Children and Families Bill

Viscount Eccles Excerpts

Tuesday 2nd July 2013 Lords Chamber

[Viscount Eccles]

My Lords, we have a lot of legislation and I am sure that much that is in the Bill is welcome, but I worry about disengagement—that is to say, the number of people who vote in general elections and other elections. When I look at a Bill, I look for reasons to continue to be worried. The first reason would be if something unexpected came in a Bill, which you would not expect the Government of the day to put forward. The second worry is when a Bill includes aspirations that may be unfulfilled for very good and practical reasons. This disengagement is partly welcome to the public, I regret to say; they are quite interested in becoming disengaged from the political process, which they see as rather inward-looking.

I have one of each of these worries about this Bill. First, on the unexpected element, new Section 3A, in Clause 3, headed “Recruitment, assessment and approval of prospective adopters”—and here I am alongside my noble friend Lady Hamwee—is an authoritarian provision. It gives the Secretary of State power to take certain functions away from local authorities by directions, if the Secretary of State so determines. However, there is no parliamentary procedure for directions, so it is highly draconian. The public knows that local authorities vary widely and will have different opinions about adoption—this is in Part 1 of the Bill—and will come to different conclusions about the best way in which to handle their approach to adoption. I would have thought that it was part of the democratic process that they should be allowed to have different approaches. That, however, is surely in conflict with this Government’s approach to, for example, localism. It is an unexpected clause; I do not welcome it, and it is another reason for disengagement.

Part 5 is my second example. In 2004, in nine sections and one schedule, with a budget that peaked at £3 million, the Children’s Commissioner was created, partly as a response to the United Nations Convention on the Rights of the Child, a child being defined as anybody up to the age of 18. The convention took 10 years to create, from 1979 to 1989, and we ratified it in 1991. It is a convention with very high aspirations; the list of rights is long and, of course, familiar when we think about detriments, abuse and discrimination—all very familiar things. But signatory states should also take,

“all available measures to make sure that children’s rights are respected, protected and fulfilled”,

and that children “reach their potential”. That is a very demanding and large assignment. To date, the Children’s Commissioner has not attempted to tackle the major political issue of that—the joined-up government issue—and could not have done, having never had the budget. So it has been low-key and has looked at rather small but nevertheless significant detriments. A good example would be the exclusions from school affecting about 6,000 children a year. That seems to have been an excellent thing for the Children’s Commissioner to have done, and there has been other excellent and detailed work on detriments.

However, a big report was done at the request of the Secretary of State, the Dunford report, which identified a certain disappointment with the Children’s Commissioner and a gap between what you might have hoped the commissioner had been assigned to do and what the commissioner was actually doing. Now we have a Bill that strengthens the role of the commissioner, and I shall give two examples. In the 2004 Act, the commissioner had a general function,

“of promoting awareness of the views and interests of children in England”.

In the Bill before us, it has become a primary rather than a general function. The Bill states:

“The Children’s Commissioner’s primary function is promoting and protecting the rights of children in England”.

That has been a response, at least in part, to the Joint Committee on Human Rights and is clearly a much more significant function. In the same list of functions, the Children’s Commissioner is now to,

“monitor the implementation in England of the United Nations Convention on the Rights of the Child”—

that is, to monitor but not report on progress. It is a big task to monitor progress against that convention because a great many provisions in that convention involve not only the righting of wrongs but the promoting of positive outcomes.

As a matter of fact, will the Children’s Commissioner be able to do more and, if so, how? Unless Her Majesty’s Government are clear about the accountability that they expect of the Children’s Commissioner and how that accountability will be discharged, we may be raising expectations about what the commissioner can do, and we shall again be disappointed because there will not be the resources to do what the Bill is asking the commissioner to achieve. That will lead to more disengagement by a perhaps small but significant section of the public who have come to think that expectations have been aroused that cannot be fulfilled. That is a dangerous tendency in the way that we approach the details of legislation.

Adoption: Adoption Legislation Committee Reports

Viscount Eccles Excerpts

Thursday 16th May 2013 Lords Chamber

[Viscount Eccles]

My Lords, it is a great privilege to come immediately after our splendid chairman. Age before beauty, of course, as one of the lonely men on the committee, my goodness, it was a pleasure to serve under our chairman and to have such a riveting and exciting time studying a very difficult subject.

I will not follow in any detailed way what has been done, what the law is and what is now proposed. I would like to speculate a little on the relationship between Government and local government, and all the other agencies that are involved in the very complicated matter of care and permanent placements.

Clauses 1 to 3 of the Bill all do things that are entirely relevant to what we studied. There is a new duty, a change in the rules about how you look at matching on grounds of ethnicity, and in Clause 3 there is the headmaster’s stick behind the curtain, which is the possibility of directions. I have to admit to a personal dislike of any clause that has directions in it as there is no parliamentary procedure for appealing against the decision of a Secretary of State.

However, that may be—let us hope that Clause 3 never needs to be used—when thinking about these complex matters we need to remember quite a number of things. A lot of very expert people are involved in these complicated matters: not least, of course, the courts. Views about child psychology and the best interests of the child are a moving target. I was an economist at one time and, as noble Lords will know, no two economists agree. I am not sure that any two child psychiatrists entirely agree either. There is a very wide intellectual background to these matters and of course there are wide differences on the ground.

