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Education and Skills Bill

Volume 483: debated on Monday 17 November 2008

Lords amendments considered.

I draw the House’s attention to the fact that privilege is involved in Lords amendments Nos. 1 to 23, 28, 32, 40, 81 and 151. If the House agrees to any of these Lords amendments, I shall ensure that the appropriate entry is made in the Journal.

Clause 22

Financial penalty for contravention of section 21

Lords amendment: No. 1.

With this it will be convenient to discuss Lords amendments Nos. 2 to 23, 33 to 39, 174 to 177 and 191.

I would like to speak first to amendments Nos. 1 to 23, and 38. I welcome the careful scrutiny that the Select Committee on the Constitution gave to the Bill. I also welcome the Committee’s detailed and helpful comments on duties on employers, related sanctions and rights of objection and appeal. The enforcement powers that local authorities have in relation to employers will be used only as a last resort, and would always be preceded by informal engagement with the employer. We will also consult employer organisations to develop clear guidance for employers to ensure that they fully understand what is expected and do not risk facing enforcement action. However, should enforcement provisions need to be used, the Government agree it is important to be absolutely clear that employers have rights of objection and appeal. These amendments ensure that this is the case.

Amendments Nos. 174 and 176 give effect to one of the recommendations of the Delegated Powers and Regulatory Reform Committee. They ensure that any regulations setting the amount of the financial penalty that a local authority can impose on an employer who has failed to comply with their duties would be subject to the affirmative procedure, except where those regulations reduce the amount of the penalty. The Committee recommended that the affirmative procedure would be needed only for the first use of the regulation-making power, and for any subsequent regulations that raised the amount of the penalty by more than inflation. However, as it proved difficult to link the provisions to inflation in this way, we have gone beyond the Committee’s recommendation and proposed the affirmative procedure for every use of these regulations, except where they reduce the amount. I am grateful to the Committee for its careful scrutiny and constructive recommendations.

Amendments Nos. 33 and 34 clarify that the duties on employers in chapter 3 apply in relation to employment in this House and in the other place. It is right that that employment should count for the purposes of the duty to participate, and that the duties to check that a young person is in education or training and release them to attend should apply, to ensure that young people can participate in the necessary learning. But, as is the custom, it would not be appropriate for local authorities to have powers of enforcement against this House or the other place, so the amendments clarify that the provisions in chapter 3 relating to enforcement do not apply. Amendment No. 35 is a consequence of the previous amendments, and the relevant definition is included in the new clause and can therefore be deleted from this one.

Amendments Nos. 36 and 37 are minor and technical amendments to aid interpretation of the Bill. Amendment No. 36 replaces the definition of a member of the House of Commons staff in the Bill with a reference to the existing definition in the Employment Rights Act 1996, and amendment No. 37 makes provision for who is to be treated as the employer in relation to House of Commons staff.

We discussed questions relating to Wales on Report in this House, and my hon. Friend the Member for Ogmore (Huw Irranca-Davies), the then Under-Secretary of State for Wales, committed that we would

“ensure that the Bill is drafted in such a way that it enables all aspects of the policy to be capable of application in Wales in future”.—[Official Report, 13 May 2008; Vol. 475, c. 1287.]

My hon. Friend now occupies the office that I used to occupy in the Department for Environment, Food and Rural Affairs—and it a very comfortable one. I am pleased to see my hon. Friend the Member for Caerphilly (Mr. David), the new Under-Secretary of State for Wales, in his place. I take this opportunity to congratulate him.

Amendments Nos. 39, 175, 177, and 191 enable the duties on employers in chapter 3 of part 1 to be applied to Wales in future, should the Assembly Government, having studied the impact of the legislation in England, decide to acquire the legislative competence to raise the participation age in Wales and bring forward a measure to do so. We think it important that duties on employers on either side of the border should be the same if the participation age is the same, so that the system is easy to understand and potential burdens on employers are minimised. The amendments ensure that should the participation age be raised in Wales, and should the Secretary of State use his power to apply the provisions in chapter 3 to Wales, any order he made would be subject to the affirmative procedure, and that Welsh Ministers would need to be consulted first.

I hope that hon. Members will agree that this group of fairly technical amendments improves the Bill, and I commend the amendments to the House.

I am grateful to the Minister for that clear explanation of the group of Lords amendments. He cited the House of Lords Select Committee on the Constitution, but I do not believe that he mentioned the letter of 11 June from my noble Friend Lord Goodlad.

Given that Lord Goodlad was a former Chief Whip in this House, I was already convinced that everything he said in that letter was true. However, I was even more convinced once I had read it. Lord Goodlad makes the important point of principle that

“where the executive branch of government is given powers to impose penalties, minimum standards of administrative justice should be in place to safeguard people from wrongful impositions of demands for compliance or payment of financial penalties (whether because of a factual mistake or legal error on the part of the public authority). ”

He refers to the common law principle of audi alteram partem. As one of the last generation of state-educated pupils to learn Latin, I can tell the Minister that that means “Hear the other side.” It leads Lord Goodlad to ask why the Bill contains no express obligation to hear the employer’s side of events before a compliance or penalty notice is imposed. He goes on to ask, in English, why the Bill contains no express provision for reviewing enforcement and penalty notices.

The next matter of concern that my noble Friend raised relates to appeals. He said:

“In situations where an executive branch of government is empowered to impose sanctions, especially financial penalties, it is of great importance that accused persons have access to an independent court to question the legality of a penalty.”

Lord Adonis, in his response of 1 July, replied that, as the fine would be a civil penalty, recoverable through the county court, the employer would have the opportunity to put his case and effectively provide an appeal. However, Lord Goodlad said:

“We believe that as a matter of principle there ought to be express provision for an appeal to enable the person subject to a penalty to challenge the factual and legal basis on which the penalty has been imposed.”

He went on to cite the express appeals provision in clause 39 of the Pensions Bill, which creates a right of appeal to a tribunal.

Lord Adonis’s response was:

“We did not think it desirable to provide for rights of appeal because this would mean establishing a new body to hear such appeals. Unlike the Pensions Bill where there is a natural body to hear appeals (the Pensions Regulator Tribunal) we would have to create a new independent body to hear such appeals which did not seem justified in the circumstances”.

It is therefore slightly odd that the amendments, especially amendment No. 4, create an appeal to the first-tier tribunal.

Conservative Members agree that, following the letter from the Select Committee, it is important to provide a right of appeal. However, it would be helpful if the Minister explained the discrepancy between the point in Lord Adonis’s letter that a new body would have to be established, and the amendment, which states that the appeal is to be made to first-tier tribunal. Which first-tier tribunal? Lady Morgan, the Minister in another place, provides no explanation. Perhaps the Minister could let us know during the debate.

I am baffled—as a result, I am sure, of my ignorance of the new arrangements for the tribunal service—about to which of the various chambers and tribunals an appeal could be made. Would it be to the social entitlement chamber, which covers the asylum support tribunal, the social security and child support appeals tribunal and the criminal injuries compensation appeals panel? Would it be to the war pensions and armed forces compensation chamber? The most likely candidate is the health, education and social care chamber.

Let me relieve the hon. Gentleman of his pain. The appeals would be heard by a general regulatory chamber of the first tier. One of the aims and advantages of the new tribunal system is to avoid a multitude of small chambers. Given the small number of appeals likely, we do not think we need a chamber specifically for such appeals.

I am grateful for that response, which is on the record and will be helpful to those outside.

Let me return to Lord Adonis’s comments in his letter of 1 July. In that letter he said:

“the enforcement system against employers is not a criminal one, and would culminate in a financial penalty recoverable through the County Court”.

The point to note is that we are talking about a civil penalty. For employers, the punishment for not complying with the Bill—that is, for not providing training or time off for training—is a civil one, whereas the punishment for the 16 or 17-year-old who does not participate is a criminal one. It is the fact that the Bill seeks to criminalise young people that has raised so many concerns. We all share the aspiration of increasing participation in education or training to the age of 18, but how will it help a young person if he or she sets out on their career saddled with a criminal record?

The Children’s Rights Alliance for England, the British Youth Council and the Association of School and College Leaders all oppose the provisions that introduce criminal sanctions, even though they might support the general aims of the Bill. The Prince’s Trust, which has vast experience of helping the very group the Bill is principally aimed at, is concerned about criminalising young people. In her evidence to the Public Bill Committee, Martina Milburn, the trust’s chief executive, said:

“the bulk of the 40,000 people who we worked with last year had issues with drugs and alcohol. What do you do with a young person who is already going down the path of taking too many drugs and drinking too much and who just says, ‘I’m not going to do it’ and disappears?...Do you increasingly criminalise young people…or do you find some way of trying to reach them and sort out some of their issues?”––[Official Report, Education and Skills Public Bill Committee, 22 January 2008; c. 16, Q36.]

My noble Friend Lady Morris fought valiantly in another place to try to find a way for the Bill’s objectives to be achieved without recourse to criminal law. On Third Reading she said:

“while we share the Government’s ambition to see each and every 17 and 18-year old receive the best education or training to help them realise their full potential…Our desire in all this was to ensure that no young person received a criminal record simply because they were disaffected with the system, especially at such a critical age and stage of their life, when a criminal record could be disastrous.”—[Official Report, House of Lords, 11 November 2008; Vol. 705, c. 556.]

The Government have argued that penalties cannot be imposed except by using the criminal process, but it seems that civil penalties can be imposed on employers, whether they be individuals or companies. The Government say that the civil procedures are not designed for those under the age of 18, but again, I am not sure whether that is true. The county courts are very used to dealing with rent and money issues affecting 16 and 17-year-olds. The Government also say that if a civil penalty is not paid, the ultimate sanction is jail, which the youth court process that the Bill uses cannot resort to. However, most civil penalties are enforced through attachment of earnings orders. It cannot be beyond the wit of parliamentary draftsmen to ensure that those are the only remedies in law for ensuring the payment of civil penalties of £200 or less in such circumstances.

On the provisions concerning parliamentary staff, which the Minister mentioned and which the amendments would change, it is clearly right that all the duties and rights that young employees generally have should also apply to staff in the House of Commons and another place. As Lord Adonis said in Committee in another place:

“It is right that this employment should count for the purposes of the duty to participate—and the duties to check that a young person is in educational training…However, it would not be appropriate for local authorities to have powers of enforcement against this House or another place.”—[Official Report, House of Lords, 17 July 2008; Vol. 703, c. 1424.]

I take the point, but it might be helpful if the Minister could explain why that would not be appropriate. Does that also mean, for instance, that the House of Commons authorities cannot be prosecuted for breaches of health and safety regulations or for the standards of hygiene in the kitchen? It would be helpful to have an answer to the latter point before 8 o’clock this evening or before any of us pops out for a cup of tea and a muffin in the canteen.

I rise briefly to speak about criminalising young people. It is in the nature of things for 16 and 17-year-olds to be disaffected and to baulk at participation. There is a great feeling that the Government have not done enough to find a way around the problem of criminalising them. We currently have too big a Government, with too much interference in people’s lives and too much of a nanny state. I urge the Minister—he is a good man who understands these things clearly—to look at the problem again and find an innovative way round it.

We will return to those points in the next set of amendments, so I will deal with them then, rather than now.

I am grateful to the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) for pointing out Lord Goodlad’s letter and the importance of audi alteram partem, meaning “Hear the other side”, which is what we have been doing throughout the process in the Lords. We will be debating the various ways in which we have been listening to the other side throughout today’s debate.

The hon. Gentleman underlined the reasons why we believe that the principle of having appeal is right, on reflection. I believe that I answered his question on the first tier of the new tribunals system that is in place thanks to the Tribunals, Courts and Enforcement Act 2007. To some extent, when the Bill was originally drafted and scrutinised in the Commons, the measures that are now in place in respect of that Act were not in place. It is therefore appropriate that we now take cognisance of them.

The hon. Gentleman asked questions about civil versus criminal sanctions. I suspect that when we deal with the next set of amendments we will probe in a little more detail whether criminal sanctions are appropriate for young people on top of the range of things that are in place to encourage them to participate. However, it is appropriate that we have civil and not criminal sanctions for employers. The enforcement system for employers is not criminal. It culminates in a financial penalty that is recoverable through county courts, in which employers have the opportunity to present things from their perspective having used the right of appeal, if they so wish. That is appropriate, and we will discuss in a minute whether the measures for young people are appropriate. In essence, as the hon. Gentleman knows because we have discussed the matter at some length both in the Chamber, in Committee and in private, I believe that the youth court, because it is specifically designed to deal with training and sanctions for young people, is the appropriate body to deal with those matters for young people.

On the basis of those explanations, which I hope are adequate, I hope that the House will support the amendment.

Lords amendment agreed to.

Lords amendments 2 to 23 agreed to [Special Entry].

Clause 44

Variation and revocation of attendance notice

Lords amendment: No. 24.

With this it will be convenient to discuss Lords amendments Nos. 25 to 32, 40, 173, 178, 179 and 211.

I welcome this second group of amendments that were made in the other place and I believe that we therefore have a stronger, fuller and better Bill. This group makes further refinements to the support and enforcement system for young people, which is probably the most controversial and debated aspect of the Bill.

Amendment No. 40 enables a local authority to enter into learning and support agreements with young people. In a learning and support agreement, the local authority would agree to provide support and learning activity, and the young person would agree to comply with certain requirements. The young person must be involved in the process of identifying their needs and the best way to address them, and in negotiating the requirements that they in turn agree to stick to. That something-for-something approach is the model for our activity and agreement pilots aimed at 16 and 17-year-olds who are not in employment, education or training—or NEET—the evaluation of which will report fully later on in the year. Early signs are very promising that it is an effective approach to which young people respond positively. When we debated learning agreements in this House, I always said that they were best practice.

Contracts or agreements are also widely used by voluntary sector organisations, such as Barnardo’s and Rainer, in their programmes to support young people’s transition back to formal learning. The idea is popular with young people. Learning and support contracts serve to emphasise that both the local authority and the young person have responsibilities, and I hope that the House will support the amendment.

Amendment No. 24 is a minor amendment that makes it clear, for the avoidance of doubt, that where a variation is made to an attendance notice, as provided for under clause 44, all the requirements about the description of education or training in the notice apply as they did to the original notice. So the education or training must satisfy the central duty to participate, be suitable for the young person and so on.

