House of Lords
Wednesday, 5 July 2006.
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Chester.): the LORD SPEAKER on the Woolsack.
Personal Statement: The Baroness Scotland of Asthal
My Lords, perhaps I may make a personal statement. I have to make an abject apology to the House. In answering a Question yesterday, I said to the noble Earl, Lord Onslow, that I was confident that,
“he understands the rules of sub judice, just as every other person in the House does”.—[Official Report, 4/7/06; col. 136.]
It is clear to me now that I was wrong and that the noble Earl understands them rather better. The rules of sub judice do not apply where the applicant has exhausted all available legal avenues in the United Kingdom, which the three bankers have. There are still sensitivities because, as I indicated to the noble Lord, Lord Strathclyde, yesterday, other cases on similar grounds are going through the courts. But, for having misled the House in that way, I give my wholehearted and unreserved apology to the House.
Armed Forces: Expenditure
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I remind the House of my peripheral interest.
The Question was as follows:
To ask Her Majesty’s Government on whatbasis they compare United Kingdom defence expenditure with that of other developed countries.
My Lords,Her Majesty’s Government conduct no formal comparison of defence expenditure against that of other developed countries. The level of defence expenditure is a reflection of UK policy requirements and is therefore not related to the amount spent by any other country.
My Lords, as a percentage of GDP, UK defence expenditure has gone down. That is because the rate of GDP increase has accelerated. The important measure is the absolute amount in real terms spent on defence. We are at the end of a sustained period of increases in real-terms defence expenditure under this Government, matching that expenditure to the level of commitments that we face. That is the key measure.
My Lords, if this is a time of sustained increase in defence expenditure, it is also a time of sustained increase in defence commitments. Anybody who either heard or had a chance to read the Hansard report of your Lordships’ debate on defence will know that no fewer than three Chiefs of the Defence Staff pointed to the serious challenges that are now faced—the shortage of equipment and the challenges faced by our forces in two extremely dangerous undertakings to which the Government have committed them. It is not sufficient to say that there has been a sustained increase in defence expenditure, because clearly that is not enough. Will Ministers do all that they can to ensure that the Treasury sustains the Ministry of Defence rather better?
My Lords, I am grateful to the noble Lord for making my point for me. The key point is that defence expenditure matches the commitments that we have to meet. That does not relate specifically to a percentage of GDP. Like other departments, the MoD is fully engaged in the review of long-term policy and will robustly set out the case for defence expenditure to meet such commitments.
My Lords, the Minister keeps saying that the percentage of GDP is irrelevant. Does he not agree that the personnel costs of the Armed Forces increase at just about the same rate as GDP and that defence equipment costs increase at a greater rate? Therefore, a falling rate in percentage of GDP is bound to lead to front-line cuts over time, as it has done year after year. He says that he does not do comparisons of percentages of GDP, but will he update the Ministry of Defence website? It states:
“We spend about the same proportion as France”—
in GDP terms. Given that the 2006 military balance from the International Institute for Strategic Studies reports that the French are spending 2.6 per cent and rising and that we are spending 2.3 per cent and falling, that needs updating.
My Lords, I am explaining to the House the basis on which we set our defence expenditure. That is a bottom-up approach, reflecting our policy and commitments. It is not made on the basis of comparisons with any other country's expenditure. As for the tables, of course on its website the MoD notes what other countries are spending. I am clearly telling the House that the basis of our defence expenditure is the level of commitment that we must match.
My Lords, can my noble friend confirm my recollection that the first decline in the percentage of defence expenditure came in 1994—I welcomed it at the time—under the Government of those on the Benches opposite? Is it not also true that what you include in defence expenditure and what you do not is very much a matter of national income accounting? For example, if you include pensions, that will considerably enhance the percentage but not improve your defence commitments.
My Lords, I am grateful to my noble friend for his points. He is correct that, under the party opposite, there was a significant real-terms decrease in defence expenditure, which was a reflection of the changes that came about at the end of the Cold War. The track record of this Government shows that, since 1997, there has been a sustained increase in real terms defence expenditure. That is the number that we should focus on.
My Lords, ifthe requirements of our forces to which my noble friend Lord King of Bridgwater has referred are complied with, sourced and adequate, why is comparison with other developed states with a disparate series of requirements relevant in any sense?