The demographics of Bradford are not the same as those of north Yorkshire and Hackney is very different from Southall. The divergences of circumstances on the ground—between local authorities and between individual circumstances—are enormous. As the chairman has already said, we found—and the evidence completely supported this—that the behaviour within the existing system is much more important than the probably helpful tweaks that can be given to it in legislation. This issue of the behaviour within the existing system will stay with us. That is why I am very interested in how the Government approach their relationships with local authorities in a matter such as this.

Of course the financial relationship does not help. The fact that local authorities are responsible for such a small part of their own funding does not help at all. I do not want to draw parallels with the governance of the eurozone and the monetary problems that arise from that, but there are parallels. If you split these responsibilities in a quite draconian way, it does not help and it contributes to the public not turning out in very large numbers in local government elections and coming to think of their elected representatives as delegates—a very non-Burkean position. Centralisation makes the question of the postcode lottery more difficult. Dealing with children in care in Kent will remain a very different matter from dealing with children in care in Northumberland or—again—Hackney.

In pursuing these difficult judgments about whether a child should be taken into care, and how quickly a decision should be made about the best possible placement, when to go to court and so on, we need throughout the system—in the department, in local authorities, among elected members and in social services departments—confidence, professional certainty and an acceptance that now and again the judgments that are reached in pursuit of minimising delay will have risks to them, and occasionally will turn out not to be as successful as we would have hoped.

The Government’s initial response to our December and March efforts was pretty general. I have read it carefully and I am not filled with certainty that everybody in the system knows how to handle these matters in the best possible way. I suppose that that is inevitable. Therefore, the question becomes whether the difficulties are properly recognised, and whether there is a dialogue about them and an acceptance that we have to get on with thinking about this very carefully, even if we are somewhat uncertain about the right answer. Otherwise, uncertainty will have to be rationalised out and so will become indifference and certainly delay. Therefore the central issue is how the Government intend, in their relationship with local authorities, to impart a degree of confidence that will lead to a degree of certainty and a willingness to make decisions in a timely fashion. That goes right through all the people involved in the system, including the adoption agencies and all the other people who contribute to the very important wish of all of us to see a greater number of successful adoptions.

The challenge is to ensure that when John Humphrys gets into a dialogue on a problem that has arisen—and problems will arise—everybody in the system, when they are interviewed, can say, “We thought this through together, we are all in it together and not one of us is trying to make sure that somebody else carries the blame”.

Adoption Agencies (Panel and Consequential Amendments) Regulations 2012

Viscount Eccles Excerpts

Wednesday 25th July 2012 Grand Committee

[Baroness Howarth of Breckland]

My Lords, I do not intend to repeat the very clear, coherent points made by the noble and learned Baroness, Lady Butler-Sloss, but I shall add to them. I am delighted that this debate is being held because the committee was extremely concerned when it saw the instrument. It is important to make the point that if the Government ask a Select Committee to undertake a task—in this instance to look at adoption—the committee should be kept well informed and other decisions should not be made without cognisance of the evidence that it is hearing and has heard. If it is not, we might as well all go home, rather than continue to work hard on the issues. I know that the chair is unable to say that but I think I can.

I shall say a little about some of the work around the family justice review, which was extremely complex and fraught. I know that because while it was being undertaken I was chair of CAFCASS, which was central to the disputes and discussions about delays and whether systems should be changed. David Norgrove did not say a great deal about panels but they are what I call low-hanging fruit. In looking at structures and systems, panels are one layer that you might be able to take out. You would then have removed a level of what looks like bureaucracy to move things forward. However, David Norgrove found an extreme level of mistrust between all the partners. I am sure the noble Lord, Lord Hill, spoke to him during that period. He was almost obsessed by the relationships between judges, social workers, CAFCASS and the other stakeholders in dealing with the issue. Therefore, finding good recommendations was important to him, and there is much in his report that takes us forward.

It is clear that, at present, many children spend far too long in care, moving in and out of it before decisions are made, and that we have to find ways of speeding this up. Views about adoption panels and whether they help or hinder the process are mixed. There is no systematic evidence. There has not been any decent inquiry into the working of panels. Again, I will not repeat what the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have said about the evidence that we have heard from other parties, but people have anecdotal evidence that is as strong as any that might come from a review. I think that that would be useful. Personally, I am agnostic about panels and I suspect, as CAFCASS said, that they could be reviewed; that they come far too late in the process; and that the important thing is that the multi-professional information is gathered appropriately together to properly inform the decision. I do not think that the way in which that is processed has been properly looked at in relation to the decision to remove panels. Those are the things that would make a difference.

One of the other things that we know—I shall repeat this—is that when information gets to the judges, if they do not believe that they have enough expert information, they will commission experts to give it to them. A piece of work we have done recently is that of reducing the number of experts in court, particularly in the family courts, in order to reduce delay and speed up good quality decision making. It is quite clear that social workers and CAFCASS officers have a high level of expertise, but we also know that local authorities vary hugely one from another. What is the Minister going to do to make sure that when information goes to court, it does not add to delay because the judge is looking for the right information which he or she does not think has been quality tested? At the moment, they have the assurance that it has gone through a number of experts in a panel. It may be that there is an answer to this; I am looking for it.