Lords amendments Nos. 25 and 26 give effect to another recommendation of the Delegated Powers and Regulatory Reform Committee. The amendments would ensure that the amount set in regulations for the financial penalty to be given to a young person could never exceed the maximum fine that a young person could receive in a youth court, which is currently £200. We have already said that, in practice, the financial penalty for young people would be significantly less than that figure, and I am grateful to the Committee for its careful scrutiny of the Bill.

On amendments Nos. 27 to 31, 173, 178, 179 and 211, the Government believe that very few young people will reach the enforcement process, and I hope that very few—if not none—will reach the very end of it. If a young person fails to participate, a local authority must engage with them, find them an option that suits them and help them to take up learning again. Even after enforcement action has been formally started, there will be a process of administrative sanctions, support and dialogue with a young person before they can reach the youth court.

I remind the House that the local authority needs to engage with the young person and offer them appropriate learning and support. If that is not taken up, a formal offer will be made, followed by an attendance notice, and if that does not work, the matter will go to the attendance panel. In turn, if the young person still fails to engage after that fourth stage, a fixed penalty notice will be issued by the local authority to avoid the need to enforce the matter through the courts. If the young person then fails to pay the fixed penalty notice, there is a right to appeal to the attendance panel. It is only then, if the attendance panel agrees with and confirms the need for the notice, that the matter goes to the youth court. That is at the end of a very long process with many stages, and if a young person re-engages in learning or has a reasonable excuse at any one of those stages, all enforcement action will cease.

The Minister says that if the young person goes back into education, all enforcement action will cease. Does that mean that they could continually engage with the enforcement process and go back enough to return to ground zero again? How will he ensure that they do not take the mick out of the system?

Naturally, we are concerned about mick-takers, so the process would not go all the way back to the beginning. In the end, the matter would come down to the judgment of the attendance panel, at the points at which I have described it working. If someone came back before the panel pretty rapidly and its members felt that they were a mick-taker, the panel would want to move pretty rapidly through the rest of the stages. I hope that that satisfies the hon. Gentleman in respect of such individuals.

Should enforcement action be taken against a young person, however, it is the Government’s clear position that no young person should enter custody as a result of committing the offence of failing to comply with an attendance notice without reasonable excuse. We are satisfied that there are sufficient safeguards in place to ensure that that will not happen to those aged under 18, and custody will not be available to the youth courts in respect of defaulting on the payment of a fine. Furthermore, we do not believe it is realistic that, in practice, any court would impose a custodial sentence for non-payment of a level 1 fine on someone more than 18 years old. However, the amendments would achieve greater certainty on that point and remove even the theoretical possibility of the situation occurring by transferring from the magistrates court to the county court the enforcement of a fine imposed for that offence only once the individual concerned had turned 18.

Building on all that, I turn finally to Lords amendment No. 32, which would introduce a commitment to undertake a review of the enforcement process for young people who did not comply with the duty to participate, so that we might be clear that the system was effective in reinforcing compulsion, and learn any lessons to improve the system. We have said that the review would be completed by 2016, allowing it to examine experiences of the first cohort to be required to stay until they were 18 years old. The review would also be chaired by someone who was independent to ensure that it was robust. The purpose of the review is to make sure that the support and enforcement system achieves what we want it to do—make sure that young people participate so that they can achieve, progress and reach their full potential.

The group of amendments to which I have spoken serves only to strengthen the support provisions for young people and ensure that the enforcement system is robust and fair. I commend the amendments to the House.

We are pleased to return to our measured consideration of these important matters, which absorbed a good deal of the debate in Committee and the House of Lords. We are grateful to the other House for its close consideration, which gives us a chance to debate these matters again. Without at all wishing to crow, I should say that the Government have had a chance to think again about some of the arguments advanced in Committee regarding the issue of criminalising young people, which so concerned Opposition Members.

Amendments Nos. 27 to 31, 173, 178, 179 and 211 ensure that ordinary adult fine enforcement procedures do not apply in the case of persons not complying with an attendance notice. Amendment No. 28 ensures that even pre-18-year-old offenders are dealt with in magistrates courts and that those over 18 are dealt with in county courts. Neither court has the capacity to impose custody, as the notes on the amendments make clear. Amendment No. 29 ensures that if the offender fined is over 18, they are dealt with in the county court. Amendments Nos. 28, 30 and 31 allow the Lord Chancellor to make further detailed provisions. Amendments Nos. 173, 178 and 179 are consequential amendments, inserting the words “or Lord Chancellor” after “State”. Amendment No. 211 invokes the Criminal Justice and Immigration Act 2008 to allow magistrates courts to revoke youth default orders when the individuals concerned reach 18 and apply new fines, depending on how the young person has complied with the order. Again, the county court will deal with that.

As an Opposition, we fully support the move to civil law, preventing custodial sentences and the utilisation of learner support agreements that delay the use of fines. The Minister has said a word about that issue today, and we debated it at length in Committee. We made the case consistently during the passage of the Bill and are pleased that the Government have finally agreed the position that we adopted at the outset. Time and again in the evidence sittings in Committee we heard that young people might be criminalised. That was of concern not only to the young people themselves, but, as my hon. Friend the Member for Bognor Regis and Littlehampton (Mr. Gibb) has mentioned, to many of the organisations that work most closely with the disadvantaged.

As compassionate Conservatives, we make no apology for allocating a disproportionate concern, energy and intellectual capital to the defence of the most vulnerable in our country, particularly young people. The experience of those who deal with young people—particularly disengaged and troubled young people—was made clear by their evidence. Those with such experience believe that if such young people were stigmatised or criminalised they could become entirely disengaged and impossible to re-engage in the education process. As my hon. Friend the Member for Bognor Regis and Littlehampton mentioned, the Prince’s Trust waxed eloquent on that subject. I take this opportunity to wish His Royal Highness the Prince of Wales a happy 60th birthday; without him, there would not have been a trust to give the evidence that so informed our consideration and in the end persuaded the Government to change their mind. He is surely the greatest living Englishman.

A representative of the Prince’s Trust told us that

“the bulk of the 40,000 people who we worked with last year had issues with drugs and alcohol. What do you do with a young person who is already going down the path of taking too many drugs and drinking too much...The question is how you deal with that. Do you increasingly criminalise young people and just say, ‘Right, we’re going to lock you all up,’ or do you find some way of trying to reach them and sort out some of their issues?”—[Official Report, Education and Skills Public Bill Committee, 22 January 2008; c. 16, Q36.]

The evidence graphically illustrates that young people in the greatest need are least likely to benefit from a Bill that coerces them and ultimately—if they do not abide by their duties—criminalises them. We heard similar evidence from the Association of School and College Leaders, which said in its briefing on the Bill that its preferred approach to achieving full participation was persuasion rather than coercion.

There is no lack of commitment among those on the Conservative Benches to the principle of increasing the participation of post-16-year-olds in education. Indeed, we regard ourselves as at the forefront of that campaign. However, we believe that we are most likely to achieve such participation by inspiring, encouraging and moving the hearts and minds of young people, rather than by coercion.

In Committee, the Minister made it clear that he believes that the vast majority of young people, including many who are disengaged, can be re-engaged—not by compulsion, but by the quality of the offer that the Government would seductively place before them. Furthermore, when I pressed him closely on that, he acknowledged that there would always, notwithstanding that seductive offer, be a certain number who played truant. Truancy is at its highest level for 10 years, as the Minister must know. The percentage of half-days lost to truancy across all schools last year rose, and was higher than at any time since the Government came to office. Recently, they dropped their target to cut truancy, as he will know. We are therefore still concerned about the recourse to fines and youth courts, which should be a last resort.

On Report in the other place, Baroness Morris of Bolton said that

“while we share the Government’s ambition to see each and every 17 and 18-year-old receive the best education or training to help them realise their full potential, our main concern throughout the Bill has been the issue of compulsion and the attendant sanctions this brings….The Government constantly reassure us that the checks and balances put in place by the Bill will make criminalisation extremely rare. We hope that it will not happen at all. However, we welcome the independent review offered by the Government.”—[Official Report, House of Lords, 11 November 2008; Vol. 705, c. 556.]

Now we have the Government acknowledging the strength of the argument that we advanced in the Commons, but one or two questions remain. The Minister will want to make these matters perfectly clear, and we want his concession to be laid before us in the fullest detail.

The first point concerns the scale of fines. The Minister has been helpful today, and the explanatory notes state in this respect that fines will be defined around the standard scale for summary offences at level 1. It would be helpful to have some feel for what that is. For the record, it would be useful to take this opportunity, in the House, to put some numbers to it.

Secondly, the Minister will know that in Lords amendments Nos. 27 to 31, 173, 178 to 180, and 211, we deal with fine enforcement. It is clear that

“failure to comply with an attendance notice without reasonable excuse”

will lead to further action. Again, it would be helpful if he defined “reasonable excuse”. It may be a standard legal definition or particular to this area of law, but it would be helpful to put the matter on the record.

On the agreements that are to form part of the relationship between Connexions and young people dealt with in amendment No. 40, it would be helpful if we knew more in relation to young people with particular needs. I have in mind young people with special educational needs who may have a statement. Needs are defined in the Bill, as I understand it, but what about SEN and what about young people who may be particularly disadvantaged in making such agreements, and in so doing enabling themselves to comply with the law? Will the Minister say a word about that?

I leave the Minister with those few words and questions. It is good news that the Government are gradually coming around—they certainly are not kicking and screaming; as we saw today, there was far more elegance in the Minister’s performance than that—to our point of view.

I know that the Minister will be disappointed if I do not speak to this group of amendments, especially when doing so gives me an opportunity to praise my colleagues in the other place. I believe that they were the moving force behind Lords amendments Nos. 40 and 32. I shall not detain the House too long, as the hon. Member for South Holland and The Deepings (Mr. Hayes) has already done a comprehensive job in speaking to this group. I am sure that the Prince of Wales will be moved by the hon. Gentleman’s tribute to him, just as we are all moved by the hon. Gentleman’s modesty. Most of us here thought that the hon. Gentleman was the greatest living Briton, so it was remarkably generous for him to give the accolade to someone else.

Let me deal first with Lords amendment No. 40, which introduces what the Government now call learning and support agreements. Those agreements sound remarkably similar to the learning and support contracts that my party sought to include in the Bill, and which I believe have Conservative support. I would be interested to hear from the Minister what was convincing about the learning and support agreements that was not similarly convincing in respect of the learning and support contracts.

The Minister will recall from earlier discussions on this issue, to which we returned on a number of occasions, that one of our concerns was that there should be an alternative to being in education and training for young people who really needed support for a period, perhaps on account of mental or general health issues, family issues and so forth. The Minister included some of those issues in a letter to me, which helped me to anticipate the Government’s thinking.

Will the Minister clarify precisely when and how the learning and support agreements will be used? Our hope all along was that they could be used in place of education and training in circumstances where it was difficult, because of other problems, to get a young person to engage in education and training. I am still somewhat unclear from Lords amendment No. 40 about the precise circumstances in which the learning and support agreements could be used. Subsection (4) of the new clause set out in the amendment states:

“The learning and support agreement must include provision (whether or not in the form of a learning and support condition) relating to the young person’s participation in education or training.”

Does that mean, as I fear it may, that the learning and support agreements are to be used only to support a young person who must be in education and training at the same time as engaging in the agreement, or does the Minister envisage the possibility of a young person, with the agreement of the local authority, being in a learning and support agreement that provided the sort of support necessary for going into education and training, but before formally engaging in the education and training that were previously a condition and requirement of the Bill? Clarification on that point would be helpful.

We also welcome the Government’s attempts to avoid the custodial option for young people against whom enforcement action is being taken under the Bill. That obviously goes nowhere near as far as we would like, because of our fundamental concerns about the Bill. We continue to worry about the effect of taking this enforcement action against young people who may not be complying—in some cases, for perfectly good reasons—with the measures in the Bill. Removing the custodial option is very welcome indeed.

Ministers made a further concession to my excellent colleagues in the other place regarding Lords amendment No. 32, which promises a review in 2016. That might seem a somewhat modest achievement, but we hold out the hope that the review may cause the Government at least to rethink if serious problems come to light in the policy of applying criminal standards to young people for failing to comply with education and training requirements. The explanatory notes suggest that, as the Minister indicated earlier, the report is to be made in 2016, but I may have missed some detail that clarifies that that is a certainty.

I note, however, that the proposed subsection (2) set out in Lords amendment No. 32 states:

“The person appointed must make a report to the Secretary of State on the review within a reasonable period after the school leaving date for 2016.”

Have the Government already determined that “a reasonable period” means that the review will take place in 2016? Given the description in the explanatory notes of the type of review that the Government envisage, will the Minister put it on record that there is nothing to prevent the review’s conclusions from leading to a fundamental rethink by the Government about the policy of applying a criminal standard to young people who fail to comply with education and training requirements?

The amendments fall a long way short of what we would really like to see in the Bill, but they are welcome concessions none the less, and we hope that after the Minister has spoken we shall be able to welcome them even more warmly.

This is indeed a controversial set of amendments. Of course we all want to improve the life chances of 16 and 17-year-olds, but it is best to do that by means of inspiration and the creation of opportunities for them, rather than by means of compulsion. There are enough ways in which youngsters in that age group can get into trouble without our creating yet another. That smacks of unnecessary interference in people’s lives, bigger government and the nanny state. I am surprised at the attitude of Opposition Front Benchers to the amendments, and also at the lack of interest in them; very few Members are present to debate them.

I have not yet heard how many administrators and other additional staff will be needed to police the new system, what the cost will be, and how we will stop local authorities and others from doing what they do in this country—gold-plating the regulations, and taking them rather further than the House expects them to be taken. We have heard little about how we will prevent the youth courts from becoming bottled up if that happens. The Minister said that very few cases would end up in the youth courts, but we have heard such undertakings in this place before, and quite the contrary turns out to be the case when the laws are rolled out. We have not been told how, in the last resort, the payment of fines will be enforced. Unless a sanction is enforceable, it will be meaningless. As was stated by both Front-Bench spokesmen, there will be micky-takers in the system.

We do not need this nanny-state measure. What we do need is the provision of real opportunity and inspiration for young people. We must provide ladders, so that when they reach an age at which they decide that they want to acquire skills and education they are able to do so, rather than enacting measures to criminalise them.

My constituency contains six secondary schools that will need to increase their capacity considerably because of the additional participation of people aged between 16 and 18. Four of them are oversubscribed. There are waiting lists, and people are turned away. People write to me every week asking how they can get their kids into those four schools. However, Essex county council is closing one of them, and is allowing the borough council to sell the school playing field so that hundreds more houses can be built. What will the Minister do to ensure that resources are available to enable children in that age group to take advantage of further education?