My Lords, does my noble friend agree that, with the exception of France, which has already been mentioned, if we are to be critical of defence expenditure, perhaps we should criticise not the United Kingdom but the performance of some of our NATO European allies? What steps are we taking to ensure that they, in the interests of collective security, play their part in meeting the obligations that we should all be sharing on a much more equal basis than at present?
My Lords, I am grateful to my noble friend for those points. Of course, we need to exhort our coalition partners to make their full contribution to the burden that we must all share in relation to the challenges that we face in the modern world, not least the challenges that we face in reconstruction in Iraq and Afghanistan.
My Lords, if the Government do not make comparisons about defence expenditure, do they make any comparison of the exports of defence materials and armaments? Is it not a surprise that Israel is now exporting more armaments to the rest of the world than the United Kingdom or China?
My Lords, in December last year, the Government set out a clear defence industrial strategy, which set as our number one priority making decisions based on putting our Armed Forces first. It takes into account the great importance of industrial issues, such as defence exports, but sets a clear priority of ensuring that decisions that we make on defence equipment—exports and procurement—put the needs of our Armed Forces first. That is what the Government are doing.
Common Agricultural Policy: Single Farm Payment
My Lords, I refer the noble Baroness to the detailed Written Statement that I made this morning, which reported the latest position at the close of the 2005 single payment scheme window on 30 June. In summary, as of that date, more than £1.438 billion had been paid from the total fund; 91,720 applicants had received a full payment; and a further 16,168 had received a partial payment but still await the remainder of their claim. This leaves an estimated 8,500 claimants who are yet to receive a payment, of whom approximately 460 have claims valued at more than €1,000. These remaining claims are complex, but they remain the agency’s topmost priority.
My Lords, I thank the Minister for that reply, but does he also accept that, in cash terms in part and full payment, the payment rate achieved at that stage was only 94.9 per cent, not the 96.1 per cent target, and that the actual payment rate achieved for farmer claimants was only 92 per cent? Does he not accept that, through the sheer incompetence of the RPA, there are still 460 farmers, to whom he has just referred, who have received nothing at all, of those who are due more than €1,000?
Yes, my Lords. The noble Baroness’s figures are correct; they are taken from the detailed Statement that we made. Some 92 per cent of applicants have been paid—107,888 of the total of about 116, 467—and 8,500, as I said, are yet to receive a payment, but, for most of those, the payment will be less than €1,000. I do not say that that is unimportant, but that is the fact of the matter.
On the 460 who have not received a penny but who will get more than €1,000, it is worth pointing out that, although each one is important, approximately 140 to 150 relate to probate and liquidation, which will inevitably take a while, and almost 200 will be paid for English fields but will be paid by the Welsh and Scottish devolved authorities because their farms transcend those boundaries. Those issues still haveto be dealt with, but they relate to incredibly complicated claims. Okay, I apologise; we have got within 1 per cent of the target.
My Lords, the Minister will be aware that England distinctively chose the area basis for payments, rather than the historical basis—I think, quite rightly. Can my noble friend outline the reasons for that, and say what he thinks the prospects are for payment in 2006?
My Lords, the answer to the second part of my noble friend’s question is that the payments for 2006 are no better than for 2005. There will be no promises and no commitments. We will do our best, but we will not give any dates of forecast payments. The first that the farmers will know about it is when they get the money. We will not be hung on any petards or promises. The fact is that 2006 has already started, more than 110,000 claims have been received and 32,000 have passed through the first stage of validation. We will do our best, but there will be no promises about payment.
On the English system being different from that of the other three devolved Administrations, those Administrations chose an area basis. In the long term, the system will produce more money for more of the farmers because it includes specialist producers who did not get any subsidies from the common agricultural policy. That is what caused the problem. There were new claimants with field boundaries that still had to be measured. Indeed, there were over 1,000 per cent more changes to field boundaries and mapping, which partially caused the problem. It was not an IT problem; it was a business case and management problem because of the extra claims. The root cause of the problem was trying to get more people involved in the scheme.
My Lords, the Minister has reported a vast improvement in the payments for 2005, but he has just said in response to the noble Lord’s question that Defra had received 110,000 forms. That is still a shortfall of 10,000 forms not received out of 120,000, and the deadline has passed for receiving forms. What will happen to the 10,000 who have not submitted their forms?