I am also extremely concerned about the amount of work that falls on the shoulders of both decision-makers and independent reviewing officers. We have seen examples where the level of caseloads—certainly for independent reviewing officers and, I am sure, people up and down the country who have to make these decisions—is quite inappropriate in terms of being able to make the quality of decision that is needed. If Tim Loughton, when sitting in on panels, thought that they had a lot of material to digest, imagine what it would like for the decision-makers if they have to digest the material for themselves without having an expert opinion across a range of issues. They will be looking at psychiatric problems in some children who are going to be placed, or children with learning difficulties. We know that children who are being placed for adoption and coming through care are not straightforward babies with no difficulties. The panels help to assess that information before it is given to the judge in relation to the placement.

However keen you are on adoption, it is necessary to remember the balance between birth families and prospective adoptive families. There is a danger that, if you do not have good information on their families, which social workers in local authorities have to assess, there will be miscarriages of justice. That is of deep concern to me.

I would ask the Minister to answer the questions from the NSPCC which were repeated by the noble and learned Baroness, Lady Butler-Sloss. It is extremely concerned about the mix of practice across the country. I also ask him to tell me how he, being responsible in central government, can ensure that local government, with all the decentralisation, do not overwhelm those who have to make these decisions so that quality decisions continue to be made. I will rest my arguments there.

[Viscount Eccles]

My Lords, I will follow the same theme but I hope that I will not be repetitive. A great deal is going on in the area of adoption, whether it is the Norgrove review, the March action plan or the existence of the Select Committee on which I am very pleased to serve.

I want to draw attention to paragraph 78, which records the decision and has already been quoted by the chairman, the noble and learned Baroness, Lady Butler-Sloss. It ends with the sentence she has already quoted:

“We believe that the court’s detailed scrutiny of these cases should be sufficient”.

It does not say “is sufficient” or “is known to be sufficient”: it says “should be sufficient”. It is quite important that that sentence is conditioned. Indeed, the Explanatory Memorandum should have quoted paragraph 78 in full and not selected the middle sentence. In my view, the Explanatory Memorandum to this instrument has a tendency to short-cut.

Let us take the words “should be” and look at what this enormously comprehensive report, with more than 100 recommendations, said on the relationship between courts and local authorities in paragraphs 3.45 and 3.46. It is worth reading this into the record:

“Our recommendations are intended to restore the respective responsibilities of courts and local authorities”.

If I may interpose, the word “restore” is a quite strong use of language. It implies that something is not as it used to be, even if not quite that it has broken down. The report continues:

“But to change the law does not tackle the root cause of the difficulties. This stems we believe from a deep-rooted distrust of local authorities … This in turn fuels dissatisfaction on the part of local authorities with the courts, further damaging relationships.”

Paragraph 3.46 states:

“The result is that the relationship between local authorities and courts can verge on the dysfunctional. For the system to work better it is not acceptable for each group to sit on the sidelines and criticise the other.”

It may be right to have taken away one of the responsibilities of panels. It could be right to remove the second opinion which may be provided very helpfully either to local authorities or to courts which might need it. It may be right to make them face up to the need to work successfully together. Perhaps I may be allowed to say that that is the Norgrove motivation. But it seems very risky.

We know that the performance of local authorities is uneven, for some quite good reasons such as the size of the authority or the ethnic mix in the authority. Political persuasion may have entered into it at some stage. We also know that the performance of the courts is very uneven. Our committee has not yet received as much evidence on that as we will have done when we come back in the autumn. Indeed, the government literature—the action plan in March or the Explanatory Memorandum—is quite cautious about criticising the courts. It is perhaps overcautious in the balance between its opinions on local authorities and the courts.

However, Norgrove is very clear. I think that he is saying that the front-line troops—the local authorities, the IROs and the social workers, and the courts with the judges—need to be in the front line. They need to get together and to perform without being intervened upon by outside experts and interests, which may be right as a long-term objective. Certainly, one would hope to find relationships between local authorities and courts in general becoming much better than they apparently are if this review is to be believed—and I see no reason to doubt it.

However, the Government will have to watch what happens very carefully, because it is not self-evident that removing this second opinion, this ability to put things together to the benefit of both the local authority and the court, will enhance the process of adoption. Delay has been mentioned as a reason. The evidence for it does not stand up. The evidence for duplication is dependent on there being confidence that the ability to perform exists both in the local authorities and the courts. If it does not, the duplication argument does not stand up either.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the noble Baroness for putting down this Motion today. She has enormous expertise in this area and, as I had anticipated, it has been very instructive listening to her speak not only about her past experience but about the work of the scrutiny committee. It has been interesting also to hear the details of the ongoing work of that committee that other noble Lords have been able to share.