Some of those questions really do need to be addressed. I strongly believe that the Minister should think again before criminalising young people.

I agree with the hon. Member for Castle Point (Bob Spink) that the Bill’s provisions are one more attack on liberty by this new Labour Government. We are now in the 12th year of this Labour Government, and one would hope and expect a Labour Government to put resources and effort into raising opportunities for those with least, but instead there are now more than 1 million young people in the 16-to-24 age group who are not in employment, education or training; that means that more than 1 million young people are missing out on either work or training. On Government figures, that is a 15 per cent. increase in the number of people in that predicament since 1997. [Interruption.] I do not know what the Under-Secretary of State, the hon. Member for Birmingham, Erdington (Mr. Simon), is muttering about; he is free to intervene on me, if he wants to correct me.

The Government’s policy has failed young people. It has failed them in terms of vocational educational opportunities, for instance. This year’s big new measure is to do with diplomas, but just 0.5 per cent. of the cohort have taken advantage of it, and there is a real risk that it will fail. Apprentices are the other key area of opportunity for people who have not succeeded as they might have wished in academic pursuits. The Government claim that the number of apprenticeships has increased from 75,000 in 1997 to 250,000 in 2007. The Minister for Schools and Learners is nodding, and that statistic would suggest excellent Government progress, but the House of Lords Economic Affairs Committee reported in June 2007 that

“most of this increase has been as a result of converting government-supported programmes of work-based learning into apprenticeship.”

In other words, they are not real apprenticeships.

In this 12th year of failure by this Labour Government to provide the inspiration—a word used by the hon. Member for Castle Point—for young people to engage with learning, the Government have now come up with the heavy-handed response of bringing in compulsion, and of setting up the bureaucratic nightmare, which was apparent from what the Minister for Schools and Learners said, of local authority committees and groups pursuing young people who have been let down by the education system. Instead of pressure being put on the education system and local authorities to deliver in a way that captures the imagination of these young people, the young people who have been let down are to be pursued so that they face a bureaucratic nightmare that can lead to fines, criminalisation and stigma. This is not the right way to respond to the difficulties the Government have had in reaching such young people.

On the issue of compulsion, I seek reassurance from the Minister as to what steps he is planning to take to ensure that young people in further education colleges or schools who want to learn do not find that that is disrupted by those who have been dragged into classrooms by the bureaucratic process the Minister described. Can he also put me right on one other point I am concerned about? As a result of this measure, if there is an outstanding young student who at, for example, the age of 17 completes their school education and wins a scholarship to one of our top universities, but who wants to take a year off, will they be able to do so, or will they be compelled to be engaged in education for that year? [Interruption] The Under-Secretary says that, according to my figures, they would be NEETs. The truth is those figures are provided by Government, and the Under-Secretary is quite free to get to his feet rather than—

Order. If we are to have interventions from either side of the House, that must be done in the normal way, and not from a sedentary position.

Thank you very much for that, Mr. Deputy Speaker. I am aware of your role as protector of Back-Bench Members, and we should be able to challenge Ministers, and they should not intervene from a sedentary position. If the Under-Secretary wants to correct the figures, he is free to do so from the Dispatch Box, but he does not do so.

Is the hon. Gentleman as concerned as I am about the reasonable excuses that youngsters who decide not to participate can put forward? Does he think that that will be a bureaucratic nightmare? Can he think of any reasonable excuses? Does he know how far they will go, or how we will get consistency of interpretation of such reasonable excuses across the country, from Dorset to Yorkshire to Northumberland? Has he asked any of these questions?

The hon. Gentleman is right to raise that point. Indeed, my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes) posed just such a question to the Minister, and I hope that he will be able to clear it up. The fear is that there will be inconsistency, that different areas will apply this provision in different ways, that the guidance is poor and that this legislation has not been properly thought through.

A central tenet of this Bill was to criminalise and ultimately to jail young people. That has been rightly dropped, but the fact that it was in the Bill until such a late stage suggests that it, like so many of the new Labour initiatives of the past 12 years, has not been properly thought through. Yet again, those with least in our society will be let down by a failing Labour Government.

What an interesting debate—it reminded me of the Second Reading debate of all those months ago. I am not going to get distracted by the new Tory party policy on who the greatest living Briton is, but I certainly join the hon. Member for South Holland and The Deepings (Mr. Hayes) in wishing His Royal Highness a happy 60th birthday.

The hon. Gentleman raised questions associated with absence and what he would call truancy rates. I remind him that, by the end of spring 2007, the absence rate stood at 6.44 per cent., on track for a rate for the year as a whole of 6.5 per cent.—the lowest on record. In secondary schools, overall absence fell to 7.76 per cent. in the first two terms of 2006-07, compared with 8.16 per cent. for the comparable period in the year before and 9.07 per cent. in the whole of 1996-97. We certainly take no lessons from the Conservative party in respect of truancy.

The hon. Gentleman mentioned people who are not in education, employment or training—NEETs—and I shall deal with that point in a short while. He also discussed the views of stakeholders on compulsion and enforcement. I do not argue with his version of events in respect of the witnesses who came before the Public Bill Committee, because there were certainly those who disagreed with compulsion, but I remind him that some agreed with it.

The chief executive of Barnardo’s, Martin Narey, told us that

“ultimately, after all the safeguards within the Bill”—

this is an important point—

“our position is that we support compulsion as a means of ensuring that the most disadvantaged young people have their horizons broadened and are prepared for a world of work, rather than a world of benefits and long-term poverty.”––[Official Report, Education and Skills Public Bill Committee, 22 January 2008; c. 4. Q1.]

He went on to say all sorts of wise and helpful things.

Even the National Union of Teachers said:

“The impact of saying, ‘This is now our expectation’, will move everything forward. The penalty is a minor issue.”––[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 137. Q321.]

In addition, the Prince’s Trust, the very organisation to which the hon. Gentleman referred, stated:

“If you make it compulsory and you put in adequate resources…then it would make a big difference because, yes, you would get that shift on the ground.”––[Official Report, Education and Skills Public Bill Committee, 22 January 2008; c. 21. Q52.]

This policy seeks to create that shift on the ground.

We agree with the Association of School and College Leaders that we are after persuasion rather than coercion, but we do not rule out coercion, at the end of the road, as a way of galvanising the whole system around children and, in particular, the journey that the current year 7s are going through as the first cohort to which this will apply. The fact that they know that they will not drop out and will stay on, and that everyone who works with them knows that that will be the case, will have a hugely galvanising effect on the whole system—it is certainly having a galvanising effect on my Department. Of course, enforcement is the last resort—it must always be the last resort. I set out all the stages of enforcement showing that enforcement and, in turn, any form of criminalisation, is very much the last resort. As I have said, I hope that that is never needed.

The Minister knows that he has claimed, on the record, that the majority of young people who do not stay on post-16 will be encouraged to do so by the quality of the offer that the Government make to them and, furthermore, that, whatever we do, a small number will truant. Precisely what proportion of young people is he suggesting coercion will affect?

We have a compulsory school leaving age, and it is compulsory for people under the age of 16 to go to school. That does not mean that some do not truant or that we do not enforce against parents to ensure that they comply with the requirement to ensure that their children receive a proper education, be it at home or at school. It is not necessarily helpful to speculate on how that translates into numbers.

My hon. Friend the Under-Secretary told me that earlier today she met the Education Minister for the Netherlands, which brought in these measures two years ago. The experience there so far is that there is little need for enforcement. As we have said, the introduction of compulsion has changed the system. People are not asked whether they will stay on after 16, but what they will do in terms of their learning and education after that age. That is exactly the transformation that we seek to achieve.

I hope that, like his colleagues in the other place, the hon. Gentleman will support the changes that we have made. I was very grateful to Baroness Morris of Bolton for thanking not only me, but

“the Bill team for its help throughout the Bill but particularly on this issue, and the officials at the Ministry of Justice for their time and patience in reaching this conclusion.”—[Official Report, House of Lords, 11 November 2008; Vol. 705, c. 556.]

She was very gracious in her remarks as she decided no longer to oppose our changes. However, if the Opposition feel as strongly about these provisions as the hon. Member for Beverley and Holderness (Mr. Stuart) does, they should vote against them today.

Questions were also asked about the level of fines and fees and the issue of reasonable excuse. The fine in the youth court on conviction would be a level 1 fine, and the maximum is currently £200, but it is determined according to means in each individual case—one of the advantages of the youth court route. The fixed penalty notice cannot be more than the maximum fine, but we have said that it would be significantly less. Indeed, when my right hon. Friend the Secretary of State for Health was responsible for education, he said—on the publication of the Green Paper—that the figure would be around £50 in today’s prices, and I do not disagree with that.

On the definition of reasonable excuse, I wrote to the hon. Member for Yeovil (Mr. Laws) on 13 February, copying the letter to members of the Committee, to provide some further definition of reasonable excuse. I listed seven different examples of what that might mean in practice:

“If a young person is homeless, this could prevent them from participating in learning until they have a permanent residence and a more stable home life.

Health problems, whether temporary illness, long term disability or ongoing mental health issues, could prevent a young person from participating either for a short time or for a longer period, depending on the nature of the health problem, its effects and the kind of treatment required.

Where a young person has addiction problems they may be unable to participate until they have successfully completed treatment for these problems.

Fourthly, when a young person has secured a place on a course but it does not start until the next month or the next term, they would have a reason for not participating in the meantime.

After giving birth a young mother will need time to recover (for mothers of compulsory school age, guidance sets out that the normal period of time is a maximum of 18 weeks) and would not be expected to participate until appropriate learning provision and access to suitable childcare had been arranged.

Where a young person has caring responsibilities, they may not be able to participate, or participate for as many hours as we would otherwise expect, until alternative care or learning provision that fits with those caring responsibilities is in place.”

The hon. Gentleman mentioned young people with special educational needs. The final example is

“if a particular learning difficulty has been identified and the right support to address it is not yet secured or in place, it would be reasonable to expect that the young person could not begin their learning programme until that support was in place.”

I hope that it is helpful to have that level of detail on the record.

It is extremely helpful to have those details supplied on the record. I asked the question so that the Minister could do just that. I wonder whether it would have been appropriate—it might still be appropriate—to put those matters on the face of the Bill, or at least to summarise them on the face of the Bill. I suspect that if they had done so the Government might have anticipated some of the concerns that have been expressed in the House and beyond this place.

As an experienced Member of the House, the hon. Gentleman will know that notions of reasonableness are very common in legislation. It is important, I think, to leave flexibility for courts, attendance panels and so on to interpret reasonableness in the normal way. As soon as I start to specify details on the face of the Bill, and as soon as the House agrees to that, it creates an inflexibility that is not helpful for young people. I know that he is motivated by the wish to be helpful to and supportive of young people.

I apologise for interrupting the Minister again, but he has helpfully said that SEN might provide the material for a reasonable excuse. My specific point was about the role of special educational needs, and particularly statements, in the learning agreements. The attendance process is to be informed by agreements so, given that that will require a definition of need, will special educational needs form part of the contract?

The agreement, as it is an agreement, would be personalised. It would be individual to that learner and be in accordance with their needs. If their needs were set out in a statement of special educational needs, the learning and support agreement would clearly have to reflect that. I hope that that is helpful.

The hon. Member for Yeovil (Mr. Laws) asked a number of questions about learning and support contracts. I would say to him—the point reflects again on the subject of young people with special educational needs—that the process, in the end, is more important than the document. I think everyone agrees that it is important that there is negotiation and that the young person is involved so that both parties—the commissioner of the education in the form of the local authority and the recipient of that learning and support—understand the deal.

Our amendment puts emphasis on what has to happen, while my recollection of the hon. Gentleman’s amendment was that there was more emphasis on signing the document. I know that that distinction appears to be like dancing on the head of a pin, but it is quite important. The hon. Gentleman asked whether we would use the document before enforcement, and whether enforcement would never be used when a person had unmet support needs.

The nub of it was whether the learning and support agreement could be an alternative to education and training for a period of time or whether it had to take place at the same time as the education and training requirement is provided.

I think that it is possible for a local authority, if someone has particular support needs, to sequence things so that those support needs are addressed. For example, if someone was suffering from addiction and it would clearly be impractical and inappropriate to compel them to try to take part in some kind of learning until the addiction problems had been dealt with and treated, the learning and support agreement could specify the sequence of support followed by learning. I hope that that helps the hon. Gentleman. I referred in my opening remarks to activity agreements, and to some extent they reflect that scenario.

The hon. Gentleman asked about reporting. I think that I said that that would happen by 2016, so that is the time scale. I also said that we wanted to be able to reflect on the experience of the first year, so we are saying that there would be a report in 2016. He asked whether anything would stop a fundamental review following that review. Clearly, the review would be open-minded, and so if things were found that did not work, we would have to set out how we would put them right.

The hon. Member for Castle Point (Bob Spink) asked many fundamental questions about the Bill that we debated at appropriate length on Second Reading, in Committee and on Report, and equally so in the other place. I am sure that he will excuse me for a relatively brief response because the arguments have been put time and again. The costs to which he referred are in the impact assessment, which was updated after the Bill’s passage through the other place, so he can read up on them. Although the economic costs of raising the participation age over and above 90 per cent. are about £766 million annually per cohort, the total economic benefit is projected as more than £1.5 billion for each cohort of young people to whom the measure applies. In essence, the calculation of a net economic benefit of £2.4 billion for a £766 million cost is at the heart of why we are introducing the measure: so I reiterate the point, it substantially enhances the life chances of a young person to carry on learning until the age of 18, and to achieve at least level 2 qualifications, ideally level 3 and beyond, but it is also for the good of the nation. If we are to compete economically with the newly emergent economies, as Sandy Leitch pointed out in his report a couple of years ago, we need to raise the general level of skills in the UK. Keeping people learning is part of our effort to raise the level of skills.

