revising statutory guidance to clarify how local authorities can best carry out their duties to identify children who are missing education. I say to my noble friend that we expect to strengthen current references to Gypsy, Roma and Traveller pupils in the revised guidance and I should be happy in due course to share that in draft form with him, the noble Baroness, Lady Whitaker, and anyone else who is interested.

It is also the case that Ministers in my department are working, under the chairmanship of the Secretary of State for Communities and Local Government, with a range of government departments to ensure that the range of inequalities faced by the Gypsy, Roma and Traveller communities are properly addressed. That working group expects to publish before the end of the year a report on how the Government will tackle the issue, including a package of measures designed specifically to raise educational aspirations, attainment and attendance. We are grateful to the work carried out by the Gypsy, Roma and Traveller education stakeholder group, chaired by my noble friend Lord Avebury, for the contributions that it has made so far, and I look forward to working with the group over the coming weeks to develop further plans in that area.

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[Lord Lucas]

My Lords, my noble friend Lord Avebury raised the question of virtual schools. Perhaps my mind was drifting as I listened to the Minister’s reply but I did not hear him address that subject. Virtual schools provide an interesting way of dealing with genuine Traveller education and providing them with a consistent relationship with school that is not disrupted every time they move, and we should look to encourage that. Does the Minister have a view on this?

[Lord Hill of Oareford]

We are due to address virtual schools later. I think that my noble friend has an amendment on the subject so we can return to it then. I can respond more fully to my noble friend Lord Avebury at that juncture.

[Baroness Benjamin]

In the Minister’s efforts to address this issue, could he please include parents? Parents are the key to the problem of these children not attending school. They are essential to making this successful. In my experience as a governor and a chair of governors of an academy where we had Gypsy and Roma children, the parents were the stumbling block. If you can get to them, part of this problem will be solved.

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Moved by

[Lord Hill of Oareford]

123A: Clause 52, page 42, line 32, leave out “and”

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The Labour Party has had several chances radically to undermine the independent sector but has never done it, so why do we not move rather more gently to achieve what should be a common objective between me and the Opposition? Given all the progress that those in the Labour Party made in their years in office, I do not think that it is that big a step.

[Lord Hill of Oareford]

My Lords, we discussed back in July how important it is that schools should be able to meet the needs of the most able children, and we talked then about some of the ways in which that could be done.

I shall try to answer some of the questions put to me about my view of the situation. The current position on the number of schools that may select by ability or aptitude strikes me as being one that we have arrived at in a typically English and messy way over many years. Our position is that it should continue as it is. These amendments seek in different ways to use the process of conversion to academy status as a catalyst for either increasing or decreasing the number of selective schools in the state sector, and the Government are opposed to a move in either direction.

We think that academies, with the freedoms and flexibilities that academy status brings, should be well placed to provide stretching and demanding provision for pupils with a particular ability or a general aptitude for learning. Our policy is to ensure that as many schools as possible are able to take up these freedoms, and that includes grammar schools and independent selective schools. However, we have been clear that we do not intend to increase the number of selective schools in the state system. Therefore, we have been clear that when independent schools convert to academy status, we do not think they should be able to bring their selective admission arrangements with them.

My noble friend Lord Lucas’s amendment would allow independent schools to become academies but continue to charge parents fees, though not, I appreciate, those who could not afford it. However, the principle that state-funded school education should be available free of charge to all children is one with which most noble Lords would agree.

We also know, however, that where there are selective schools in the state system they are often highly valued by local parents and are part of the education landscape, and we are equally clear that that state of affairs should continue. That was the position of the previous Government and it is one that we want to continue, so we do not think that those schools should lose their right to select simply because they become academies.

We support the right of state-funded schools that selected by ability prior to the School Standards and Framework Act 1998 to continue to do so, but it is not our intention to increase the number of selective schools. However, existing selective maintained schools and academies may expand—as they were permitted to do under the previous Government—where there is demand, where funding is in place and where such proposals have been agreed locally.

Rather ingloriously, perhaps, I find myself arguing for the status quo. I assure the Committee, however, that we are taking steps to ensure that as many children as possible have access to a good local school and that all those schools, whether they are academies or maintained schools, provide a stretching education for all their pupils. As my noble friend Lady Garden said in a previous debate on these issues, these steps include promoting free schools to increase good places, allowing good schools to expand and taking the limit off the published admissions number, freeing head teachers to take decisions on how to spend that money and slimming down the national curriculum so that schools can design a curriculum that best meets their pupils’ needs.

I know that my noble friend Lord Blackwell believes strongly in the case behind the amendments and that his concern is to try to increase social mobility and achievement for children from the poorest backgrounds so that they have the opportunity to flourish in a way that we would want to see. I am aware of his commitment to social mobility and the sense of moral purpose that he brings to this argument, which is not the preserve of one side in this debate. Saying what I have said about the Government’s position of leaving things as they stand and preserving the status quo will disappoint my noble friend. In spite of that, I hope that for the moment he will feel able to withdraw his amendment.

[Lord Lucas]

My Lords, I am not sure that I understand the moral difference between allowing a grammar school to expand and allowing an independent school to join the state sector as a selective school. Both have the effect of increasing the number of selective places in the UK state system. Why is one good and the other bad?

[Lord Hill of Oareford]

I do not think that it is a point of merit, as it were, and I would not claim that it were. It is a practical point. There are a number of schools in the maintained sector where selection already takes place. We think that it is right that they should be able to become academies and that, as has always been the case, they should be able to expand. The point about independent schools coming into the maintained sector and retaining selective arrangements is that it would increase the number of selective schools in the system. For reasons of practicality rather than anything else, the Government have come to the view that we do not want to increase the number of schools where selection takes place.

[Lord Blackwell]

My Lords, I thank everyone who contributed. As the Minister suggests, I am not entirely happy with his answer. The status quo may be a pragmatic English outcome but it is difficult to defend a situation where in certain parts of the country grammar schools still exist and children from modest-income or low-income families have the opportunity to get some of the best education on offer, but in large parts of the country there are no grammar schools and children from similar backgrounds do not have that opportunity. Despite all the years of effort to ensure that all schools provide the best education for children of high ability, we know that it is very difficult to get that to work. There are many areas where those children are therefore destined not to fulfil their potential because they do not have access to the kind of education that many of our generation had, and which enabled us to move up the social structure. I find that difficult to accept as a pragmatic outcome, although I understand the reasons for it.

The second reason why this disappoints me is that we might be missing just how important it is to the future prosperity of this country that we educate our top-ability children to their full potential. We will be competing in a world where our brain power and skills are among the main factors that will allow us to prosper. To have a large part of our population without access to the best education and the best opportunities to develop is to throw away our chances of national growth and prosperity. This is not a position that will sustain for very long as a messy compromise. I shall reflect on what the Minister has said before we come back to this on Report, and I beg leave to withdraw the amendment.

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Moved by

[Lord Hill of Oareford]

124AA: Clause 52, page 43, line 36, at end insert “or without”