I hope that noble Lords will forgive me if other people in the Room have more expertise in this area than me; I see myself as being on a learning curve. However, I believe that we have so far failed to get the balance right between scrutiny and decision-making in adoption procedure, leading to unacceptable delays in the processing of applications for children to be adopted. As has been said today, this matter has been debated on many occasions over many years. It is also addressed in detail in the Family Justice Review report. As we have heard, the amended regulations before us today implement one small change in a much bigger set of recommendations contained in that report.

Having looked at those recommendations, we are persuaded that a one-stage process of scrutiny by either an adoption panel or the courts through a placement order should be sufficient to protect the interests of children and parents, with the emphasis being clearly on the primary interests of the child. However, the questions posed by the noble and learned Baroness, Lady Butler-Sloss, chime with several of our concerns.

The Explanatory Notes accompanying the regulations make it clear that this change is part of a larger package of legislative reform affecting adoption practices and that the Government will consult on these wider proposed changes. We look forward to participating in the consultation, and I would be grateful if the Minister could take this opportunity to update us on the timetable and scope of the planned consultation. Is it the intention, for example, that the outstanding recommendations from the Family Justice Review relating to adoption and the conclusions from the adoption scrutiny committee will be incorporated in the consultation?

This leads to the fundamental question, which the noble Baroness raised, of the timing of the proposals. We wonder at the wisdom of introducing this change to such an important piece of public policy on a seemingly piecemeal basis. Perhaps the Minister could clarify why the changes are being introduced now, when the scrutiny committee’s work is ongoing and when more radical issues relating to the role of local authorities and adoption panels are on the cards. The noble Baroness, Lady Howarth, asked powerfully why the scrutiny committee’s work was commissioned if it was to be pre-empted in this way as it now appears to be.

Given the sensitivities involved in dealing with adoption issues and the need to ensure that safeguarding the interests of the child is built into everything that we do, can the Minister confirm whether the changes, if introduced, will be monitored and reassessed over time? It is vital to ensure that child protection at this fundamental level is not being compromised. I look forward to hearing what the Minister has to say.

Education Bill

Viscount Eccles Excerpts

Wednesday 6th July 2011 Grand Committee

[Lord Elton]

My Lords, one disadvantage of the Grand Committee system is that, if one has an interest in the Chamber, it requires one to be in two places at the same time. I apologise for missing the introduction to the amendment as I needed to be in the Chamber.

The noble Baroness, Lady Hughes, has brought me to my feet. I was very struck by what she said about the shortage of training in behaviour management. In the 1980s, I chaired an inquiry into discipline in schools. One day, when I taught in an education college, I discovered I had lost the attention of my otherwise normally engaged adult trainee teachers, so I inquired why that was. They said that it was because they were having their first teaching practice the following week and that was all they could think about. I said, “It is not too difficult; you know three times as much as the best child about your subject and all you have to do is keep reasonable order and carry on”. They said, “Yes, but—”. I said, “Haven’t you been told anything about keeping reasonable order?”. “No”, they said, “not a word”.

I carried that with me into the inquiry and we inquired of all the training colleges in the country whether they taught behaviour management. They all said yes—and, after a comma, added, “as a cross-disciplinary subject”. I thought, “I know what that means”. We wrote to all the students who had been to the colleges in recent years and we had more than 1,000 replies. We discovered that only one college had actually successfully tackled the subject on its own and none of the others had taught it at all. It is very important because you can have someone with everything that the children need to know in his head but no means of getting it to them because he cannot get them to sit down and stop talking. It is as simple as that. It takes training, time and confidence. I could go on at great length about the different elements. Perhaps there is a means of instilling in the department and the Minister the necessity of not recognising training until it includes training in the management of behaviour in the classroom, because otherwise it will be inadequate.

Another matter I will raise concerns the second leg of the amendment in the name of the noble Earl, Lord Listowel. I see the impracticalities of it; the idea of having four consecutive hours is well beyond the reach of most places. Apart from anything else, who has a lesson for four hours? Children disperse and go to different lessons. The timetabling would be terrible.

I will address another question. Having heard the noble Baroness, Lady Hughes, I wonder whether my experience of 20 years ago is not still in date. We were very much aware of a phenomenon called “classroom isolation”. Teachers went in, shut the door and taught. They were alone with their problems, which they did not like to share because their colleagues would think that they were not succeeding. This provision would open the classroom door regularly. That may have changed, in which case I give three large cheers—but if it has not, something along the lines of the noble Lord’s amendment would be welcome.

[Viscount Eccles]

My Lords, this might be a good opportunity to follow my noble friend, whom I think I first met 60 years ago. We are discussing best practice and experience, and it seems to me that the three amendments represent a lot of experience and best practice. However, I would be very doubtful as to whether any of the matters in the three amendments should be statutory or matters for the Secretary of State. If these matters cannot be dealt with within the education system itself, I do not think that they ever will be.

[Baroness Massey of Darwen]

My Lords, perhaps I may return to the amendment tabled by the noble Lord, Lord Lexden, who has called himself a novice but was extremely cogent. The amendment refers to the,

“duty to promote academic partnership”.