I have to tell the hon. Gentleman and his party, of which he is the only representative in this place, that we have to make the difficult decision—it is not easy—of reinforcing with compulsion all the engagement, the new qualifications and everything else we are doing to encourage, cajole and persuade young people to carry on learning until the age of 18. If we do not make that decision, when will we reach the position of close to 100 per cent. participating? That is what young people need. Those who do not participate are the ones who most need to participate. It is a basic issue of social justice that the most disadvantaged are the most unlikely to participate. If we are not serious enough to support compulsion, when will that participation happen? With all due respect, I put it to the hon. Gentleman and to his friend, as he described the hon. Member for Beverley and Holderness (Mr. Stuart), that unless they are serious about compulsion and unless they support these enforcement measures, it ain’t gonna happen for the young people about whom the hon. Member for Broxbourne (Mr. Walker) spoke so passionately and eloquently on Third Reading and whom the Bill will serve.

I noted the comments of the hon. Member for Beverley and Holderness—that he regards the Bill as an attack on liberty. Obviously, it is unfortunate that he regards the Bill in that way and I hope it is not the view of the whole of his party, because I think the Bill is an incredibly progressive piece of legislation for all the reasons I have just set out. The hon. Gentleman tried to talk down diplomas, a bit like his hon. Friend the Member for Surrey Heath (Michael Gove), but we have deliberately started on the basis of quality, not quantity. The hon. Member for Beverley and Holderness and I had a discussion in the Corridor a couple of weeks ago about whether he had time to see diplomas being taught and learned. At that point, he had not had time to do so. I do not know whether he has had time since then to see how excited young people are and how much teachers enjoy teaching diplomas, but I commend him to do so. We look forward to the numbers studying diplomas expanding on the basis of quality until the entitlement in 2013.

The Minister is right to say that we all aspire for the diploma to be successful. That does not stop us, as responsible Members of Parliament, noticing what is happening with them. There has been very low take-up; in fact, in the East Riding of Yorkshire one would struggle to find many students who are undertaking a diploma. That is the issue. We have to look at the world as it is. We need reassurance from the Minister that he can take steps to rectify the issue.

Certainly, we are taking steps to ensure that diplomas are a good option for young people right from the word ‘go’, that they are taught, and will continue to be taught, on the basis of quality, and that they will continue to be appropriate for young people. When I have visited and talked to people studying for a diploma, and their teachers, I have heard nothing but praise for how well they are working in practice.

Has the Minister not seen the recent comments of the president of the Association of Colleges, who paints a rather different picture?

Clearly, one or two individuals will have a different view. The Under-Secretary of State for Children, Schools and Families, my hon. Friend the Member for Portsmouth, North (Sarah McCarthy-Fry), has discussed those comments with representatives of the AOC, with which we continue to have a constructive and helpful relationship.

Turning to the issues of those not in education, employment or training, the Bill clearly seeks to engage young people in their learning. The percentage of NEETS aged 18 to 25 is broadly stable, and has been for the past 10 years. We would like to do better than that. Among 16 to 18-year-olds, whom the Bill particularly addresses, the number of NEETS is falling, and I am sure that the hon. Member for Beverley and Holderness welcomes that.

We are continuing to expand apprenticeships. I do not think that they should be written off as lightly as he hon. Gentleman likes to do. We discussed them at some length when he questioned me as I gave evidence to the Children, Schools and Families Committee. He asked about gap years; the Bill is pretty clear on that. The Bill applies to people who are resident in England. If someone spends their gap year in this country, the Bill applies to them. If they go abroad on their gap year, it does not.

Well, my daughter went on an excellent gap year to Mauritania, and she got an awful lot out of it. She learned a huge amount. I would not want to do anything to prevent people from being able to enjoy such an experience.

The children of Ministers and other people on high incomes will find it much easier to have a gap year abroad. Those on low incomes may find it more difficult. Is the Minister not a little uncomfortable about the fact that a person who wanted to spend a gap year in this country could not do so without risking being criminalised by the Bill?

Yes, some are, but if a person is under 18 and resident in this country, they will have to comply with the Bill and complete 280 guided learning hours, if they had not got to level 3. Clearly, in most cases, they would have got to level 3 before contemplating a gap year. Given all those scenarios, the hon. Gentleman’s point does not feature as a great worry.

I regret that due to proceedings on other Government legislation, I was unable to hear my right hon. Friend’s opening remarks. Some of my constituents combine a gap year with achieving level 3. Two weeks ago, I was lucky enough to visit Brighton Swimming Teachers Centre in Portslade. There, I met two young people who had achieved level 3 in swimming instruction, and who intended to go on to level 4 in their gap year, while earning money as swimming instructors.

Excellent. I am pleased to hear that. I think that it was in Portslade, in my hon. Friend’s constituency, where I visited one of the most excellent examples of a primary school encouraging young people to read. I would commend it to the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb), because I know of his passionate interest in the subject. I think that I have responded to the points that have been made. I hope that the House will support the amendments made in the other place, but clearly it is up to those who feel passionately that we are doing the wrong thing to vote against them.

Lords amendment agreed to.

Lords amendments Nos. 25 to 40 agreed to [some with Special Entry].

Clause 80

The register

Lords amendment: No. 41.

With this we may discuss Lords amendments Nos. 42 to 166, 192 to 206, 212 and 215.

This group of Government amendments to chapters 1 and 2 of part 4 of the Bill put into effect the commitment made in another place that the Government would no longer seek to move responsibility for the registration, regulation and monitoring of independent educational institutions and non-maintained special schools from the Secretary of State to Ofsted. As Lord Goodlad would put it, it is a case of audi alteram partem, I think. This elegant three-point turn is a demonstration of the desire felt by my noble Friends and me to respond to reasoned argument during the passage of the Bill.

The Government have decided to implement the change to the Bill through a large number of amendments to part 4, rather than by deleting part 4 it in its entirety and relying on the regulatory regime for independent schools set out in chapter 10 of the Education Act 2002, and on the regime for non-maintained special schools set out in section 342 of the Education Act 1996.

Will the Minister tell us how the reasoned argument changed between the Commons Committee stage and consideration in the Lords?

It changed in the eloquence with which it was put. The changes are being made because chapter 1 of part 4 of the Bill restates the entire regulatory regime for independent schools. The change also offers the opportunity to ensure that protections are in place for children in the growing independent part-time sector. As part of that, part 4 makes a number of drafting and policy improvements. To take one example, the Bill introduces new appeal rights for proprietors of independent educational institutions and non-maintained special schools against decisions by the regulator, such as any decision to refuse an application for initial registration from a new institution.

The amendments in this group fall into three broad categories. The vast majority of them affect the three-point manoeuvre in respect of the transfer of functions from the Secretary of State to the chief inspector. Many of them simply replace the words “Chief Inspector” with the words “Secretary of State”. Others make consequential changes; amendments Nos. 59 and 60, for example, replace the power for the chief inspector to inspect an institution when an application for approval of a material change is made with a power for the Secretary of State, as the registration authority, to direct the chief inspector to carry out such an inspection.

The second set of changes brought about by the amendments do not relate to commitments made in another place. Amendments Nos. 131, 138, 162, 164 and 196 are minor and technical amendments to change the tribunal that will hear appeals against decisions made by the Secretary of State, and in certain cases, justices of the peace. Clause 110(5) states:

“’the Tribunal’ means the tribunal established under section 9 of the Protection of Children Act 1999”.

However, since the original drafting of the Bill, the Tribunals, Courts and Enforcement Act 2007, which we discussed earlier, has come into force. That Act consolidated the appeal and tribunal landscape, and regulations made under it will set out revised arrangements for tribunal hearings, so that appeals brought by proprietors of independent schools—and, through this Bill, proprietors of independent educational institutions and non-maintained special schools—will be heard by the health, education and social care chamber of the first-tier tribunal. I know that that answers one of the questions that the hon. Member for Bognor Regis and Littlehampton was bound to ask. The amendments will ensure that appeals are brought to the appropriate tribunal.

The final set of amendments in this group—Nos. 150 to 152—put in place transitional arrangements to enable a smooth transition between the existing regulatory regime, set out in chapter 10 of the Education Act 2002, and the new regime in the Bill. Amendment No. 150 ensures that any actions commenced under the current regime can continue, unaffected, when the new legislation comes into force. That will avoid duplication of effort and ensure that standards are not put at risk by new proceedings having to be started against institutions that are not meeting the statutory requirements. Amendment No. 151 ensures that the 2,400 or so existing independent schools do not have to be re-registered when the Bill becomes law, and it allows the Secretary of State to waive inspection fees so that institutions are not required to pay fees twice.

Lastly, amendment No. 152 ensures that directions prohibiting unsuitable people from participating in the management of independent educational institutions can be carried forward, as are any appeals, or reviews of directions, that are in progress.

I hope that hon. Members will agree that these amendments meet all the concerns about part 4 that were raised first in this place and then in the other place, and will therefore join the Government in agreeing to them.

As the Minister said, the Lords amendments reverse the provisions in the Bill that transfer registration and regulation of independent schools from the Department for Children, Schools and Families to Ofsted. That is welcome. We argued against that transfer in Committee, and my noble Friend Lady Morris continued the battle in another place. Her powers of persuasion were obviously much stronger than my own and resulted in the amendments tabled on Report in the other place that we are now being asked to agree to.

The policy behind the provisions in part 4 that sought to make the transfer have been fraught with error and poor policy making right from the start, even during the consultation process. The regulatory impact statement said, erroneously:

“Independent schools will benefit from only dealing with Ofsted.”

However, half of independent schools are inspected not by Ofsted but by the Independent Schools Inspectorate. The ISI inspects schools that teach about 80 per cent. of pupils educated in the independent sector, so those schools will not deal only with Ofsted. That is an extraordinary factual error of understanding that no doubt contributed to the original decision to move the registration and regulation of independent schools to Ofsted. The original consultation document was also materially wrong. It stated at paragraph 2.23 that the reason for the transfer

“has been prompted by the transfer of boarding school and children’s home registration and regulation to Ofsted from CSCI ”—

the Commission for Social Care Inspection—

“from April 2007.”

That is wrong, too. Ofsted does not register or regulate boarding accommodation—that stays with the Secretary of State. What transferred at that point from CSCI to Ofsted was the inspection of boarding provision. Again, this is not a minor drafting error—it goes to the root of the Government’s understanding of how these activities are carried out, and it undoubtedly led to the policy that the Minister is now seeking to reverse.

The ISI and the Independent Schools Council were strongly opposed to the transfer. They have very good relations with the Department’s officials in the independent education and boarding team—they are able to pick up the phone to them when issues arise, and that has worked well for many years. They also feel strongly that the role of inspection should be separate from that of registration and regulation, particularly as there may be disputes over how an inspectorate interprets the regulations with which they are checking compliance. Given that there was no credible policy imperative driving the change, the only reason left was that of efficiency, or alleged efficiency.

During the Committee’s evidence sessions, I asked officials about the extent of such purported savings. One senior official said:

“We are still discussing costs with the Department”.

She went on to say:

“We are still working on the exact numbers. I am not quite sure exactly what numbers we will need to transfer to us, to do that work.”––[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 95, Q223-225.]

Another official from Ofsted said confidently that he thought that Ofsted could do the work with between seven and 12 people. The Minister went even further when he said:

“I anticipate significant savings. I cannot predict whether we will move from 18.2 members of staff to approximately 10, but savings will be made”.––[Official Report, Education and Skills Public Bill Committee, 28 February 2008; c. 784.]

Contrast those statements with the words of Lord Adonis in another place six months later:

“having taken a long, hard look at the best estimates that we have of the cost savings from the proposed transfer of functions to Ofsted and balanced those against the potential disruption to the sector that would be caused by the transfer, I have concluded that the case for change is not compelling.”—[Official Report, House of Lords, 21 July 2008; Vol. 703, c. 1598.]

That was a very welcome change of heart by a much-missed Minister. I wish that Ministers in this House, and Ofsted officials, would take the same assiduous approach to calculating possible cost savings before announcing that the policy would save money. We need less bluster and more facts from the Government.

Having said all that, better the sinner that repenteth. This is a welcome U-turn that we have been calling for in both Houses. As is the way of this Government, they put through their change of mind in the other place instead of here. That is partly down to the powers of persuasion of my noble Friend Lady Morris and partly due to the Government’s mistaken belief that a U-turn in the other place is less noticeable than one here.

These Lords amendments take out a large proportion of part 4 by replacing the words “chief inspector” with “Secretary of State”, and they constitute a large proportion of the amendments that we are discussing. They do not remove all of part 4, however, which will dismay some people, particularly those who teach their children at home. Part 4 gives a definition of an independent educational institution because the Government wanted to ensure that a small number of independent schools that provided only part-time education were properly regulated. Through parliamentary questions and confirmation by the Minister during the debate in Committee, such provision turned out to be just four schools.

Education Otherwise, which represents tens of thousands of parents who educate their children at home—an increasing phenomenon as parents worry about standards of behaviour in too many of our schools—said that these provisions might inadvertently catch informal arrangements to educate home-educated children using shared teachers, who have a particular specialism, in someone’s home. In Committee, the Minister confirmed that the four institutions that he intended to be caught by the clause were Tyndale academy, Kids Company, Headstart Early Learning Centre and The Children’s Garden. It is rather alarming, in terms of competence of policy making and administration, that the Government now say that that figure is not four but 1,100. In a letter to my noble Friend Lady Morris on 7 November, the Minister, Lady Morgan, wrote:

“When the Education and Skills Bill was introduced, we were aware of only four part-time providers…as more evidence emerged of local authorities increasingly using private sector and voluntary providers…an estimated 1,100 providers…might need to register as independent educational institutions”.

What is astonishing is the phrase, “as more evidence emerged”. It appears that the Government responsible for education in this country were unaware until this autumn that local authorities around the country were using at least 1,100 private education providers for alternative pupil referral-type education. It would be helpful to our discussions if the Minister could explain that confusion.

I want to focus on amendments Nos. 150 and 152. Amendment No. 150 inserts a new clause entitled “Continuity of the law”. I would like some reassurance from the Minister about what appears to be a rather catch-all transitional provision that could allow those making legislation to cover their tracks and say, “This transitional provision is sufficient for all of us retrospectively to agree that everything’s all right.”

Amendment No. 152 inserts a new clause entitled “Prohibition on participation in management”. The Minister mentioned it in his earlier remarks about mischief regarding unsuitable persons and maintaining existing protections in that regard. As I read it, the regulations referred to in the new clause will be made under the terms of that clause. I hope that there will be no hiatus between the safeguards offered by the current protection against unsuitable persons and the introduction of the new clause, which would allow for such protections to be continued but would not in itself introduce them, instead relying on regulations to be made under that clause. I seek assurances from the Minister that the timing will give us continuity of protection.