My Lords, I should like to correct a minor point for the noble Baroness, Lady Byford. The 200 farms where there are problems, where part of the land is in England and part is in the devolved Administrations, are in addition to the 460. That is the kind of figure we are talking about, but the claims are very complicated.
As regards the question raised by the noble Lord, Lord Livsey, we always worked on a figure of 120,000 claims. The reality is that, as the claims are validated, some drop out or are not right. Ultimately, there are about 116,000 claims for 2005. For 2006, 110,390 claims have been made out of 118,000 forms requested. People chose not to return the forms for various reasons. We are working on the claims. We had the window changed for penalties, so 4,000 farmers who would have been penalised will not be, because we got the date for entry moved. We will work on the 110,390 claims. As I have said, 32,000 have already passed through the level one validation.
My Lords, I should like to express appreciation to the Minister for the general change in style of approach that we have encountered in the matter since he came into office and there has been a new Secretary of State. However, there are issues on which I would be grateful for further information. First, notwithstanding what the Minister has just said about not setting dates or targets, given the huge impact of this on the rural economy, is he prepared to talk to the Secretary of State about setting a target date and a target percentage for the payment of 2006-07 single farm payments by the end of this calendar year? What progress is being made to settle the matter of unresolved hill farm allowance payments, which is impacting very heavily on farmers in areas such as Dartmoor and Exmoor? Will the Minister further tell the House whether anyone in the Government is responsible for assessing and monitoring the human and social costs of payment delays to date?
My Lords, on the hill farm allowance, 6,800 of the 10,500 eligible claims have been paid. It is treated as a priority. Everything cannot be a top priority. The top priority is those 400 or so claims with a value of more than €1,000; next are the hill farmers.
To the right reverend Prelate’s other question, the answer is “no”. We are trying to learn the lessons from what happened in 2005. We cannot with any confidence predict. Obviously, we want to move Heaven and Earth to do better, but I would say to farmers that, in adjusting their business for 2006 claims, they should look at what happened in 2005—very little can be changed. The forms cannot be changed. There can be no de minimis. It will be 2007 before we can make substantial changes.
The legal window in which the Government are required to pay the money is from 1 December 2006 to 30 June 2007. That is the target date for the window of payment. There will be no promises about percentages of payments paid during that window, target dates in that window or percentage of applications made. We will not go down that road because we will not have the confidence of the figures. We will not fall into the trap of giving misleading information. We will make an assessment over the summer on whether we can make or should make partial payments—our preference is full payments—but we will not make a decision on that until probably October. However, we will at that point make a decision.
Inward Investment: Company Headquarters
My Lords, UK Trade & Investment works closely with the regional development agencies and the devolved Administrations to put together attractive propositions for international companies looking to bring their headquarters to the UK. It has a strong record of success in doing so. In 2005-06, the UK attracted 151 such projects, compared to 30 for France and 19 for the Netherlands. The figure of 151 compares with 108 last year and two in 1998-99.
My Lords, I thank my noble friend for that Answer. Is he aware that my Question stems from an article by the noble Lord, Lord Rees-Mogg, which was as usual excellent and well researched, whether one agrees with what he says or not? He indicated that we might be losing international companies to the Republic of Ireland because of the higher rates of tax in this country. In fact, I was so surprised by the article that I sought further information, as my noble friend is aware, and found that over the past 10 years only four international companies had partially moved their headquarters to the Republic of Ireland. While only two international companies moved in in the first year, by 2004-05 the number had risen to 108. Those figures were so surprising and so good that I could not understand them. Will my noble friend consider carrying out some research to show whether those figures are accurate and whether we really are doing everything possible to ensure that international companies both come here and stay here?
My Lords, subject to the obvious restrictions on the figures in the sense that they are from UKTI and relate to the projects that it knows about—they are not internationally published figures—I can assure my noble friend that they are accurate. They indicate that, certainly on the question of company headquarters, this country is doing extremely well, with many companies obviously coming to London—interestingly, from all parts of the world. Last year, about 52 companies came from the United States, 28 from India, 14 from Japan and 10 from Australia. We are performing well. However, we must be clear that there are cases where we have lost manufacturing plants to the Republic of Ireland because it has offered large financial incentives. I still think that it is the right policy that we do not try to match those incentives but stick to making this country attractive economically for companies to come to.