I wonder whether that is what the noble Lord really means. I know that there are partnerships of all kinds between schools. He mentioned some in music and sport. I am slightly worried about the word “academic”. I am not challenging him but I want to highlight it.

Education Bill

Viscount Eccles Excerpts

Thursday 30th June 2011 Grand Committee

[Baroness Brinton]

My Lords, I want to argue against the comments of the noble Lord, Lord Sutherland. One of the benefits of having someone else to act as a witness to a search is that there is a cooling-off period in a crisis when things could calm down; immediate intervention might well escalate the crisis.

My second point, which has not been made so far on this group of amendments, is that there has rightly been much concern about opposite-sex searching. Frankly, there are also issues about same-sex searching because, sadly, there are allegations against staff of homosexual acts, and there might be some incidents, again sadly, of same-sex abuse. I know that is very rare, but that is why we need to have a witness. You can then start to ensure that, first, the situation is de-escalated if it is rising rapidly, and, secondly, with a witness you can balance that with the safeguard of both the child and the member of staff.

[Viscount Eccles]

My Lords, not for the first time I find myself welcoming the comments of the noble Lord, Lord Sutherland. I might have this wrong, but the provision seems to be designed entirely to deal with a crisis. Of course, if we think there will never be a crisis, we do not need this section. I say that because paragraph (a) of new Section 6A in Clause 2(3)(c) states:

“the person carrying out the search reasonably believes that there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency”.

That must mean that the person who thinks they have to search is faced with someone in the room making an absolutely open threat, either to the person who might do the searching or to someone else in the room.

Paragraph (b) of new Section 6A says that the condition is satisfied if,

“in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex as P or in the presence of another member of staff”.

I feel strongly that that is meant entirely as a back-up power to deal with a crisis that could not have been foreseen. In considering whether this provision should be in the Bill, that is how we should look at it. We should in no way confuse it with the wider issue of the powers to search.

Education Bill

Viscount Eccles Excerpts

Tuesday 28th June 2011 Grand Committee

[Lord Knight of Weymouth]

My Lords, I support my noble friend Lady Massey and others who have described this as a bit of a can of worms. With all respect to the Minister and his colleagues, I know how this comes about: you hear of difficult incidents in individual schools, you want to satisfy the perception in certain parts of the media that behaviour in schools is dreadful and you want to be seen to be doing something about it, so you move to legislation. As we have discussed, though, once we start to explore the issue we then see that there is a need for training, be it enforced through guidance or through legislation, and we soon arrive at the notion that there needs to be whole-school training. Once you get into training the whole school workforce, if they are going to use these powers, I imagine that many head teachers looking at their budgets would say, “Well, I probably won’t use these powers because I can’t afford the training of the whole school”, and then the legislation would become largely redundant. There are many other cans of worms that could wriggle out, which we could explore if we had time.

What will the powers do that the current powers do not? Paragraph 61 of the Explanatory Notes explains that the current powers under Section 550ZA of the Education Act 1996 allow other prohibited items to be searched for as specified in regulations. I would be interested to hear what Clause 2 does to extend the list of prohibited items from what would have been prohibited previously under regulations that the Government could have deployed using current powers.

I say in passing that it is easy in this debate to write off mobile phones as things that should be confiscated. However, mobile phones in classrooms can be used as very powerful computing devices. I would not want this debate to pass without standing up for the use of mobile phones as handheld computing devices that need to be managed. When I was at school, the pen was abused by many pupils who wrote nasty things about teachers and other pupils, yet nobody suggested that we ban the pen, because it was an important learning tool. Some electronic devices are also useful learning tools in the current century.

My final question to the Minister is: how will an appeals process work if the powers are used by a school? Will the process be governed by the school rules, with pupils and parents being able to go to the head teacher and then, as a final recourse, to the governing body? Many schools will be academies, so there will be no referral to a local authority if parents are dissatisfied with what the governors say. Will there be an appeal to the Secretary of State, or will the parents have to go to court, if they have the resources to do so? It would be helpful to understand how the appeals process will work.

[Viscount Eccles]

My Lords, I have listened very carefully and tried to think, if I was the head teacher of a school, how I would approach the problem and what I would say to my governors and to the political system. Clearly it is a deeply cultural issue which carries an enormous content of expectations. The idea of the noble Lord, Lord Sutherland, needs to be followed up.

I would try to turn this into a routine exercise—something that is as emotionally and culturally unloaded as it can be. We all go through a form of search whenever we go to an airport. I do not think that we like it. In fact, I remember one or two famous occasions when people did not behave very well when they were crossing borders or going through airports. I have knocked about a lot in the third world, where things can feel very undignified. I remember trying to get into Brazil from Paraguay. The queue was held up for a very long time while all sorts of unpleasant things were suggested by the people at the border. I think they were looking for money, which of course was a different circumstance.

Perhaps we should turn our minds away from bad expectations. Do we not talk too much about disadvantage and vulnerability? Are we really sure that many of the circumstances in which people bring the wrong thing to school are the result of disadvantage or vulnerability? It could be the result of many other things. I urge the Committee to urge the Minister to think hard about the best advice that could be given to head teachers and governors about how to cope with the particular circumstances in which they find their school, and how they could turn the question of controlling the arrival of unsuitable things in their school into a routine matter, so that the measure referred to by the noble Lord, Lord Sutherland, which is terribly important, can be confined to emergencies. I suppose that as a head teacher, one would hope to find no emergencies and no searches resulting from emergencies.