I would like briefly to welcome the 180-degree U-turn in Government policy reflected by the amendments, and to pay tribute to my colleagues in another place who were more convincing than the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) and myself.

According to the Government’s explanation of the amendments, they decided that the case for changing from the status quo was not compelling. As the hon. Member for Bognor Regis and Littlehampton mentioned, I would have thought that the evidence we took in the consultation sessions at the beginning of the Committee’s proceedings was fairly clear in making the argument against those changes given that a number of outside bodies gave evidence to say that the changes were unnecessary.

As well as drawing attention to this satisfactory U-turn, can the Minister explain what changes he hopes to implement to improve the communication between his Department and the independent schools sector? We have heard from the hon. Member for Bognor Regis and Littlehampton that that communication has been extremely effective up until now, but it is clear that there are major weaknesses in such communication. Not only was part of the sector taken by surprise by the changes, but if they had been consulted on in a more serious manner, we might have avoided the protracted debates and time-consuming processes that we have gone through in recent months.

This brief debate was an opportunity for the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) to make the points that I thought he would make about our small change of heart in this policy area. I am grateful for his warm comments on my noble Friend Lord Adonis. Naturally, as the Minister with responsibility for the Bill, I discuss with Ministers who have responsibility for other policy areas—such as independent schools—debates in the Commons, so the words of the hon. Gentleman and those of the hon. Member for Yeovil (Mr. Laws) were not in vain during those debates because I reported their comments to my noble Friend. I justified the policy at the time, and he made the decision in the Lords, having listened to further debate, that the case for change was not as compelling as we previously thought.

The hon. Member for Bognor Regis and Littlehampton asked about home schooling and part-time providers, who are mostly engaged in alternative provision. We respect the right of parents to educate their children at home if they so wish, and as I said a number of times in Committee, the family home is not an educational institution and will not fall under the definition of institutions regulated under the Bill. Children educated alone by a parent at all times, regardless of location, will be regarded as those receiving home education and there would be no need to register.

Given that all children are entitled to learn in a safe environment, the state has a responsibility to make sure that minimum standards are met if they are not supervised by their parents so that they learn in safe premises, where child welfare and protection standards are met and where their education meets minimum standards. Where home education takes place in a pooled setting, and the child’s education is not supervised by the parent, it is right that such provision should be registered.

The hon. Gentleman asked about part-time providers, and his recollection is right. When we initially took the Bill through the Commons, we were talking about four part-time providers. The work we then did through a telephone survey—it is not desperately authoritative—over the summer reinforces the need for registration. We spoke to just under 50 local authorities following the “Back on Track” White Paper about alternative provision and found that there may be up to 1,100 providers that need to register. I stress to the hon. Gentleman and the House that the figure is up to 1,100 providers—I estimate the figure to be between 130 and 1,100. It was not the most authoritative survey, but that figure reinforces the need for some sort of regulation. It is clear that the likely size of this educational sector makes it more, not less, important that coherent statutory standards are applied to those providers. The 135,000 young people each year who are not educated in schools comprise some of the most vulnerable in society and it is right that the settings in which they are educated should be properly registered and regulated.

Am I wrong to be astonished that the Minister’s Department did not know that 150 local authorities were using up to 1,100 private sector part-time providers to provide alternative education in their areas?

Local authorities have a large amount of delegated freedoms, contrary to the narrative we sometimes hear in this place. Where young people have dropped out of, or been excluded from, mainstream education, local authorities have been using whatever providers they deem fit to provide alternative provision for those young people. I was surprised that the number was as high as the survey might have revealed, but that has reinforced the need to register and to regulate.

I agree with my right hon. Friend about the need for registration, but is the lack of state provision in special establishments the result of closures in the past, when we rushed too quickly for an all-inclusive approach to education for children who need special education in special establishments?

I am not sure that it is a result of a rush to closure or that we need to enter into the debate on inclusion for children with special educational needs. Such alternative provision is often required for those with behavioural problems; there would obviously be a high percentage of pupils with SEN, but the principal issue relates to those whose behavioural needs could not be dealt with in mainstream education, meaning that some other form of provision had to be commissioned.

I am digressing somewhat from the debate, but I wanted to make a point that I have made before to my right hon. Friend. Would it not be sensible to look seriously at the idea of local authorities forming consortiums that could provide specialist establishments in the public sector for children with very special needs, given that almost all of us have come across such children?

My hon. Friend follows such matters closely, and he will know that as a result of the White Paper we published this year, we have focused a lot more on these issues. We are interested in innovative approaches to improving provision, and we want to raise the overall quality of provision for those young people. It is precisely because of the measures we are taking to raise the participation age that we must not give up on any young person, even when they have made mistakes. We are ensuring that local authorities commission the right provision to get those people back on track.

Does not the debate reveal that a coach and horses has been driven through the Minister’s policy? The White Paper, “Back on Track”, to which he referred, was published in May 2008. At that point, I understand that he had no idea that local authorities were using 1,100 private sector alternative education providers, but he had already formed what he thought would be the policy to improve alternative provision in local authority areas. In his letter of 4 September, he said that his telephone survey was carried out between early June and early July, but he had already formulated his policy in May, before he acquired that crucial piece of information about alternative education in this country.

The White Paper was drawn up in the context of ensuring that we improved the quality of alternative provision. How that provision was registered came to light in the summer as we sought to implement the White Paper and as we prepared for the announcement of 12 pilots in October in order to develop new and innovative forms of alternative provision. I make no apology for wanting to drive forward whatever sort of vehicle the hon. Gentleman may propose to ensure that vulnerable young people are educated in registered provision that can be properly inspected, and to ensure that that education is of the appropriate quality.

My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) raised some issues about transitional provisions and the amendments that deal with them. The new clause that amendment No. 150 would insert are intended to provide for the seamless continuity of the law, a phrase that my hon. Friend used about actions begun but not completed under the existing regulatory regime. The purpose is to prevent unnecessary delays and complications in dealing with on-going cases from arising. Clause 151 contains a power to make specific transitional provisions, if necessary. A specific transitional provision would trump the general continuity provision in amendment No. 150.

Amendment No. 151 is intended to provide for the seamless continuity of the register of independent schools in England. The existing register is kept under section 158 of the Education Act 2002. Clause 80 provides for the new register of independent educational institutions, which will include the existing register and any part-time providers. As we have just discussed, they will be registered under clause 77.

My hon. Friend asked about an hiatus with respect to amendment No. 152. I can assure him that there will be no hiatus. As soon as the Bill comes into force, the amendment will allow us to ensure that that transfer of responsibility takes place. We will lay the regulations before the new legislative regime comes into force. Amendment No. 150(6) would grant the power to make the detailed relevant provision. I hope that I have answered my hon. Friend’s questions.

I hope that my other comments have dealt with the queries of the hon. Member for Yeovil (Mr. Laws). I wish to add that the relationship with the Independent Schools Council is important. It inspects many independent schools—

Indeed. The Independent Schools Council represents many independent schools. We have a good relationship with many independent schools and I was pleased to visit, for example, Epsom college, last week to mark its sponsorship of Lambeth academy. It joins the United Learning Trust as a sponsor of Lambeth academy and will help the academy to develop its sixth form. That is a positive step for independent schools working with state-maintained schools.

Is the Minister confident that communication between the Department and the independent schools groups is strong enough to avoid problems in future?

We have held discussions with the Independent Schools Council and reached agreement on the three main concerns that it has raised with us. To avoid doubt, I will reiterate the commitments.

First, we have agreed that regulations under the new standard for leadership and management in clause 79 will be modelled on the Independent Schools Inspectorate’s criteria for judging leadership and management in its current inspections framework.

Secondly, in abolishing the category of schools approved under section 347 of the Education Act 1996, we are clear that we do not want to introduce extra bureaucracy as a result of a deregulatory measure. We are therefore committed to publishing a central list of all independent schools that are registered as being specially organised to provide for children with special educational needs, as the Independent Schools Council has requested. In doing that, we look to the possibility of enhancing the information available to parents and local authorities that is contained on the list.

Thirdly, to discourage local authorities from additional red tape for schools, we will publish strengthened and clear guidance, on which we will consult. We will certainly consult bodies that represent independent schools. Indeed, throughout the implementation of the changes, the Department will continue to work closely with the sector and the schools affected by the repeal of section 347.

I hope that we have had sufficient discussion for the House to approve the amendments.

Lords amendment agreed to.

Lords amendments Nos. 42 to 166 agreed to[some with Special Entry].

Clause 137

Meaning of “sixth form education” etc

Lords amendment: No. 167.

With this it will be convenient to discuss Lords amendments Nos. 180, 185, 186, 188, 190, 207 and 213.

The amendment is about school admissions. Whenever a new code on school admissions is issued, it must be consulted on first. The amendment confirms, for the avoidance of doubt, that the requirement to consult will be satisfied by consulting about a draft code that refers to provisions in the measure that are not yet law. That will allow the codes to remain current and relevant, and reduce the overall burden of consultation on audiences such as schools and local authorities.

The remainder of the amendments in the group are technical or consequential. Amendments Nos. 185, 186 and 188 relate to the commencement of the school admissions provisions by the Welsh Ministers. The amendments make a slight change to the power of the Welsh Ministers to commence paragraph 58 of schedule 1, so that it is in line with the remainder of their commencement powers.

Amendment No. 180 makes the meaning of “prescribed” and “regulations” clearer throughout the measure. For the avoidance of doubt, it is better for those terms to be set out in the Bill. Amendment No. 190 will make it clearer in drafting that, apart from subsections (1) to (3) of clause 154, the Secretary of State will bring the remaining provisions into force by order.

Amendments Nos. 207 and 213 provide consequential amendments to the Welfare Reform and Pensions Act 1999. They ensure that social security information may be shared between the Department for Work and Pensions and a county council, when that county council exercises social security functions for a young person for whom it is also required to provide support via the Connexions services. Regulations made under that social security legislation define a “local authority” by reference to the Social Security Administration Act 1992. That definition of “local authority” does not include a county council of England. Therefore, but for the amendments, the current data sharing could not continue when a county council exercised Connexions functions.

The amendments are purely technical, resulting from the transfer of the Connexions services to the local authority. They enable current practices to continue, and I therefore commend them to hon. Members.

I welcome the Under-Secretary to her new position and to the Dispatch Box to discuss the final stages of the Bill. She missed many months of interesting debate—

I do not remember that. It was many months ago and I have forgotten.

The amendment typifies the Labour Government’s obsession with admissions. As my hon. Friend the Member for Surrey Heath (Michael Gove) said on Report:

“Unfortunately, there is still an old Labour, socialist approach to the question of admissions… It is the Secretary of State’s belief that what really matters is manipulating access to a limited number of good school places, instead of expanding their number overall. If only he would commit as much intellectual energy to generating more good school places as he does to the micro-management of their allocation, this country would be in a better place”.—[Official Report, 13 May 2008; Vol. 475, c. 1239.]

Conservative Members believe in a fair and clear admissions system and we therefore support the concept of an admissions code.

However, our priority is to increase the number of good schools by making it easier for new providers to establish new schools, thereby giving parents a genuine choice of school for their children, focusing on raising academic and behavioural standards, and ensuring that the teaching of reading in reception class is effective. By contrast, the Government have devoted huge amounts of effort to continual changes to the admissions code and pillorying faith schools.

In the final stages of the Bill’s passage, the Government tabled two dozen new clauses and amendments to the School Standards and Framework Act 1998 about admissions. It was all very last minute and rushed, without the usual Committee stage scrutiny and consultation. Now the Government seek approval of an amendment passed in another place to allow the public consultation, which closed in October, on the new draft admissions code to be valid, notwithstanding the fact that the draft code is based on the new clauses, which have not yet received Royal Assent. That is all indicative of an over-ideological obsession with admissions, which is so characteristic of the Government in general and the Minister’s boss, the Secretary of State, in particular.

The truth is that what determines a good school is not its intake, but its leadership and the quality of teaching. I can take hon. Members to schools in the most deprived parts of our inner cities and with every possible disadvantage that are safe, secure and highly successful and which have high levels of academic achievement. By contrast, there are many schools in leafy suburbs where the take-up of free school meals is well below the national average and where behaviour is out of control and academic standards are poor.

I could give the hon. Gentleman a list if he wishes. I recommend that he go to Mossbourne academy in Hackney, for example, where 50 per cent. of the children qualify for free school meals and 40 per cent. speak English as a second language, and where he will see exemplary behaviour.

The hon. Gentleman mentioned the leafy suburbs, so could he please give me a list for Nottinghamshire?

I am not going to start criticising schools in leafy suburbs, but there are many schools across the country which have few indicators of deprivation, but which are not achieving as well as Mossbourne academy in Hackney. The vast majority of comprehensive schools have between 10 and 21 per cent. of pupils on free school meals. Simply moving children around so that every school has the national average of 14 per cent. of pupils qualifying for free school meals would not make the slightest difference to the quality of education in those schools. As I have said, one of the best comprehensives in the country has half its children qualifying for free school meals. The objective of a Conservative Government would be to concentrate on standards of behaviour, assessing and streaming, school uniform and high academic achievement.

Is the hon. Gentleman saying that he would remove or amend any part of the existing code of admissions?

The existing code does need amending and simplifying. Although we certainly agree with the principle of having an admissions code, we believe that it should be much simpler and clearer and that it should not be revised every year. That just confuses schools and parents.

Finally, I want to say a few words about Lords amendments Nos. 207 and 213. They have amended the information-sharing provisions in the Bill, so that county councils can be included in the list of public bodies that can share confidential information about a young person, in order to assist those public bodies in enforcing or implementing the duty to participate. I do not want to reprise the extensive debate that we had in Committee about the rights and wrongs of information concerning a young person’s health, police record, academic achievement or social security being distributed among a range of public bodies, from local authorities to Connexions. However, I still believe that there are some confidentiality issues at stake, as well as some important human rights implications, which will undoubtedly surface when those provisions begin to bite.

The hon. Member for Hendon (Mr. Dismore), who chairs the Joint Committee on Human Rights, has raised his Committee’s concerns about those provisions. He says:

“The Bill contains a number of information sharing provisions in Parts 1-4. These raise potential human rights issues, notably the right to respect for private and family life”,

and asks what

“safeguards…would be in place to ensure their compatibility”

with article 8 of the European convention on human rights. The Children’s Rights Alliance for England has also raised its concerns. It conducted a survey of young people, who expressed the view that if children think that adults are going to share information about them with other people, they will stop confiding in adults altogether.

