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Further Education and Training Bill [Lords]

Volume 464: debated on Thursday 11 October 2007

Lords message considered.

Lords Reasons: Nos. 1A, 2A, 4A, 6A, 7A and 8A.

I beg to move, That this House does not insist on Commons amendments Nos. 1, 2, 4, 6, 7 and 8 to which the Lords have disagreed, but proposes amendments (a) to (f) to the Bill in lieu of the Commons amendments.

In July, the House sent the Bill to another place with amendments, following a period of intense scrutiny. The amendments, which addressed our intention to intervene in unsatisfactory further education provision, were disagreed to in the other place, which gave as its reasons:

“Because the proposed delegations of powers of intervention are inappropriate”.

The Government do not agree with that statement. We believe that there needs to be clarity and certainty about the proposed powers of intervention and, further, that in England they should be exercised by the Learning and Skills Council, as the funding and commissioning body for further education there. In Wales, the proposed powers of intervention would be exercised by Welsh Ministers; there is no equivalent of the LSC in Wales, and Welsh Ministers are responsible for the planning and funding of further education in Wales.

However, we reflected on the valuable debates, and particularly the contributions of those who urged the need to make sure that there are appropriate checks, particularly in the system we are proposing for England. In that context, I would like to express my appreciation of the constructive work that the hon. Member for South Holland and The Deepings (Mr. Hayes) has done with us to prepare a robust solution for the sector. I held discussions on the amendments, and he influenced them; that offers a model of how Government and Opposition can, and should, work together where we can. I also pay tribute to the hon. Member for Brent, East (Sarah Teather), who has played a constructive role as well.

In response to concerns raised by the hon. Member for South Holland and The Deepings and others, we have already made significant changes to the provision on interventions, including requiring the LSC and Welsh Ministers to consult on their proposed statements about how they will exercise their statutory intervention powers, and in the case of the LSC to get the statement approved by the Secretary of State. Statements approved by the Secretary of State will be laid before each House; Welsh Ministers must lay statements of their policy before the National Assembly for Wales. We have also limited the power in relation to dismissal of senior post holders so that it is now to direct a governing body to initiate dismissal proceedings, and we have made a number of non-statutory changes to address concerns that have been raised.

It is refreshing that a Minister in this Government has the grace to concede that he has accepted a Conservative approach, and we are grateful to him for that. However, I seek reassurance on a specific point: if a member of staff is dismissed as a result of a process initiated by the LSC, is there in his view clarity on the legal position if they were to sue for unfair dismissal?

Yes, I believe that that clarity does exist. One of the bodies that has been particularly pressing us on this issue is the Association of Colleges, which represents colleges throughout the country. The last time we discussed the Bill, it was satisfied with the changes we had made.

However, the amendments now proposed by the Government go further still. They propose that the Bill require the LSC to give notice to the Secretary of State before exercising any of the statutory intervention powers. It would not be appropriate to specify in statute which Secretary of State the LSC should notify, but it is likely that in most circumstances that notice would be given to the Secretary of State for Innovation, Universities and Skills and, where the education or training of 16 to 19 year olds was affected, the notice would be copied to the Secretary of State for Children, Schools and Families.

At that point, if the Secretary of State considered that what the LSC was proposing to do was inappropriate, he would be able to take action using, as appropriate, his powers under either proposed section 56C of the Further and Higher Education Act 1992, or section 25 of the Learning and Skills Act 2000. The process for intervention would enable a governing body that considered that the LSC was not following its published statement about how it would exercise its statutory intervention powers to make a complaint to the LSC. If the governing body was not satisfied with the response, it could set out its concerns in writing to the Secretary of State. That gives a significant degree of further reassurance.

I also want to give the House a commitment today that where the Secretary of State received notice of the LSC’s intention to exercise its statutory intervention powers, he would write to local MPs, notifying them of the situation. That would be done on a personal basis, to protect those institutions where the possibility of intervention was not in the public domain.

The amendment that we are proposing and the commitment I have given directly address the issues raised in another place. They enhance the accountability that the LSC already has. They make it clear to Parliament and the further education system that Ministers will be keeping a watching brief on situations where serious action in relation to a particular provider might be necessary, and they ensure that hon. Members will be aware of such situations where particular provision is in, or serves, their constituencies.