Education Bill

Viscount Eccles Excerpts

Tuesday 14th June 2011 Lords Chamber

[Viscount Eccles]

My Lords, in his splendid maiden speech my noble friend Lord Edmiston referred to the expertise of this House. Of course, we are all educational experts because we have all been to school, but I go back to the point made by the right reverend Prelate the Bishop of Oxford when he looked for an overall educational vision. I am not very good at visions; they always seem to appear rather mistily in the distance and then to fade away.

Where do we begin with education? There are three providers. As the noble Lord, Lord Northbourne, said, parents come into the picture first—the concept of parents needs to be expanded to include family or whoever the child lives with when very young—then the teachers and the children join in. Teachers and parents look at each other and, one hopes, have a dialogue. They ask themselves the question, “What have we got here?”. The child, who comes in somewhat later but has a very real presence pretty early on, tends to respond, “Never mind that, who am I?”. These are complicated questions involving many variables. There are no statistical ways of measuring these variables. Indeed, the mathematical and statistical answers tend to become almost insulting to the individuals concerned because education is not something that is put into people—the Latin word for education means to draw out. What the providers and the child who becomes a young person and then a young adult are trying to do is to find out somebody’s talents, interests and shortcomings—that is, the mixture which makes up an individual. Each person is on an individual journey; some take very much longer than others to complete that journey. Indeed, it is a commonplace that education never ceases.

I give two examples to illustrate some of the complexities. I have told the House before that for some time I was allegedly in charge of a steel foundry. A crane driver came down for his break. I happened to be there and asked him, “How are you going on, Charlie?”. He replied, “Not too badly, but I’ve had some rather strange news. The headmaster of my son’s school has rung me up and told me that he’s been offered a place at a university”. I said, “You must be very pleased”. He said, “I’m not so sure. It couldn’t be me, you see, but I suppose it might have been the milkman”. He was, of course, delighted.

My next example is a sort of parent-child illustration. I wrote to my father who twice held the post of Secretary of State for Education. I think that on the first occasion he had a slightly different title, but that was what he was doing. It was at the time of Suez and I said that I thought we would probably find that that did not work. He wrote back in a letter which started, “The trouble with you is that you read the Guardian; you should read the Times”. That is an example of a journey during which a dialogue about education was going on between the parent and the child.

Governments are not comfortable with these messy, complicated individual journeys; they cannot cope with them. The Bill is very welcome because, in part at least, it recognises that. It is saying that this is a matter for parents, family, teachers, children and pupils; that is where the outcomes will be determined. It is true that the outcome will be determined in every case by the players in the front line and not by the Government or local government. Indeed, Government, local government and all the other agencies are only enabling mechanisms. The game is played and won or lost or comes out as a draw by the parents/family and the teachers. I would prefer us to talk about teachers rather than schools—if your Lordships think back, they will remember individual teachers as well as schools—and about the children or young persons themselves. As we go into the detail of the Bill, I hope that we do not forget that fundamental fact.

Academies Bill [HL]

Viscount Eccles Excerpts

Wednesday 7th July 2010 Lords Chamber

[Lord Lucas]

My Lords, when it comes to this amendment, I stand four-square beside my noble friend Lady Walmsley. I congratulate the noble Baronesses opposite on all the effort that they have put into this subject. One of the most important things about schools is that we should try to produce young people who are well informed and resilient and go out into life able to deal with it, which was certainly not the case in my education. Indeed, a recent survey from the University of Oxford showed that 85 per cent of its graduates were frightened of getting a job. There is a good deal to do in schools in one way or another.

However, I entirely agree with my noble friend that this is the wrong amendment in the wrong place. It is too restrictive and too simple and applies only to academies. We need this to be part of the curriculum review that my noble friend has promised. That is the pressure point to which we ought to be applying ourselves.

I am also concerned because the phrase PSHE associates itself in my mind—and perhaps my noble friend will educate me—with a rather clunky, didactic, old-fashioned way in which to approach these things. That is at a time when, if one goes around schools, which I do a good deal for the Good Schools Guide, one sees a lot of new, interesting and innovative approaches to this aspect of schooling, which I would not want to close out by including it in a process-based curriculum rather than requirements for what the children should be like when they leave school. It is one of the faults of the curriculum that we have at the moment that things such as citizenship have to be added as extra subjects when really they should be there as outcomes and it is up to the school to decide how they are delivered. I cite in particular the work on positive psychology and well-being that started with Wellington College and has spread widely from there. Also, I attended a presentation for schools, part of which was a presentation by a primary school in the East End on its use of psychology lessons. It taught psychology as a separate subject and with immense good effects. As the noble Baroness said, once you get it right, it spreads though the school, from attitude to education generally and to behaviour. I do not want to see this subject fossilised in a set of requirements, as the curriculum is set out at the moment, certainly not without the sort of discussion and understanding of the subtleties that would occur through a proper participation in the curriculum review.