The Minister for Schools and Learners said in Committee that the Government would set out in guidance how the measure would be used. Could the Minister replying to this debate tell the House the current status of that guidance? Is it drafted yet? If so, can we see it? If not, when does she expect to be able to publish it in draft form?

I want to speak briefly about admissions, which concern me and, I am sure, many other hon. Members. I agree with the Opposition spokesman about the importance of leadership and a school’s ethos. He is absolutely correct. In my constituency, we have some first-rate schools and some first-rate head teachers doing a wonderful job, often with children who have some disadvantages, such as speaking English as a second language and other factors.

I would argue, however, that the problem arose because of the Conservatives, who introduced the idea of parental choice. That led to hierarchies of schools, from schools with a concentration of the less able, as it were, from poorer backgrounds to schools with the most able, from middle-class, academic backgrounds. That has happened in my constituency, as it has surely happened elsewhere too, and it has not helped. It has been socially divisive and has also meant that schools with a high proportion of those from disadvantaged backgrounds can easily say, “It’s not the teaching or the leadership; it’s just the children in our schools.”

I do not accept that argument for a moment, but if schools had balanced populations within them, we could draw genuine comparisons between them. If every school had the same range of pupils and if one school was doing well and another badly, we would know that that was to do with what was being done in those schools. The problem arose from the idea of parental choice and the hierarchy of secondary schools in particular, which has arisen in my constituency and many others throughout the country.

There are other issues to do with admissions that I hope my hon. Friend the Minister will consider. I am sure she is aware not only that people want to be admitted to what are seen as the target schools, but that sometimes schools are over-subscribed. For instance, there is a shortage of sixth-form places in my constituency. Some youngsters, particularly those who arrive late, over the summer, find it almost impossible to find a sixth-form place, because there are not enough.

I hope that my hon. Friend is looking into how we can ensure that that lack of provision does not arise, so that every child, at whatever level, but particularly at sixth form, can study the subjects they choose and with good-quality teaching in a nearby establishment. That concern has arisen in my constituency and I am sure that there are other hon. Members in a similar situation. I therefore hope that my hon. Friend will look into those problems, too.

I agree with the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) that we want every school to be a good school and that leadership is important. There is still some way to go, but the Government have already gone a long way on that. One of the ways that we have done so is by providing leadership training and by funding schools better, because pupils will generally study a bit better in better buildings—the important thing is staff and ethos, but buildings help, too. However, I live in a deprived part of the country, and if the hon. Gentleman thinks that input into a school does not affect output, which seemed to be the import of his remarks, he is living in a very different world from me.

The hon. Gentleman decried the need to change the admissions code so frequently and I entirely agree with him. It is most unfortunate that we have a complex admissions code and that it keeps being revised. However, the driver for those changes is that some schools—a minority, but a significant minority—keep trying to get round the admissions code. That point is not based on anecdotal evidence, such as that which he produced about how good one academy in London is; it is based on a survey that the Government conducted to find out whether schools were complying with the admissions code. Surprise, surprise, that survey sadly found that too many schools, albeit a minority, were not complying with the code. The Government are therefore unfortunately in the position of either letting schools ignore the admissions code or enforcing it and closing the loopholes that a minority of schools seek to find within it—

Order. I wonder whether the hon. Gentleman could relate his remarks to the group of amendments that we are currently discussing, which begins with Lords amendment No. 167.

I am obliged to you, Madam Deputy Speaker. Perhaps I will leave my remarks at that for the moment.

We have had an interesting and wide-ranging debate, which you acknowledged in your remark, Madam Deputy Speaker. I would like to place it on record that we certainly want all schools to be good schools. That is the aim of the Government. However, we also want a fair admissions code. Indeed, we are amending the admissions code in the Bill to protect looked-after children. I would hope that the objections to revising the admissions code, which the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) raised, do not extend to not helping looked-after children. We all acknowledge that they have a tough time and that we should do all we can to ensure that they have decent school provision.

We have been consulting on our draft admissions code, and it is our ambition to be able to put it into practice from September 2010 to ensure at the earliest possible opportunity that the revisions to ensure a fair code come into place. If we did not agree to the amendment, the admissions code would not come into being until September 2011.

The hon. Member for Bognor Regis and Littlehampton referred to the exchange of information and his concerns about safeguarding. We believe that there are sufficient safeguards in the Data Protection Act 1998 and the Human Rights Act 1998. I am sure he will remember that that was set out in a letter from my right hon. Friend the Minister for Schools and Learners to the Committee in January this year. If we did not agree to the amendment, the current data sharing would not be able to continue. I am sure that we all value the service that Connexions provides on behalf of young people.

My hon. Friend the Member for Luton, North (Kelvin Hopkins) does not accept, as I do not, that we should be able to excuse ourselves by saying that the type of intake determines the outcome of a school. We certainly recognised that in our London Challenge programme, in which we put together families of schools with similar intakes, levels of ethnic variation, attainments and free school meals provision. We measure those against each other so that, to use a phrase that I have probably overused today, we can share examples of best practice—a phrase to which the hon. Member for New Forest, West (Mr. Swayne) objected.

I repeat that we want fair access, which is why our admissions code often relates to over-subscription, and I certainly agree with my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) on that point. I said right at the beginning that this Government want all schools to be good schools. With that, I hope that the amendments will be agreed to.

Lords amendment agreed to.

Lords amendments Nos. 180, 185,186, 188, 190, 207 and 213 agreed to.

Clause 138

Power of governing body: educational provision for improving behaviour

Lords amendment: No. 168.

A school governing body already has the power under section 29(3) of the Education Act 2002 to direct a pupil off site to receive instruction or training. The clause provides that the governing body can also require registered pupils to attend off-site educational provision that is intended to improve their behaviour, such as anger management classes.

During the Bill’s passage, concerns have been raised as to how the power would be used in practice. My right hon. Friend the Minister for Schools and Learners had a particularly helpful meeting with my hon. Friend the Member for Blackpool, South (Mr. Marsden) and the Special Educational Consortium to discuss their concerns. I would like to take this opportunity to thank them for their helpful comments. My right hon. Friend mentioned to me earlier that we can perhaps consider these measures as the Blackpool amendments.

The amendments allow regulations to be made to determine the maximum length of time that a pupil can be required to attend off-site provision. It has always been our intention that governing bodies would be able to require pupils to attend off-site provision only for as long as is reasonable and necessary for the purpose of improving their behaviour. We intend to ensure that that is the case by making regulations that provide that governing bodies may not require a pupil to attend off-site provision for a period that goes beyond the end of the school year in which it is imposed.

We will also set out in regulations that a review must take place within 30 days of the requirement being imposed, and every 30 days thereafter while the pupil is attending off-site provision. We intend to impose an obligation to have regard to guidance, and to issue guidance that will emphasise the need to pay particular attention to pupils with special educational needs. That guidance will set out expectations that an assessment will be undertaken to examine what can be done to improve their behaviour in schools, and how their needs are being met, before an off-site referral is considered. It will also recommend a pre-placement meeting involving the parents, the head teacher, a governor and a local authority representative.

I am grateful that my hon. Friend supports the amendments, and I am delighted that the Government have been able to take up the points that were made by a number of organisations. I also express my thanks to my right hon. Friend the Minister for Schools and Learners, who was particularly helpful and constructive in the discussions that we had. As the Bill passes into law, will these issues continue to be considered, and will the efficacy of the regulations be kept under review? I am sure that the Government will want to continue to address as a priority the large number of exclusions of young people with special educational needs.

I thank my hon. Friend for that intervention and for the work that he did in Committee, as well as his ongoing work to protect children with special educational needs. We will of course keep the efficacy of the measures under review.

As I was saying, regulations will require that when a child has a statement of special educational needs, the local authority must be invited to review meetings and be informed of the outcome. With those important safeguards, we are confident that the requirement for pupils to attend off-site provision may not be imposed for longer than is reasonably necessary to improve the pupils’ behaviour. I commend the amendments to the House.

As the Minister said, the amendments deal with the power of a governing body to refer a pupil to educational provision to improve their behaviour. The House will know, as the Minister does, that of all the kinds of special needs, the problem of children with emotional and behavioural difficulties is the one that has grown most rapidly in the past decade. More of them are statemented than in previous years.

Clause 138 gives the school governing body the power to direct a registered pupil to attend any place outside the school premises for the purpose of receiving educational provision that is intended to improve their behaviour. As the Minister told us, it has always been the Government’s intention that any such direction would be a short-term measure only. Lords amendments Nos. 168 and 169 make that absolutely explicit in the Bill. It appears that the virtuous flexibility that the Minister for Schools and Learners advocated with such vehemence the last time that I asked for something to be put in the Bill persuades him less on this occasion. It seems that the Government are therefore likely to agree with the Lords amendments.

My questions deal with what I believe could be unintended consequences of the amendments, although I acknowledge their advantages, which were well identified and articulated by the hon. Member for Blackpool, South (Mr. Marsden) when we debated the matter at an earlier stage. However, the amendments might prevent off-site education that extends beyond the end of a current academic year for those with behavioural problems. We believe that although the measure would not necessarily prevent permanent exclusions, it would prevent a head from sending a pupil to a referral unit or special school under clause 139. It might fetter the discretion of heads and, in so doing, weaken the resolve to tackle poor behaviour in schools. In the end, it could be beneficial to children with behavioural problems to spend more time outside their normal place of education, perhaps in a specialist school staffed by teachers who are experienced in providing the kind of help and support that children in such circumstances need. There is a risk that the amendment will have the unintended or unforeseen consequence of disadvantaging children of that type.

I acknowledge the thoughtfulness with which the hon. Gentleman has presented his case, both in Committee and tonight. Is he concerned that in some cases, referrals of children in the circumstances he described are currently to pupil referral units? In some cases—I am choosing my words very carefully—those units may not be adequate for the purpose of achieving the behavioural changes that the pupils need.

I acknowledge that this is a complex area, and the problem is that when we speak of such matters, by necessity we tend almost to speak in more general terms than the individual cases warrant. Behavioural and emotional difficulties are, by their nature, varied and complex, and the needs of the children concerned often require sensitive and highly skilled handling by the best possible professionals. The hon. Gentleman is right; I do not think that anyone, from any part of the House, could argue with their hand on their heart that such service is always delivered—despite the best intentions. He is therefore also right to say that we must be cautious about those referrals, their length and their character.

I hope that the Under-Secretary will deal with my point, which is that the perverse effect of the measure may be to encourage permanent exclusions. If a head teacher feels that the only way in which they can cope with a child, in both their interests and those of the whole school community, is to exclude them permanently, rather than send them to a specialist school or a pupil referral unit for an extended period, that could be an unintended consequence of the amendments, which we broadly support, with the caveat that I know the Under-Secretary will deal with using her customary skill in the next few moments.

With your indulgence, Madam Deputy Speaker, may I add this point? Earlier, I spoke supportively about the Prince of Wales, who has done such good work with the Prince’s Trust in dealing with some young people in great difficulties, and I described him as the greatest living Briton. Of course, I did not include in that estimation Her Majesty the Queen, who is in her gracious nobility beyond such estimates.

Order. There is a danger here of hon. Members bringing the royal family into these debates, and as hon. Members will know, that is not allowed.

I have no intention of talking about the royal family, who behave very well, I am told.

I shall say a few words about behavioural difficulties for some pupils, because there is a range of behavioural difficulty. Some pupils require special education in a special institution, but the great majority require temporary removal from a classroom, so I urge my hon. Friend the Minister to give as much support as possible, not so much to exclusion from the school, but to providing inclusion units within schools. I have seen them operate very successfully in my constituency. When they are run well by the right people, they work extremely well, but we should not force teachers to deal with unruly or difficult pupils, whatever their problem. They may have serious home difficulties or emotional problems, but the teachers should not have to deal with that; the pupils should be sent fairly quickly to a unit in the school. I have seen the inclusion units operate in my constituency to very good effect, but they need permanent, long-term funding; they do not need time-limited funding, which was the case with one such unit.

The techniques are simple: pupils can be referred to such units for a few days or perhaps one or two weeks. In one school in particular, they are required to arrive at school half an hour after all the other pupils, and to leave half an hour after them so that the referred pupils do not get mixed up with other pupils. The pupils have that degree of separation, and their reward, when they return to class, is to be able to mix with their friends and to come and go with them at the usual times. All sorts of techniques can be used on a graded basis, and they can help with pupil behaviour, but overall, we need good leadership in schools, the right ethos and a calm and controlled atmosphere, which has been missing for too long from too many of our schools. I have seen schools operating absolutely brilliantly in my constituency, and I should be happy for any hon. Friend to visit them any time.

First, I shall put at rest the mind of the hon. Member for South Holland and The Deepings (Mr. Hayes) in respect of what he saw as the possible unintended consequences of the legislation. I think that I can reassure him on that point. Although the amendment would mean that we could not go beyond the end of one academic year, there would be nothing to prevent the school from starting the process again in the following academic year. We do not want the process to be renewable, and that is why we say that we have to start the process all over again. Reasons would have to be given, as would the same two days’ notice, and we are not saying that the behaviour that occurred in the previous academic year could be a reason for placing a pupil in off-site provision during the following academic year. That is why there must be continual review, and also why I do not believe that the amendment would encourage head teachers to go for permanent exclusion. The matter would have to be kept under permanent review, and we want to give young people, having spent time in off-site provision, the opportunity to go back and prove that they are able to take part in education.

In response to the comments that my hon. Friend the Member for Luton, North (Kelvin Hopkins) made, let me say that I am sure that there are excellent examples of alternative provision, and that is exactly what we are including in the pilots that we introduced on 23 October. The pilots are looking at innovative ways of securing alternative provision, and I hope that when we evaluate them, we can also consider inclusion units in schools as we work towards the best way to ensure that the rest of the class is not disrupted by bad behaviour by removing for a limited time the pupils who express such behaviour in order to help them reintegrate into mainstream education. With that, I hope that the House will agree to the amendments.

Lords amendment agreed to.

Lords amendment No. 169 agreed to.

After Clause 139

Lords amendment: No. 170.

With this it will be convenient to discuss Lords amendments Nos. 181, 182, 209 and 210.

The amendments were introduced by the Government in another place in response to the noble Baronesses Walmsley and Howe and supported by all parties. I think that they were based originally on amendments that the hon. Member for Yeovil (Mr. Laws) had tabled. The amendments would make a small legislative change following a major change—[Interruption.] Sorry, I am referring to a different set of amendments. Madam Deputy Speaker, I do beg your pardon. Let me start again.