We have reached a sensible position. We must retain the power to intervene through the LSC in extremis. We have listened and responded to concerns, and I hope that what we are now considering will command support across the House.

I thought long and hard about what to say this afternoon, and I was mindful of the fact that it is never wise to be too extravagant in victory. Equally, however, neither the House nor the Minister—and not even you, Madam Deputy Speaker—would expect my moment in the sun to be entirely fleeting.

Benjamin Franklin said:

“You must not, when you have gained a victory, use any triumphing or insulting expression, nor show too much pleasure; but endeavour to console your adversary, and make him less dissatisfied with himself, by every kind and civil expression, that may be”.

To start in that vein, may I say that throughout the proceedings, the Minister has shown courtesy, diligence and a mind open to the suggestions put by the Opposition? We have had a continuing dialogue, which seems to have begun a long time ago. Indeed, the Bill began its passage early in the year, so this has been a long journey but a not entirely tortuous one; it has been more “Three Men in a Boat”—at least, two men and a lady in a boat—than “Heart of Darkness”. It has not been a dreadful journey into the unknown, but a journey to a destination that is better than we feared when we embarked upon it.

I shall say a few words about the details of the amendments before us. But first I must explain that we remain convinced that the Bill is a missed opportunity to implement the structural changes advocated by Lord Leitch. Of course the Minister knows that, and would expect me to repeat that view. However, we have reached a more desirable outcome than we might have done.

In part, as the Minister has graciously acknowledged both today and on several previous occasions, that is because of the constructive opposition from the Conservatives and the other parties, which have also played a part in this process. It is also because of the work done in the other place, where a measured and well-informed debate about the Bill has taken place. I pay tribute to Baroness Morris of Bolton for the role that she has played in reminding the Minister that although the other place can, on occasion, be stubborn, it is so in the interests of what is right and appropriate. The House is at its best when Bills are improved by careful scrutiny and when the Opposition are listened to. Throughout the passage of the Bill, that has been the case.

I shall not stray too far from the amendments, because you will not allow me to, Madam Deputy Speaker, but I want briefly to say that the proposals for foundation degrees have been improved because of the work that has been done across the Chamber on articulation agreements, taking account of the worries that universities have had about possible repercussions. We have reached a settlement on that, of which we can all be proud.

The benefits of this constructive approach have been demonstrated again this afternoon in the form of the Government amendment. The original version of the Bill would have granted sweeping new powers to the Learning and Skills Council to intervene in further education colleges. I raised that on Second Reading with the then Secretary of State, who has now moved on to other things—I will not say greater things. At that stage the Secretary of State said that he did not think that the powers would be used anyway, as they had not been used in their current form. We did not think that was good enough. Throughout Committee and in the other place we pressed Ministers to mitigate the powers, in the interests both of colleges and of proper parliamentary scrutiny and accountability.

The response to those concerns finds form in the Government amendment. It will mean that to intervene, the LSC must have the express permission of the Secretary of State. That means that people in this House will be accountable for decisions made in that regard—we feared that, under the original form of the Bill, they might not have been. Moreover, the LSC will report annually on how its intervention powers have been used, and that report will be subject to appropriate scrutiny. Furthermore, the Minister has confirmed that at any stage during the process, if any individual feels that the powers have not been used reasonably or appropriately, the Secretary of State will be able to intervene and stop the process—at its beginning, middle or end. That is, in effect, a right of appeal, and I felt that that was important.

In addition, I am assured by the Minister in private discussions and in writing that the powers are not an extension of existing powers. There was a fear expressed in Committee and elsewhere that the new powers went wider than the current powers of the Secretary of State. The Minister assures me in his letter of 26 September that that is not the case. The provisions merely clarify the existing scope of powers that are in the hands of the Secretary of State. That is a great relief to colleges and others who felt that the provisions might be applied more widely to college managers and others, even college lecturers against whom people took a dislike. I understand that that was never the intention, but it was important that the Minister had the good grace and good sense to put that in writing. We end with an amendment that reassures those in the sector that this is not a plan to impose on them even more micro-management than already exists, which we resist today as we have always resisted it.

We do not want to be too friendly; there must be some theatre and drama in our exchanges. People must know that there is a tangible difference between the Conservative approach to further education and that of the Government. So let me say now that we believe passionately in the independence of colleges. This will reassure colleges that these powers are not as draconian as they once seemed. It will also reassure hon. Members of all political parties that they have the opportunity to hold Ministers to account for the way in which these matters are dealt with. That second issue deserves just as much air time, because this House takes its responsibilities in those regards very seriously.