[Viscount Eccles]

My Lords, I start by saying that I was nothing like so fortunate behind the bicycle sheds as the noble Baroness, Lady Gould.

I have been waiting to hear what the House thinks the reaction of the teachers would be to making this a statutory requirement at this particular moment. There was a report done by the Merits Committee and the noble Lord, Lord Knight, gave the committee his evidence on two occasions, written and spoken. The memorandum submitted by the Association of Teachers and Lecturers said:

“In the recent past, too many professional judgements about curriculum, assessment and pedagogy have been removed from teachers and placed in the hands of ministers, government departments and agencies”.

It went on to say that this,

“shows a lack of trust in the profession and a denial of complexity”.

The whole House is agreed with the objectives of the noble Baronesses opposite and the objectives of my noble friend Lady Walmsley. The teaching profession is in agreement with those objectives as well. The question is how you best get those objectives achieved; in my submission, that will not happen by including a statutory requirement in this Bill.

[Baroness Morgan of Drefelin]

My Lords, it is with great pleasure that I rise to support my noble friends Lady Massey and Lady Gould. I was also particularly moved by the remarks of the noble Baroness, Lady Howarth. It is extremely important that, if my noble friend chooses not to divide—and I do not know what her choice will be—we hear from the Minister what practical steps the Government will take on this key agenda. I was interested to hear again from the noble Baroness, Lady Walmsley, her exultation about the work of the previous Government around the proposals contained in the Children, Schools and Families Bill, which were removed on the specific request of the Conservative Opposition, as the noble Lord is aware. Before the election we had a set of principles and proposals that commanded the support of a significant part of the coalition Government and of a great number of noble Lords across the House.

My noble friend Lady Massey came forward with a very thoughtful proposal; she did not just reproduce what was in the Children, Schools and Families Bill, which the Government can do at any time just by going back to the filing system or doing a cut and paste. Here we have a practical step forward for going forward in this Bill. That is why I should like to have the opportunity to support the amendment. I see no reason why we should delay. Noble Lords have raised concerns about the numbers of teachers qualified to teach PSHE, but we have been reassured on that. There have been concerns about whether we are talking about teaching sex education to children inappropriately in primary schools. In all the debates we have had there have been umpteen reassurances about age-appropriateness. I do not think that this should be a party-political issue. It is very much a House of Lords issue, as it is very much something that the House of Lords has debated many times. We came up with a very constructive way forward only a few months ago. There is no good reason for us to delay any further.

If the Government want to bring forward any tidying-up amendments at Third Reading, that is very much in their gift. It can be done. We are all behind the principles that the noble Baroness, Lady Walmsley, described, which were in the previous Bill. They are great—yes, we could see those come forward at Third Reading. I see no reason to delay, as this is about common sense and supporting the professionals. I am delighted that they gave my noble friend Lord Knight a standing ovation when he addressed the professionals in this field. We can get on with this. It is a regret of mine that it took us, in a Labour Government, as long as it did to consult and come to consensus and to the settlement that we did. It took us a while, so let us not take any longer.

Academies Bill [HL]

Viscount Eccles Excerpts

Monday 28th June 2010 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I have two amendments that address many of the points made by my noble friend Lord Phillips, although they approach them from a different angle. Given the lateness of the hour, it might be for the convenience of the Committee if I speak to them now so that the Minister can deal with the various arguments. I apologise for not having participated in the debates before, although I have read in particular the Second Reading debate carefully. As we are discussing charitable matters, I should declare my interests as president of the National Council of Voluntary Organisations and chairman of the Armed Forces Charities Advisory Company, inelegantly known as AFCAC.

The most important of my amendments is Amendment 164. It would remove the words “is a charity” and replace them with the phrase,

“may be deemed to be an exempt charity if and in so far as it is a charity”.

I am not quite as concerned as my noble friend Lord Phillips about the use of exempt status, but I am concerned about the way in which the charitable status and arrangements are being drawn in this Bill. I do not oppose the principles of the Bill; indeed, I support them, because I am for aspiration in our education system and it seems to me that this Bill will lead to higher aspirations. However, Clause 8 causes me some concern. This is a probing amendment, about which I am much looking forward to hearing from my noble friend on the Front Bench.

I shall take a moment to say a word about the background. The Charities Act 2006, which was a Lords starter like the Academies Bill, went through a high degree of scrutiny, not only pre-legislative scrutiny but also because the parliamentary examination took place twice over. We had reached the end of the process when we came to the wash-up before the 2005 election, when our progress resembled the childhood game of snakes and ladders—we had reached square 99 but then stepped on a very long snake and went all the way back down to square two, from where we had to start again. I had the privilege of serving my party on the Front Bench and, as my noble friend Lord Phillips said, we spent many happy hours with the noble Lord, Lord Bassam of Brighton, and others dealing with the issues in that Bill. The result of what some might say was an inordinately long gestation was that we had a huge amount of input from the sector and the wider public. I must say that the then Labour Government were prepared to listen and I think that we made some sensible changes. I think that the sector believes that a delicate balance that reconciles the many strongly held views about the charitable sector and its position in our society was achieved. This Bill, if unamended, will damage that delicate balance.