The amendments would make a small legislative change following a major change in testing arrangements. They would amend section 88 of the Education Act 2002 to create an exemption for assessment arrangements from the general requirement that schools implement the national curriculum as it stands at the start of the school year. Instead, schools and local authorities would be required to implement the specified assessment arrangements for the time being. That will allow the Secretary of State to remove the obligation on schools and local authorities to administer key stage 3 national curriculum tests from 2009 onwards. The Secretary of State set out the rationale for the changes in his announcement to the House on 14 October.

Section 88 of the 2002 Act requires schools to implement the national curriculum, including testing arrangements, as it exists at the start of the school year. The current arrangements are set out in secondary legislation under an order made in 2003. Amendment No. 170 would require schools and local authorities to implement national curriculum assessment arrangements as they currently exist, so that changes to assessment arrangements made after the start of the school year could take effect this summer. It is important to note that the amendments refer only to the assessment arrangements within the national curriculum. The amendments do not seek to change any other part of the national curriculum after the start of the school year, because that would create unnecessary burdens on schools and necessitate changes to the careful planning of teaching and learning that would already have taken place.

Will my right hon. Friend clarify something? In amendment No. 170, proposed new subsection (2) would introduce to section 88 of the 2002 Act a new sub-paragraph, 1A(a), which uses the phrase, “local education authority”. Will my right hon. Friend remind me, because I thought that that term had been abolished by legislation—in something like the Education and Inspections Act 2006?

Local authorities are, in effect, the “local education authority”; in some circumstances, we still use that latter term in law. That is how I understand the matter, but I am sure that if I am wrong, I shall quickly get alternative advice.

I understand that key stage 3 tests will still be able to be taken on a voluntary basis. Will that be on a school-by-school basis, rather than on a local authority basis?

Yes, that will be on a school-by-school basis. If head teachers and heads of department find the key stage 3 test useful for tracking progress, as some independent schools do, they can use them for that purpose. Obviously, we will ensure that they are set.

We want the changes to assessment arrangements to come into effect as soon as possible. That is why amendments Nos. 181 and 182 bring the legislative changes into effect on Royal Assent. We will then table an order to change the existing arrangements, because it would be unfair to compel pupils to take tests when there are no good reasons for administering them. The amendments will ensure that, this year, public money and school resources are not spent on arranging key stage 3 tests for which there is no longer a sound justification.

To return to the point that my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) made earlier, I should advise him that the relevant part of the Education and Inspections Act 2006 has not yet been commenced by order. That is why the language in this Bill is as it is.

Amendment No. 209 is a consequential amendment to ensure that these amendments are carried forward when section 74 of the Education and Inspections Act 2006 comes into force. Amendment No. 210 is a technical amendment to ensure that the drafting of the schedule works in relation to these amendments. I hope that the House supports them.

As the Minister said, the Secretary of State announced that from summer 2009 children would not be required to take key stage 3 tests. The amendments were introduced on Report in the Lords to make technical changes resulting from that decision. Lords amendments Nos. 170, 181, 182 and 209 refer to the removal of the obligation on schools and local education authorities to implement the assessment arrangements in schools.

We have consistently argued that there are problems with the content of some of the tests and that as a consequence they have, to some degree, become discredited. Those problems were compounded by the administration fiasco this summer. [Interruption.] The Minister looks surprised, but he knows that on current measurements 84,000 pupils in one year made no progress, or fell backwards, in English between key stage 2 and key stage 3.

I was surprised because in Westminster Hall on the Thursday prior to our making the changes on the Tuesday, the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) said explicitly that the tests should be retained and that they were the most important of the SATs.

It is a pity that the Minister does not spend more time thinking about the children who have fallen back in English and maths than he does thinking about what my hon. Friend has said in Westminster Hall. My hon. Friend has been absolutely consistent in championing the cause of schoolchildren in this country, in his advocacy of higher standards and in his determination that the methodology in schools and the approach taken by teachers should maximise the chances of every child in this country. He deserves the praise of not only the Minister but the whole House for so doing.

As I was saying, there has been a shocking decline in core standards among many young people, 28,000 and 140,000 of whom made no progress or fell backwards in maths and science respectively. These early years are among the most important in education; it is a tragedy that thousands of 14-year-olds have a reading age lower than 11 and that more than 40,000 young people leave school at 16 functionally illiterate and/or innumerate. Many of those young people fall into unemployment and delinquency, and they certainly fall into disengagement.

We should get the figures right; the Minister got them wrong earlier. I do not want to suggest that his ideas on the issue are half-baked, but they are certainly not fully formed. You take these issues seriously, Madam Deputy Speaker, so you will know that the number of people not in education, employment or training—or NEETs—has risen by 132,000 in the past five years.

Those are the Government’s own figures, and I am sure that the Minister will want to confirm that.

My point was about proportions. There have been significant demographic increases in the numbers in that age group, which is why there has been an increase in numbers. The overall percentages, however, remain broadly stable.

The numbers that I have here are not proportions, but numbers of people. [Interruption.] However, the hard figures and the proportions of such people aged 21, 22 and 23, for example, have risen over that period, and the Minister ought to know that.

I do not want to detain the House for too long. In conclusion, we want fewer and more rigorous tests, less bureaucracy, more freedom for professionals and a commitment to excellence for all, underpinned with a special focus on the most disadvantaged. That is what our nation, our teachers and our schools deserve, and it is what our children deserve. In that spirit, I note and welcome the amendments.

I seem to be rising only to welcome U-turns from the Government this evening, and I cannot let this particular one pass without comment. As the Minister said, there has been not one U-turn, but a double U-turn on this issue. One has come from the Conservative party, which, as the Minister rightly said, was praising the key stage 3 tests as the most important just days before it welcomed their abolition. That will teach the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) not to be so honest and straightforward in how he answers questions in future. I am sure that he will have learned that if and when he speaks from the Government Front Bench.

We welcome the U-turn on the key stage 3 tests. The provisions in the amendments allow for the Government to insist on the application of the national curriculum tests as they exist at the particular time of the year, rather than at the beginning of the year. That raises the subsidiary question of whether the Government anticipate any further U-turns on key stage tests—perhaps a further amendment to the manner of key stage 2 tests. There is also the related issue of when the Government will clarify the nature of the key stage 2 tests in 2009. Will the Minister say something about both points when he responds?

The Minister said that changes to the testing regime in-year were acceptable, whereas it would not be acceptable to carry out changes in-year to the curriculum, as that would be extremely destabilising. I register that point, but he may want to acknowledge that carrying out changes mid-year in the testing regime has serious implications for school planning and for those who provide materials for the key stage 3 tests. Like me, the Minister may have seen correspondence from publishers a large proportion of whose business was producing key stage 3 test documents for schools. They were less than amused by the very short notice given of this year’s change in relation to the key stage 3 test.

Will the Minister acknowledge that, although the abolition of the compulsory key stage 3 testing regime this year was desirable, and although it may have been prompted by the unusual chaos in the testing regime over the spring and summer, we would not want a change at such short notice to be an example of how the testing regime should be changed in future? That change has caused a great deal of disruption to schools and those associated with the testing regime, including those who supply materials for it. I hope that he will recognise that as he sums up and that he will assure us that future changes to the testing regime will be more measured and thought out.

I welcome the effective abolition of the mandatory key stage 3 test. That was long overdue, and the Government have done well.

I want to focus on amendment No. 209, which amends part of section 74 of the Education and Inspections Act 2006. The 2006 Act itself would amend part of section 88 of the Education Act 2002. There are amendments to amendments, but as the Minister said, section 74 of the 2006 Act is not in force two years after its passage. Yet tonight we are amending it. I wonder whether my right hon. Friend can explain in a little more detail—not exhaustive detail, as I am sure he could if he wished to—how it has come to pass that an Act passed by the House two years ago to amend an Act that was passed four years before it is not yet in force, although tonight we are amending it.

When I see my right hon. Friend the Treasurer of Her Majesty’s Household, I know that I need to be relatively brief. I will attempt to be so. I accept that we have had some debate by way of intervention with the hon. Member for South Holland and The Deepings (Mr. Hayes), and I accept his general support for the amendments with gratitude.

The hon. Member for Yeovil (Mr. Laws) asked a few questions and commented on the rapid U-turn by the Conservative party. I can tell him categorically that there will not be any U-turn on key stage 2 tests. We have proceeded with the procurement for 2009, which is coming to a conclusion. As the Secretary of State said in his statement, we think it important that there is an independently assessed national measure of performance that allows parents and us to judge the performance of primary schools. That function is performed in another respect by GCSEs, but in respect of key stage 2, if there are any changes, those will be informed by the expert group set up under the leadership of Sir Alasdair Macdonald, the head teacher from Tower Hamlets.

I cannot tell the hon. Gentleman exactly when. As I said, that procurement process is coming to a conclusion. I had a note about it in my box this weekend, but as far as I recall the note did not include a date. In-year changes to national curriculum assessment would be exceptional; I am not proposing that we should make this a matter of routine. When we made the announcement back in October, some English and maths teachers got in touch to say, “What am I going to teach now?” I suggested that perhaps maths and English would be a good idea.

My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) raised some questions around the implementation of the 2006 Act. If I led him to believe that the whole Act had not been implemented, that was an error. Certain parts of the Act have been, and others, as has been pointed out, are still to be. I am advised with rigour that these are the appropriate amendments to the appropriate amendments of the appropriate Act. I hope that he takes my reassurance.

Can my right hon. Friend tell me the appropriate date when those appropriate amendments to the appropriate amendments to the appropriate Act will be brought into force?

As I said in my speech, the amendments will come into effect by regulation shortly, so they will have effect very soon. Clearly, they are in regard to the key stage 3 tests, which otherwise would have to be conducted by schools this summer. We will bring forward the regulations very soon. On that basis, I hope that the House will support the amendment.

Lords amendment agreed to.

Lords amendment: No. 171.

These are the amendments introduced in the other place by the Government in response to amendments tabled by Baronesses Walmsley and Howe, supported by all parties and, I think, inspired by an amendment originally tabled by the hon. Member for Yeovil (Mr. Laws).

The Government are committed to involving young people as widely as possible in matters that affect them. We demonstrate that commitment by consulting children and young people in the development of our policies—for example, in developing and evaluating the effectiveness of the children’s plan. As we set out in the children’s plan, the Government’s aim is for all young people to want and be able to participate and take responsible action. Giving children and young people a say in decisions that affect them can improve engagement in learning, help to develop a more inclusive school environment, and improve behaviour and attendance.

I am sure that no one, least of all schools, would disagree that the voice of pupils is extremely important. As hon. Members will know, we have already acted decisively. In the 2002 Act, we required schools to have regard to statutory guidance about consulting pupils on decisions that affect them. We want to build on that now to ensure that all schools are consulting their pupils, as a minimum, on certain core aspects of school life. We know that more than 95 per cent. of schools in England already have school councils, which means that they are fulfilling this new duty. It simply is not the case that this duty, as some have alleged, will mean extra burdens on schools. It will provide clarity about the essentials, so that all schools and pupils are clear about the matters that they should be consulted on, as a minimum.

Next year, school staff, their representatives, governors and pupils will be consulted on what those essentials should be. We envisage that, as a minimum, those essentials might be policies relating to behaviour, uniform, school food, health and safety, equalities and sustainability.

Involving pupils in participation and decision making is already a key part of the personal, social and health education and citizenship education curriculums. It gives young people the opportunity to develop critical thinking, advocacy and influencing skills, and empowers them to make an active contribution to their school and wider community—exactly the skills that employers are saying we need to develop more of in our young people.

The new duty in these amendments gives a clear message about the importance that we place on the involvement of pupils in matters that affect their education and school life—I make no apology for that. However, we do not want to tell schools how to go about their business. The regulations will set out just the matters on which they must invite views, but they will continue to be free to do that in ways that work best for them. We will not prescribe the manner of consultation or which pupils should be consulted. That will be for schools to decide.

In drafting the new duty, we have sought a balance in defining a responsibility that is both unambiguous and manageable for school governing bodies. To that end, statutory guidance made under proposed new subsection (5) in amendment No. 171 will help schools to understand the scope of the new duty and set out examples of how best to involve pupils and invite their views. I commend the amendment to the House.

As the Minister has told us twice, the amendments were all tabled in another place by the Liberal Democrat peer Lady Walmsley. Few people, if any, would deny the advantages of a school giving pupils a voice in developing policies that affect the children at that school. That is increasingly accepted as best practice, and the best performing schools in the state sector will invariably have a long-established route through which pupils can express their views on key aspects of how the school is run.

I am a particularly strong supporter of school councils, not least because the views expressed by those councils are often as strong on issues of discipline and behaviour as my own and those of my party. On rare occasions, some school councils that I have met go beyond even our zero-tolerance approach to discipline and behaviour.

An ordered and safe school environment is a pre-occupation of pupil opinion in many of the schools that I have visited, even those where behaviour is good. As my noble Friend Lord Elton said in Committee in another place:

“One of the most convenient forums for this”—

pupil voice—

“is a school council where matters of discipline naturally come up quite quickly for discussion between the pupils and staff.”—[Official Report, House of Lords, 1 July 2008; Vol. 703, c. 229.]

I am grateful to the hon. Gentleman for giving way, because this might speed things up. Does he not agree that Lord Elton is one of his noble Friends and that he moved the amendment in slightly longer form in Committee in another place, so therefore it would be untrue to say that these amendments were introduced and instigated solely by the Liberal Democrats?

This particular amendment was introduced by the Liberal Democrats, but I will return to Lord Elton in a moment. There is a common concern about extending the existing statutory duty on schools to take into account pupils’ opinions. The concern is the extent to which the duty will be taken further and the fact that these additional duties will be statutory.

As my noble Friend Lord Elton said in another place on Third Reading:

“I am sorry that it has to be in legislation. We are a litigious nation and it would be very unfortunate if we were to have a rash of cases of parents saying, ‘You were not listening to my little Johnny’.”—[Official Report, House of Lords, 11 November 2008; Vol. 705, c. 572.]

I have given the Minister the opinion of Lord Elton. This goes to the crux of our concern about these amendments.

I will not. The hon. Gentleman will soon have his moment.