Taken together, the amendments and the further written assurance of the Minister represent a significant change of direction. They mean, in effect, that the LSC will be unable to intervene without the approval of the Secretary of State. I am grateful to the Minister for his clarification. Finally I quote from his letter:

“the Bill does not empower the LSC to intervene in ways the Secretary of State cannot currently do…the LSC would not be able to direct a governing body for example to dismiss a senior post-holder”.

That assurance summarises and typifies the changes that have been made through the amendments.

I know that my colleagues in this place welcome the amendments and the tone that the Minister has adopted in introducing them, and I anticipate, although I have no authority to insist on it, that my colleagues in the other place will take a similar view.

I rise to support the amendments, and to echo the words of my hon. Friend the Minister for Lifelong Learning, Further and Higher Education and of the hon. Member for South Holland and The Deepings (Mr. Hayes) about the constructive and thoughtful debates in which I and others have taken part both in the House and in Committee. We have probably had a little too much theatre in the House this week, and this debate encapsulates the other aspect of our work, which is, when appropriate, to hold sensible discussions and find agreement whatever our party.

I shall briefly refer to the aspects of the amendments that deal with intervention in Wales and order-making powers for Welsh Ministers. From a Welsh point of view, the Bill has attracted much debate about the procedure for dealing with such amendments and other aspects of the Bill relating to Wales. I make two pleas to my hon. Friend the Minister. The first is to nurture the relationship between his Department and the Welsh Assembly Government. The Minister for Children, Education, Lifelong Learning and Skills, Jane Hutt, is a good Minister, and the relationship between the Assembly Government and the Westminster Government should be one of co-operation rather than confrontation.

My second plea relates to the way in which the House deals with amendments that affect Wales. I am still not convinced that there is good enough scrutiny of such amendments. There is a role for Members of Parliament representing Wales, whether in Committee or on the Floor of the House, that has not yet been properly exploited, so I hope that in the Minister’s discussions with the Secretary of State and the usual channels we can improve the methods whereby we scrutinise such amendments.

There is another debate to be had about the fact that the political scene in Scotland and in Wales has changed dramatically—and, thereby, the relationship between the Government, the Assembly and the Scottish Parliament. However, I would be a most unpopular man were I to pursue that subject at present.

I begin, as other Members have done, by thanking the Minister for the way he has worked through the Bill. I have sat through proceedings on many other Bills in which Ministers trenchantly dug in their heels on irrelevant points, so I pay tribute to his willingness to listen, clarify and amend at all stages, including in Committee. The Bill that left the Committee was a grand improvement on the measure that first came to us from the Lords and the amendments proposed today are a considerable move forward. I thank the Minister, too, for making his civil servants available for meetings to discuss the Bill and for attending such meetings himself.

The Lords were right to reject the clause twice in its previous form. I was concerned that it allowed the Learning and Skills Council—an entirely undemocratic body subject to no form of parliamentary scrutiny—to force a private institution to initiate dismissal proceedings against senior staff, even though the LSC may be but one of the bodies providing funding for the institution concerned. I had grave concerns about that, and I pay tribute to our colleagues in the other place for pressing the Government on the issue, so that we now have an amendment that is a considerable improvement.

I continue to question the need for the clause, especially given the fact that the Secretary of State has never used the powers. However, we have moved a long way since the first draft of the provision, and that has met most of my concerns.

The Minister did not address my principal concern in his opening speech, and I hope that he might clarify it in his winding-up remarks. As I said on Report, after the changes in the machinery of government, we expect the responsibility for funding 16-to-19 education to move to the Department for Children, Schools and Families and local authorities, rather than being channelled through the Learning and Skills Council. Therefore, the LSC will not be the funding body for an enormous number of colleges, so it would be an inappropriate regulator. It would be highly inappropriate to give the LSC the power to intervene in such a way.

The Minister assured me in private that he was willing to make it clear on the record that further legislation would be needed when those changes took place. I hope that he will make it clear not only that further legislation will be needed to ensure that the LSC’s powers do not transfer to another body but that those powers should not remain with the LSC. If the LSC is not funding colleges, it should not be the body regulating colleges either.