My Lords, can the Minister confirm that what the noble Lord, Lord Rees-Mogg, wrote in his article is right? The corporation tax now being levied in the Republic of Ireland is 12.5 per cent; here it is 30 per cent. Can he also confirm that under this Chancellor our comparative competitive advantage because of a low burden of tax has been greatly eroded, so that we have slipped down the league tables? The Minister must be aware, as I am aware from evidence that we have received at the Tax Reform Commission, of the complaints being made by companies through the big four accountants that the aggressive attitude of the Inland Revenue is forcing people to look to countries such as Ireland and the Netherlands, which now offer a far friendlier business environment, as used to be the case here before this Government came to office.
My Lords, one needs to look at the whole package of conditions offered by a country, not at just one tax rate in the entire tax regime. What the figures clearly show is that a lot of companies from other countries looking at us from the outside think that we are the best country to come to. That is a pretty fair judgment.
My Lords, does not the Minister accept that one of the results of the free market in takeovers in the United Kingdom is increased evidence of the transfer of headquarters overseas following a foreign takeover? No doubt he will agree that the free market in takeovers in the City of London is a major advantage for it in its role as the leading financial centre in the world, but is he satisfied that there is a level playing field in foreign takeovers, particularly with our European partners and with state-owned and state-subsidised purchasers, of which two obvious examples are what is happening to our ports and with Gazprom and Centrica?
My Lords, I do not think that anyone would pretend that there is a level playing field in takeovers, but what should be realised is that, although you can impose restrictions that in the short term may give your country advantages, we now see more and more that American companies will not locate plant or headquarters in other European countries because of such restrictions and the lack of flexibility. That is why they come to this country; they think that it is a more benign environment.
My Lords, has the Minister looked at the possibility of raising in the European Union the question of unfair tax competition? That is particularly relevant with regard to corporation tax. The rate in the Republic of Ireland has been mentioned: it is12.5 per cent. It used to be 10 per cent, and it rose by 2.5 per cent partly because of pressure from Europe. Would it not be sensible for the Government to pursue those avenues to try to ensure a reduction in the level of unfair tax competition?
My Lords, discussions on unfair tax competition can very much lead to an argument on the harmonisation of tax rates. We are not at all keen to get into the question of the harmonisation of tax rates, a matter that, we think, should remain within the country. Countries need to look at the total package that they offer—and it is a question of the total package. A country can have a very good rate for one form of tax, but it is the total tax rate and overall conditions that really matter.
Prisons: Cell Sharing
My Lords, we announced on publication that we accepted in principle Mr Justice Keith's recommendation that the elimination of enforced cell sharing should remain the objective of the Prison Service and that the achievement of that goal should be regarded as a high priority. But we also made clear that the resource implications would be extremely serious. I therefore cannot announce a date by which it will be implemented.
My Lords, the Government have made a preliminary response toall Mr Justice Keith's recommendations; it was published on 29 June. It can be found on the Home Office website, but I am happy to put a copy in the Library. We are considering the report and its recommendations in detail and will provide a full response to all the recommendations by 29 August.
My Lords, we have plans in place because of the rise in the prison population. We are exploring all avenues to ensure that spaces are available. As the noble Lord will know, we have done well to date in increasing the number of places. However, prison capacity has increased by about 4,000 in the past two years. We have not finished our investigation and will pursue all avenues to see how we can do better.
My Lords, one of thesentences that surprised me in the summary of recommendations from Mr Justice Keith was this:
“The inability of the Prison Service at the time to identify those prisons which were failing badly was highlighted by the fact that the Director General did not know just how bad Feltham had become”.
I find that extraordinary, as I gave him three reports: in 1996, 1998 and 1999, so he ought to have known. What worried me was that a lot of the recommendations had not been actioned.
The Question of the noble Lord, Lord Clinton-Davies, refers to recommendation 1, on enforced cell sharing. Recommendation 9 states:
“The Prison Service should publish guidelines to assist officers in allocating cells to those prisoners who have to sharea cell”.
In view of how recommendations are acted on, can the Minister tell us when those guidelines will be published and who is responsible and accountable for making certain that they are obeyed?
My Lords, as the noble Lord, Lord Ramsbotham, will know, Feltham has changed radically since six years ago. One of the things that gives us a modicum of satisfaction is that the Feltham of today is very different from the Feltham of yesterday. As for the guidelines, those issues have been addressed, and I will certainly write to the noble Lord.