What is the balance? First, the Bill reintroduces presumption by the back door. The Charitable Uses Act 1601 stated that there was a presumption of charitable status for three purposes: the relief of poverty, the advancement of religion and, of relevance to us tonight, the advancement of education. Therefore, if you checked into the Charity Commission with the Hodgson educational trust, it would be bound to give you charitable status. However, it became perfectly clear in recent years that that no longer held water in our society and that we therefore needed to find a way in which all applicants for charitable status, with the benefits described by my noble friend Lord Phillips, had to show that they afforded an appropriate level of benefit to the public to offset the tax and other benefits that they received. So we achieved a level playing field.

This public benefit test was to be achieved by the Charity Commission and we wanted to make sure that the commission was insulated from political pressure from all sides of the House. Therefore, written into Clause 6 of the Charities Bill were words to the effect that the Charity Commission should not be subject to the direction of any government agency or any Minister of the Crown. We had a level playing field with an independent regulator.

The Bill as drafted blows a hole in this because Clause 8(1) states:

“A qualifying Academy proprietor is a charity”.

That restores presumption. There is no mention of a public benefit test; it just states that it is a charity. Therefore, we no longer have a level playing field. Above all, we are introducing an unlevel playing field in an area of great controversy. It was on education that some of the most difficult discussions and debates in this House took place because of the existence of fee-paying schools that are charities. Indeed, several schools have had their charitable status called into question or, in certain instances, revoked.

The second worry is that this undermines the authority of the Charity Commission and damages its independence. We went to great lengths to make sure that it was above suspicion; if it could be bypassed at any time, that would be a great mistake. I have absolutely no doubt that these academies will be able to show that they can pass the benefit test, so why damage the balance that we created in the 2006 Act?

Most important, we are creating a dangerous precedent. A future Government—not this Government or any Government that I am thinking of—could use this ability to say that something is going to be pushed through on the ministerial fiat. It would be a great mistake to allow that kind of precedent to be created in the Bill.

On the implications of exempt charity status, I entirely share the views of my noble friend Lord Phillips. We need to know what the regulatory body will be. The sly, shy hint in paragraph 29 of the Explanatory Notes does not go far enough. We need to know whether the regulator will have a public benefit test and, if so, whether it will be the same as that of the Charity Commission. It is essential that it should be so.

When my noble friend replies, will he say whether he thinks that he has the power to enforce this? Section 13(2) of the 2006 Act states:

“The body or Minister must do all that it or he reasonably can to meet the compliance objective in relation to the charity”.

However, as far as the Charity Commission is concerned, that is only one of five objectives. It has a public confidence objective, a public benefit objective, the compliance objective to which I have just referred, a charitable sources objective and an accountability objective. We need to know whether those other objectives will be met in this case. As my noble friend has said, we need to know what will happen to existing charities and whether we will have a further unevenness in the playing field.

I do not expect to reach finalisation on this tonight but I seek from my noble friend reassurances on two or three central points: first, that the Government will not reintroduce presumption by the back door; secondly, that they respect the independence of the Charity Commission and its expertise; and, thirdly, that they see the great dangers of the precedent that we will be creating.

[Viscount Eccles]

My Lords, I will not make any long arguments. My noble friend Lord Phillips has referred to museums and to Kew, but I think that, although the secondary legislation to appoint a charitable regulator other than the Charity Commission is in draft, it has not yet been triggered. I think that the matter is still in limbo.

[Lord Phillips of Sudbury]

In fact, it came in at the beginning of this month.

--- Later in debate ---

[Viscount Eccles]

I stand corrected. That secondary legislation was drafted by the previous Government and I must confess that I had some hope that the coalition Government would see that there had been an error and not implement it. An extremely strong argument has to be made in order to appoint any charitable regulator other than the Charity Commission. In default of that argument, the Charity Commission should be the charitable regulator.

[Baroness Morgan of Drefelin]

My Lords, I have got slightly confused about the groupings. I think that I have a clause stand part in here. Anyway, I shall make a brief contribution to this debate.

The contribution from the noble Lord, Lord Phillips, on the question of charitable status and the automatic exemption proposed in the Bill was so key that I am not sure that I want to add much more. When I read the Bill, it gave me great cause for concern. I sat through much of the proceedings on the Charities Bill as a new Peer and learnt how thoroughly this House can interrogate a piece of legislation. I came to understand the importance of presumption and the role of the regulator in safeguarding the values that the charity brand, if that is the right phrase, has for members of the public. This is a fundamental step to take.

The Department for Children, Schools and Families considered this measure for its last Bill but rejected it on the basis of advice that we received, so we were listening carefully. There were lots of good reasons why academies might want to become charities, but in the end there were not enough good reasons to suggest that all the careful deliberation that this House and the other place went through to achieve that settlement should be thrown out. To carry on the Monty Python link, I would say that this clause is a dead parrot, as it really is dead as a concept. I would be interested to hear the Minister’s response, but I have heard some convincing arguments today for why Clause 8 should not remain in the Bill.