The key move, which the Minister made clear, involves democratic accountability and parliamentary scrutiny, and the change in the Secretary of State’s role in that respect is very welcome. The fact that the LSC must notify the Secretary of State of its actions and that the Secretary of State will be given the freedom to change and direct the LSC in a different way, with a loop involving MPs as well, provides the possibility of parliamentary scrutiny.

I wonder whether the Minister will also place on record a point that he raised with me in private. He intends to use section 28(2) of the Learning and Skills Act 2000 to direct the LSC to include details of how it has used those powers in its annual report, thus ensuring not only that parliamentary scrutiny is available to MPs who have had the misfortune to see such powers used in their constituencies but that all MPs who have an interest in the issue can question the Secretary of State in his role as the accountable person in the House, where it is appropriate to do so.

Finally, I am pleased that the Minister has placed on record the role of the Secretary of State for Children, Schools and Families. I wonder whether he might elaborate on that role. Presumably, the Secretary of State for Children, Schools and Families will become the relevant Secretary of State, once the machinery of government changes are implemented, but will that Secretary of State always be notified if the college involved does a substantial portion of its work in 16-to-19 education? What if all of its work is in the 16-to-19 area?

I place it on record that I am grateful to the Minister for being willing to amend the clause. This issue has caused us great concern, rightly. I continue to have concerns about whether the clause is needed. However, as the Minister has moved so far, I shall certainly not oppose it today.

We have had a genuinely constructive debate, but I tell the hon. Member for South Holland and The Deepings (Mr. Hayes) that to talk of victory is going a tad far. A sensible intention on the part of the Government has been tightened through the scrutiny process. That, frankly, is how the House should operate. I pay due tribute to both Opposition Front Benchers for getting us to where we are today.

I shall now pick up some of the specifics. In response to the point made by the hon. Member for Brent, East (Sarah Teather), if a change in the responsibility for further education were proposed, whatever it might be, legislation would be needed and there would be an opportunity for scrutiny. I place that on the record.

To answer another point made by the hon. Lady, I am happy to make a commitment to the House that Ministers intend to use the Secretary of State’s power under section 28(2) of the Learning and Skills Act 2000 to direct the LSC to include in its published annual report a statement summarising how it has used its intervention powers under proposed new section 56A. That would include, for example, the type of actions that had been taken, the reason for taking such actions and the outcomes. The form of the statement would be such that it was not possible to identify individual institutions where the fact of intervention was not in the public domain. Nevertheless, I think that that gives the hon. Lady the reassurance that she sought.

I am conscious, as I know the Minister is, that this is a short debate. A number of points are dealt with in the helpful letter dated 26 September this year that he sent to my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes). Will the Minister consider placing a copy of that letter in the Library of the House so that all hon. Members are aware of the background to the helpful information that he has given us this afternoon?

I am more than happy to give that commitment. That will help in the understanding of the debate and the Bill that we are considering.

I shall clarify some of the issues raised by the hon. Member for South Holland and The Deepings in relation to the steps that the LSC must take when it intervenes. The LSC must give prior notice. At that stage, the Secretary of State can take action, but does not have to do so on receipt of such a notice. It is correct that the Secretary of State has a greater opportunity to scrutinise the LSC as it takes that action and, if he chooses, to stop the LSC taking such action.

On another point that the hon. Gentleman raised, the comparison of the current powers of the Secretary of State to intervene and the proposed powers for the LSC, I want to place it explicitly on the record that the Bill does not empower the LSC to intervene in ways that the Secretary of State cannot at present. Rather, it specifies that the power to give directions may include a direction to make collaboration arrangements. It also specifies that the LSC would not be able to direct a governing body to dismiss a senior postholder. Instead, it would be able to direct the governing body to initiate dismissal proceedings.

The comments made by my right hon. Friend the Member for Torfaen (Mr. Murphy), the former Secretary of State for Wales, were exceedingly constructive. His point about nurturing the relationship between the Department for Innovation, Universities and Skills and the Welsh Assembly Government is important. Devolution does not mean divorce. There is a continuing need for co-operation and overlap. I entirely take his point about dialogue. The Under-Secretary of State for Innovation, Universities and Skills, my hon. Friend the Member for Tottenham (Mr. Lammy), has recently had discussions with Jane Hutt about some of these matters. My right hon. Friend’s important point about the need for effective scrutiny will have been heard.