My Lords, will my noble friend confirm that the recommendations apply only to England? As she said, however, they have serious resource implications if implemented. In view of that, would it not be absolute madness to restrict Members of the House of Commons from other parts of the United Kingdom from having a say on matters with resource implications?
My Lords, is this not yet another example of how important it is that the Government prosecute even harder their policy of alternatives to custody? We desperately need that at every level. What immediate plans are there to step it up?
My Lords, I agree with the noble Baroness that the most appropriate sentence is one that deals with risk and the ability to cut recidivism. She is right that we are energetically pursuing effective alternatives to prison. That can be seen in our five-year plan, in the alliances and in the work that we are engaging in across the board, including other government departments.
My Lords, I certainly agree that there is an issue of sensitivity. We have done a great deal to improve the understanding of the risks that prisoners pose but also of their needs, in order better to address them. That can be seen in how we encourage and enable health and education providers to become involved in prisons in a much more direct way.
My Lords, we are looking at mental health issues. I am working hard with my right honourable friends in the other place, in the health department, better to assess mental health provision and to improve delivery of mental health services. The noble Countess is absolutely right: some prisoners might be far better placed in the mental health estate.
Consolidated Fund (Appropriation) (No. 3) Bill
Brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Speaker (Baroness Hayman) be appointed a member of the House Committee, and that the Lord Speaker be appointed Chairman in place of the Chairman of Committees.—(The Chairman of Committees.)
On Question, Motion agreed to.
Piped Music and Showing of Television Programmes Bill [HL]
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved accordingly, and, on Question, Motion agreed to.
NHS: Community Hospitals
My Lords, with the permission of the House, I wish to repeat a Statement on community hospitals made in the other place. The Statement is as follows:
“In the White Paper Our health, our care, our say: a new direction for community services in January, we outlined our proposals to create a new generation of community hospitals and services. Today I am announcing that we will make available up to £750 million of public capital investment to realise that vision and I am publishing guidance on how primary care trusts can access this money. A copy of the guidance, Our health, our care, our community: Investing in the future of community hospitals, has been placed in the Library, and copies are available for honourable Members from the Vote Office.
“Developments in medical technology and clinical practice are making it possible to provide far more care in local communities closer to where people live and even in people’s own homes. During the unprecedented public consultation for Our health, our care, our say, people made it clear that whenever it is safe and effective they want more convenient local and personal services with more consultations, diagnostic tests and treatments carried out in local facilities. Moving more services out of acute hospitals and into communities will help improve care for patients and deliver better value for money for taxpayers.
“We are already making a major investment in GPs’ premises and health and care centres, as well as community hospitals. One billion pounds of capital has been invested through the NHS local improvement finance trusts alone. We will now take the next step by making up to £150 million of capital available starting this year, and for each of the next five years—a total of up to £750 million—for the development of a new generation of community hospitals and services.
“This investment capital will be available to primary care trusts for a wide range of community schemes, including the redevelopment of some existing cottage hospitals. Services could include both in-patient and out-patient facilities, diagnostic tests, specialist clinics, minor surgery, health and social care services for people with long-term conditions, dentistry, rehabilitation, and palliative care and other services. For people who are seriously ill or injured, or people needing complex treatments, care will of course remain in acute hospitals, where patients can be treated by specialist teams using the most advanced technology.
“Primary care trusts that want to use the new investment capital will need to engage fully with local people to ensure that services are truly designed around the needs of patients and users. They will also be expected to work closely with other local partners, including GP practices and other NHS services, the local council, voluntary organisations and others in the independent sector to develop effective plans.
“We made it clear in the White Paper that decisions on the long-term future of existing community hospitals should not be made solely in response to short-term budgetary pressures that are not related to the viability of the community facility itself. We have asked strategic health authorities to assure themselves that all PCT proposals for changes to community hospitals are consistent with the long-term strategy of the White Paper to move care closer to patients’ homes, and to be reassured that local people have been properly consulted.
“Ultimately, however, changes in the configuration of local healthcare services in a particular area need local decision-making. Primary care trusts, with their broad perspective across hospital, community and primary care, are best placed to make those decisions in consultation with local people and their strategic health authority. This new investment fund will make it easier for PCTs to get the right services in the right place for the people they serve.
“Primary care trusts will be able to choose how they use the new capital available: investing it simply as public capital, extending the scope of their local investment finance trust scheme or adopting a new approach, a community venture. This is a more flexible joint venture approach that will provide the opportunity for a wider range of public, voluntary and private parties to pool their skills, or indeed their investment, for the benefit of the local community. Which model is adopted will be a matter for the PCT to decide.