As my noble Friend Lady Morris, who speaks for the Opposition in the other place, said in Committee:

“I sound a note of caution…. It may not be the best course of action to be too prescriptive. We think that it is best left up to schools, not central government, to decide on the best way to engage their students.”—[Official Report, House of Lords, 1 July 2008; Vol. 703, c. 230.]

We fully endorse that view. It is odd, therefore, that a Liberal Democrat peer should have tabled a series of very prescriptive and centralising amendments that will, once statutory guidance is introduced, effectively dictate to schools the issues on which they will be obliged to consult pupils. I had thought that it was a Liberal Democrat mantra that such decisions should be made at the local level.

I will not give way again; the right hon. Gentleman will have another opportunity to speak when he concludes the debate.

Anyone going through the Hansard record of any Bill passing through this House would see it littered with Liberal Democrat amendments, prescribing their particular hobby horses and policy imperatives. They are in favour of local decision making, provided the decision is in line with Liberal Democrat policy and ideology. The Minister, Lady Morgan, clarified on Third Reading what amendments she was supporting. She said:

“As a minimum, schools should seek and take account of pupils’ views on policies on the delivery of the curriculum, behaviour, the uniform, school food, health and safety, equalities and sustainability, not simply on what colour to paint the walls.”

She continued:

“We are not minded to require governing bodies to take account of pupils’ views on matters such as staff appointments or the school budget.”

She then went on to say a most extraordinary thing, which I can only assume was not said with a straight face, namely that

“we are also keen to ensure that a duty on schools does not end up with centralised prescription… The regulations will simply set out the issues on which they must invite views. If they want to go further, they can.”—[Official Report, House of Lords, 11 November 2008; Vol. 705, c. 573.]

That is an extraordinary statement. If the words “regulation” and “must” do not amount to centralised prescription, I do not know what does.

It is not surprising that these amendments have received such a hostile reception from teachers and the teacher unions. As Chris Keates of the National Association of Schoolmasters Union of Women Teachers said to The Times Educational Supplement:

“This is completely unnecessary and will be open to abuse. It is a distortion of the important concept of pupil voice that will lead to headteachers and teachers becoming very disillusioned.”

John Dunford of the Association of School and College Leaders said:

“This is crazy. I am a strong supporter of pupil voice, but schools are increasingly consulting pupils because they think it is the right thing, not because Government tells them to.”

He went on to say:

“I am annoyed and furious that yet another in this continual stream of legal and educational duties is being placed on schools. They all bring unintended consequences.”

Our concern about the amendment is not based on the objective of encouraging schools to consult pupils on important matters affecting the school; rather, it is the fact that it is a statutory requirement. This is yet another statutory burden imposed on schools that are already creaking under the weight of fortnightly initiatives emanating from this Government. For that reason, I hope that all hon. Members will join us in the No Lobby to vote against Lords amendment No. 171.

I declare a sort of interest in that, as you know, Madam Deputy Speaker, my wife was the head of a primary school for a number of years.

I pay tribute to Dr. Bernard Trafford, who will be well known to the hon. Member for South Staffordshire (Sir Patrick Cormack), who I see in his place. Dr. Trafford is the former head of Wolverhampton grammar school, who has taken a national lead on the issue of democracy in schools and the question of schools councils. In fact, he wrote a very informative booklet on the matter, which I have read and would recommend to right hon. and hon. Members.

I would like a little further clarification from the Minister: although I am not nearly as sceptical as the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb), I am still somewhat sceptical. I appreciate that what would become, under amendment No. 171, section 29A(1) of the Education Act 2002 includes the word “must”, as the hon. Gentleman has just explained. The full provision would read:

“The governing body of a maintained school must invite the views of pupils about prescribed matters.”

That brings us on to what those “prescribed matters” are. That is explained in subsection (4), where we find that they “may be prescribed” by the Secretary of State in England, and Welsh Ministers in Wales. That “may be” is therefore permissive. However, paragraphs (a) and (b) seem to be so widely drawn in respect of the matters that the Secretary of State “may” prescribe that I would like the Minister’s reassurance. Paragraph (a) refers to

“the exercise, or proposed exercise, of a function of the governing body of a maintained school relating to the conduct of the school”,

and paragraph (b) to

“the exercise, or proposed exercise, of such a function in a particular way.”

The function of a governing body of a school—I speak as someone who was a governor of a secondary school in my constituency for four years—is basically to run the school. If the Secretary of State may prescribe what the governors do, my understanding is that anything “may be prescribed” down to the last jot and tittle or the last comma in the running of a school. I hope that that is not the Government’s intention—I would appreciate my right hon. Friend’s reassurance on that, particularly with respect to hiring and firing.

I may be misreading the provision, but it seems to me that under what would become section 29A (2),

“the governing body of a maintained school must consider any relevant views of registered pupils”,

which suggests something contrary to what I understood my right hon. Friend to state in his opening remarks. It seems to suggest that the school must, on any number of issues that may be prescribed under subsection (4), consult every pupil in order to find out whether they have a relevant view or not. If the pupil does have a relevant view, the governing body, in exercising its functions pursuant to the regulations, must decide how much weight to give to it. How does it discover whether pupils have a relevant view or not? One assumes that the governing body has to ask them.

As I said, I may be misreading the amendment, but contrary to what I understood the Minister to say, there is a “how” about these matters because they cover everything. If my interpretation is correct, everything in a maintained school is covered—including hiring and firing. I understand the desire to make pupils feel included, particularly if we are going to move to compulsory education or training up to the age of 18—that means we are dealing with near-adults whose views should be taken into account; indeed, it is important to take account even of primary school pupils’ views through school councils—but how much weight we accord those views, particularly when it comes to hiring and firing, can be an immensely delicate matter. I thus seek my right hon. Friend’s reassurance that the Secretary of State, in making regulations under proposed new section 29A(4), will not include issues of hiring and firing in them.

I promise that I shall not attempt to speak any longer than I did last Wednesday, but I would like to make a couple of brief points. I speak not only as the MP for South Staffordshire—the hon. Member for Wolverhampton, South-West (Rob Marris) was kind enough to refer to that—but as someone who was a schoolmaster for 10 years before I entered the House. Any good school has to have proud pupils; otherwise, it is not a good school. Proud pupils are those who like to take part, insofar as they can, in discussing with their teachers and others the running of the school. That is fine. However, to make that opportunity prescriptive and statutory is going a step too far.

The road to hell is paved with good intentions and I do not doubt the good intentions of those who moved the amendment in the other place. I am sorry to find myself at odds with, for example, the noble Baroness Howe, for whom I have the highest possible regard, but on this issue, she and those who support her are just plain wrong, because they have gone too far.

My parliamentary neighbour, the hon. Member for Wolverhampton, South-West, made an admirable brief speech in which he pointed out some of the problems that will follow if we make this provision statutory—particularly if we allow future Secretaries of State to determine through future regulation what pupils must be consulted on. Nine times out of 10, anyone who goes into any school nowadays and asks what the head wants of Government will be told “To be left to get on with the job and run the school as I would wish to run it with my colleagues and my governors, without interference”.

Over the last 10 years, the schools of this country have become burdened with excessive legislation. That is not entirely the fault of the present Government; the previous Conservative Government were also guilty of passing too many laws, in relation to health as well as education. We saw the absurdity of that tonight when we were discussing earlier amendments. It became clear that part of an Act that was passed in 2006 was effectively being repealed by this Bill although it had never been brought into force. Other examples, for instance in criminal justice legislation, demonstrate a similar legislative diarrhoea which has led to a rather unpleasant illness.

No one doubts the good intentions behind the amendment, but I ask the Minister to listen to the teachers—union leaders and others—who, over the weekend, described it as a step too far, and asked for it not to be made statutory. I hope that the thoughtful and sensible words of the hon. Member for Wolverhampton, South-West will ensure that we enter the same Lobby—if, that is, the Government persist with the amendments. It would be far better for us to disagree with the Lords and, while encouraging schools to have their councils and other forms of consultation, refrain from putting pupils into the driving seat and introducing the utter absurdity of involving them in what the hon. Member for Wolverhampton, South-West described as issues of hiring and firing. That would be entirely wrong.

I agree with what was said by my hon. Friend the Member for Bognor Regis and Littlehampton (Mr. Gibb). I will vote accordingly if a vote is necessary, but I hope that it will not be.

Although I enjoyed the speech by the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb), I noticed that he was somewhat more reticent than usual when it came to allowing interventions. That may have been because the force of his argument against the amendments was somewhat undermined by the fact that they had enjoyed the support of his party in another place and, moreover, by the fact that he did not quote in full Lord Elton’s words from the Third Reading debate on 11 November. He spoke of the noble Lord’s reservations, but omitted the most important part of the quotation. Lord Elton said:

“I am glad to see the flexibility written into the amendment—the variety of ways in which consultation can take place.”—[Official Report, House of Lords, 11 November 2008; Vol. 705, c. 572.]

It is clear from those comments that although Lord Elton may have been concerned about the implications of too great a degree of prescriptiveness, he felt that the degree of flexibility in the amendment was quite acceptable.

Because he is assiduous in these matters, the hon. Gentleman will also know that, to some extent, the Liberal Democrat amendment was prompted by Lord Elton’s amendment. He did not take quite enough credit for the role played by the Conservative party in another place in originating these proposals. Lord Elton tabled amendment No. 61, which sought to place a duty on the governing body of a maintained school

“to have due regard to the ascertainable views of the pupil on matters that affect him or her, taking account of his or her age and maturity.”

Subsection (2) of the amendment stated:

“A governing body of a maintained school must establish a democratically formed school council or other collective mechanism, the purpose of which is to enable pupils to discuss matters relating to their school and their education and to make representations on these to the government body and the head teacher.”

The hon. Gentleman expressed concern about the prescriptive nature of the amendment tabled by my noble Friend Lady Walmsley. What did she actually say when she had to comment on Lord Elton’s amendment? She hesitated to support it, and also, she said,

“hesitated to be too prescriptive about the way in which the voice of the students should be collected”.

She continued:

“We devised our own amendment that did not specify a school council because we did not want to be too prescriptive; we wanted to give schools the opportunity to be creative and respond appropriately to their own circumstances, devising their own ways of gathering students’ views”.—[Official Report, House of Lords, 1 July 2008; Vol. 703, c. 228-29.]

When we look at what actually happened in another place, we discover that—rather contrary to the impression given by the hon. Member for Bognor Regis and Littlehampton—there was an extremely prescriptive Tory amendment, followed by Liberal Democrat criticism of the extent of the prescriptiveness and by a Liberal Democrat amendment featuring much more flexibility, which was commended by the Conservatives and which they supported when it became a Government amendment and was accepted by another place as a whole.

There was another interesting aspect of the views of the hon. Member for Bognor Regis and Littlehampton and, perhaps, his reservations about pressing his points too strongly. He quoted from various publications, including The Times Educational Supplement, which had reported some of the things that teachers’ leaders had said over the last week or so. I noted that one quotation was missing. The hon. Gentleman smiles modestly—sheepishly, even. That is because he knows very well which quotation I mean. It is the quotation from his favourite principal of his favourite school, which he mentions frequently. I refer to Mossbourne academy in Hackney, which the hon. Gentleman cited with appropriate reverence earlier. He was referring to an excellent school, but why did he not refer to the quotation from Sir Michael Wilshaw, its head? According to the front page of this week’s TES, he said that

“schools would not have to alter what they were already doing for pupil voice”,

because so many are already, in very appropriate ways, consulting the pupil body, and presumably the academy as well. The hon. Gentleman also mentioned the Education Act 2002, which already places obligations on schools to consult.

This is the point, is it not? Schools are probably already doing that, but what burdens heads and other teachers is the introduction of more statutory obligations to read and understand, and the requirement to assess whether their schools are fulfilling those obligations. That is the problem with putting requirements such as this into law.

Surely the issue, as Lord Elton put it, is whether there is sufficient flexibility in the amendment. Presumably it was the fact that Lord Elton and his noble Friends were persuaded of the existence of such flexibility that caused the Conservative party in another place to give a fair wind to the proposals. The hon. Member for South Staffordshire (Sir Patrick Cormack) was rightly anxious for the responsibilities to consult with the student body not to become too onerous. I have no doubt that he has read Lords amendment No. 171, which is framed in very modest terms. It suggests that the governing bodies should invite the views of pupils and consider them. It is not prescriptive in relation to how that should be done, or about the acceptance of those views.

The point is that this must be done. It will become a legal obligation. It is yet another legislative burden that we do not need to place on hard-pressed people whose sole aim is to run good schools.

We all note the clear divisions in the Conservative party between the views expressed in this place and another place. I simply draw the hon. Gentleman’s attention to the view of his noble Friends that there is enough flexibility in the amendment to allow for his concerns. He will also know that on 11 November Baroness Morgan put on the record in another place the specific areas in which there would be a requirement on schools to consult in different ways with pupils, and those certainly excluded issues such as staff appointments—[Interruption.]

Thank you, Madam Deputy Speaker. I am sure Members would not want to bring the discussion of this amendment to too early a close.

I also invite Members to take reassurance in one other respect. The significance of the amendment will be heavily dependent on the regulations that are brought forward by the Minister on this point, and it will be quite possible for the Minister to make sure that they are drafted in such a way as to ensure the flexibility that all Members would wish for. I hope the Minister will be able to confirm that when the regulations are brought forward, they will embed the flexibility that all Members of this House want, and that ensured there was unanimity on this amendment in another place.

The hon. Gentleman has made the case very well, and I do not need to detain the House for long. We have yet another U-turn from the Conservative party. It is not quite as rapid a U-turn as that which the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) made on standard assessment tests, but it is extraordinary: Baroness Verma, who led for the Opposition on this in the Lords, said on 30 October that the amendment responded to the concerns of her noble Friend Lady Morris:

“The amendment has been tailored to meet that small concern and I am happy to offer my support for it”—[Official Report, House of Lords, 30 October 2008; Vol. 704, c. 1743.],

but the Tory Front-Bench team is voting against it now.

I give the reassurance to the hon. Member for Yeovil (Mr. Laws) and my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) that we will consult social partners, schools and unions on what should be in the regulations. We have already said we do not intend to be prescriptive on matters such as staff or terms and conditions. This will be at a high level. The amendment will retain the flexibility everyone has been asking for, and it is bizarre and inflexible of the Opposition to want to vote against it.

Question put, That this House agrees with the Lords in the said amendment:—

Lords amendments Nos. 172 to 215 agreed to