On scrutiny in general, it is important to make it clear that the Bill has been subject to scrutiny and the role of Welsh Ministers has been scrutinised. With reference to the exercise of the powers of intervention, the Welsh Assembly Minister will be subject to scrutiny by the Welsh Assembly. The comments that were made have been extremely constructive and helpful.

First, it may be helpful to the House if the Minister comments on the ability of the Secretary of State to intervene if any of the parties feel that the intervention has been mishandled or inappropriate. The Minister deals with that in his letter to me, but it might be worth articulating it.

Secondly, if the powers were transferred at a future point so some other body—we do not know what the future of the LSC would be—would that require further legislation, as opposed to being done in a more slight and unsatisfactory way?

I thought that I had already made that clear, but I am happy to do so again. If there were changes in future, that would require legislation, which would be open to scrutiny. Will the hon. Gentleman remind me of his first point?

That is the trouble with making two points. In his letter to me, the Minister makes it clear that if the powers were exercised in a way which the parties concerned felt was inappropriate, or if the process of the exercise of the powers went wrong, the Secretary of State could at any point intervene to deal with the matter and draw it to a conclusion. We spoke about that at a meeting and it is confirmed in the hon. Gentleman’s letter, but it would be useful to have it on the record in this place.

I am happy to confirm that the Secretary of State has the power to direct the process. If the notification comes from the Learning and Skills Council and if, as a result of his own judgment or as a result of representations, the Secretary of State is not happy for that intervention to proceed, he may stop it. That is an important commitment.

To conclude, I should say that I think we have given reassurance. For the record, I reiterate that Ministers intend to use the power of the Secretary of State under section 28(2) of the Learning and Skills Act 2000 to direct the LSC to include in its published annual report a statement summarising how it has used its intervention powers. In answer to the point made by the hon. Member for South Holland and The Deepings, I should say that if future changes to the role, functions and structure of the LSC led to proposals to transfer the statutory intervention powers to another body, new legislation would be required to enact that transfer. The Bill does not empower the LSC to intervene in ways that the Secretary of State cannot currently. Ministers envisage that the LSC would use its powers to direct a governing body to initiate dismissal proceedings against a senior post holder other than the principal when wider intervention, which included possible dismissal of the principal, was also being considered. That important point has been raised with me before. We intend the power to be used to address unsatisfactory provision, not to decide who should hold a particular appointment in an institution.

It is important that the House should be clear about such significant matters. In the spirit of our recent work, I hope that we can take forward the point on which the hon. Gentleman pressed me today. Specifically, he asked exactly what the Secretary of State could do if, on receipt of a notice from the LSC that it intended to exercise its statutory intervention powers, he had concerns. I have addressed that point already. However, for the record I say again that, on receipt of a notice of the sort that we propose, it would be open to the Secretary of State, if he was satisfied that the LSC’s proposed intervention was not appropriate, to exercise his powers under proposed section 56C of the Further and Higher Education Act 1992 to direct the LSC on the exercise of its statutory intervention powers.

Under section 25 of the 2000 Act, the Secretary of State could also direct the LSC not to act if he was satisfied that the LSC was proposing to act unreasonably in relation to its statutory powers or duties, or if it had failed to discharge a statutory duty. Any such direction by the Secretary of State might be as a result of any failure by the LSC to have regard to its most recently published statement of its intervention policy, so the issue would be framed within the context set out by the LSC. As I explained earlier, the Bill provides that the statement must be approved by the Secretary of State and that he must lay a copy of the approved statement before each House of Parliament. If the Secretary of State directed the LSC under proposed section 56C or section 25 of the 2000 Act, he would be accountable to the House for that decision.

At the end of a constructive exchange, I hope that what I have said gives the reassurance hoped for by hon. Members of all parties. It should conclude proceedings on an important Bill that gives power, status and influence to our further education colleges so that they can continue the hugely important task that they face.

Question put and agreed to.

Amendments (a) to (f) agreed to.


Motion made, and Question put forthwith, pursuant to Standing Order No. 83A (Programme motions),

That the Order of 8th October 2007 (Criminal Justice and Immigration Bill (Programme)) be varied by the substitution in paragraph 2 (time for conclusion of proceedings in Public Bill Committee) for the words ’Tuesday 30th October 2007’ of the words ’Thursday 29th November 2007’.—[Mr. Watts.]

Question agreed to.