“Whatever model is chosen, primary care trusts will of course need to demonstrate that investment proposals are sustainable and can be funded over the longer term. As we set out in the White Paper, we expect to see a strategic shift in how the NHS provides care, with a redirection of funding to support the provision of more convenient services in local communities. Primary care trusts that already have advanced plans for community services should submit their proposals to their strategic health authority by the end of September 2006. For schemes ready to start in 2007-08, proposals should reach the SHA by the end of December 2006, after which there will be a regular rolling programme managed through strategic health authorities.
“This new programme builds on the unprecedented investment that we have already made in the NHS. It will help to ensure even better services for patients, with better value for money. I commend it to the House”.
My Lords, that concludes the Statement.
My Lords, the House will be gratefulto the Minister for repeating the Statement. An announcement of new money for healthcare will always look like good news, and I very much hope that over the next five years this investment fund will provide a beneficial source of service improvements to patients throughout the country and to the PCTs that serve them.
At the same time one wonders how new this money is and how significant it will prove to be. These are capital moneys. Last year the NHS’s capital budget was underspent by £1.162 billion. There is no shortage of capital at this level. The shortages are in revenue funding. Over the past few months community hospitals have been closing not because PCTs have lacked capital, but because they have found their revenue budgets under acute pressure.
What I should like to hear from the Minister in the first instance, therefore, is how PCTs can confidently bid for money from this investment fund to build new community facilities when their revenue budgets are likely to be insufficient to enable them to fund the services that those facilities would provide. I do not believe this to be an uncommon situation. Indeed, the problem has been brought into even sharper focus this year as a result of the decision by Ministers to top-slice the growth money going to PCTs. How can PCTs afford to develop their services if the growth money has been cut in this way?
We all understand the desirability of shifting services out of acute settings and into the community—not just into intermediate care but, if it is possible and safe, into patients’ own homes. The Government have made numerous promises to create new community hospitals in local settings. They have spoken about the need to listen to local opinion and the wishes of doctors and patients in an area. Yet in parallel with those promises we have seen community hospitals closing. Whenever Ministers have been challenged on this, they say that it is a matter for PCTs. They talk of the need to reconfigure services.
I have grave doubts about the evidence base on which some of those assurances are founded. If you talk to Members of the other place in whose constituencies hospitals have closed, they speak not of reconfiguration driven by local wishes but of a diminution of services driven by budgetary constraints, and in the teeth of local opinion. Those constraints have their origins in part in the tariff. PCTs purchase care packages in acute settings on behalf of patients, and the tariff for that includes an element of recuperative care. If, following a patient’s treatment in hospital, it is considered that he can safely be moved out of the acute setting and into an intermediate care setting, the PCT has to find additional money to pay for that intermediate care, even though the original payment to the acute trust supposedly includes an element of post-operative care. What is happening to avoid that situation? My understanding is that the so-called unbundling of tariffs, separating out the acute portion of care from the intermediate care portion, will not happen until 2007-08 at the earliest. Is that correct?
I wonder whether the Minister is able to answer a couple of further questions. When PCTs examine the possibility of building a new community hospital, what population base should they regard as appropriate for such an investment? The language on this subject up to now has been that a community hospital should serve a population base of around 100,000 people. The language in the document published today is couched slightly differently. It speaks of community hospitals serving small populations rising to about 100,000. Is there any significance in that subtle change of language? Could it mean, for example, that a town of 40,000 people could warrant a separate community hospital? What range of population do the Government have in mind?
I also want to ask the Minister about partnerships between PCTs and non-NHS bodies in providing community services. To what extent have such partnerships, about which the Government have spoken warmly in the past, been pursued as an option by PCTs? Potentially, such partnerships offer considerable promise to the development of effective services, and it would be interesting to hear from the Minister how far they have developed.
Finally, I revert to the issue of hospital closures. We all, surely, want it to be the case that if a closure takes place it does so as a result of careful deliberation of what constitutes the best configuration of community and domiciliary services for patients in an area. We understand that represents government policy. What steps will the Government take to make sure that strategic health authorities and PCTs receive thenecessary guidance to place their decision-making on hospital closures on a footing that will command the confidence of local communities and will be seen tobe both fair and thorough?
My Lords, I, too, thank the Minister for repeating the Statement made in another place. Given that I have on a number of occasions in debates in your Lordships’ House talked about the need to move services away from acute hospitals to settings that are more advantageous and afford easier access to patients, he will not be surprised that when I woke up this morning to the press coverage of this announcement I felt rather hopeful. Like the noble Earl, Lord Howe, my hopes were somewhat dashed when I looked at the contents of the Statement and the supporting documentation. The noble Earl was right; this is an announcement of up to £150 million a year for five years only and there is no revenue funding attached. It is capital only. I echo the noble Earl in asking where this money comes from and what will not be purchased as a result that otherwise would have been.
When one turns to the detail in the document, the only advice given by the Department of Health on the matter of revenue funding is a series of different funding mechanisms such as LIFT and community enterprises, but there are no actual resources. This is being announced at a time when primary care trusts are shedding jobs right, left and centre. One of the PCTs in the area in which I live is in the process of shedding one in six of its staff. According to this announcement, PCTs have until the end of this financial year to put in yet another bid for one piece of central government funding. There is too little time to work out the optimum healthcare system for those patients they are trying to treat. PCTs and strategic health authorities are at the moment undergoing a massive reorganisation, which is driven wholly and solely by the need to meet stringent financial targets. I do not understand who will have the time to carry out the consultation required before they get to the point of submitting business plans to establish the new community entities.
It seems that, once again, the Government have fallen into an obvious trap—that of equating standards of healthcare with standards of buildings. Healthcare is not about buildings, but about staff and the access by patients to those staff. Lacking in all this is any indication of how these new centres will relate either to acute hospitals, which are undergoing a huge transformation and shedding many of the services that they used to provide, or to enhanced GP practices. Nowhere in this documentation is there any mention of crucial matters such as what the referral and decision-making systems for patients will be. One comes to the conclusion that, while the new premises that may result from this announcement may well be attractive and well equipped, there is no guarantee whatever that patients will have quicker access to appropriate services from clinicians who are capable of making correct decisions on the basis of their diagnosis.
There seems to have been almost no research into, or thought given to, the impact of the establishment of these new services on acute centres, patient referral, or GP surgeries, which in many cases are working hard to get themselves ready for the new PBC—practice-based commissioning—regime but simply do not have adequate premises in which to offer enhanced services. Like the noble Earl, I too wish to know what advice will be given to PCTs and strategic health authorities about the optimum configuration for acute facilities, ISTCs, walk-in centres and some of the new community hospitals.
Finally, at a time when old community hospitals, which have served their populations well and which have adapted to changing healthcare needs, are closing, this announcement is not only short-term, but is highly inappropriate and comes without an evidence base. The last thing that the NHS needed today was another centralised, short-term announcement of small amounts of competitive funding. This is not a strategic response to changing healthcare needs and, therefore, is a missed opportunity.
My Lords, I was going to thank the noble Earl and the noble Baroness, Lady Barker, for their support for this proposal, but, as the noble Baroness went on and on, her support seemed to be extremely grudging. This is a strategic document. It sets out very clearly that there is a new direction in which parts of the NHS can travel, consistent with our White Paper. Some of the noble Baroness’s remarks suggested that there were not already community hospitals doing some of the things that are set out in this document. We are responding to the concerns of people in the NHS about being given support to take forward this agenda.
I was at Edgware General Hospital yesterday, where services have already been taken out of acute buildings and provided in a community setting, with specialists working in that community hospital and doing operations there that were previously carried out in an acute hospital. The guidance contains many examples of where people have put partnerships together but have found that capital is a blockage to making progress in this area. We are responding to what people say that they need locally. They wanted encouragement to take forward a community hospital agenda. We have given them that encouragement in this document.
I have to say to the noble Baroness, Lady Barker, that we feel that people are mature and can make many of these local judgments for themselves. We have set out the range of services that it is possible to provide. We do not need to set out guidance that prescribes in every detail what people locally need to provide in their communities. We are trying to create a flexible capability for people to respond to their local services. We are not like the Liberal Democrats, wanting to try to control this from the centre. It is absolutely clear that there is no need to change the GP referral systems with community hospitals. They are working perfectly well now, and I do not agree with the noble Baroness that we need more guidance on this issue.
I turn to the questions and comments of the noble Earl, Lord Howe. I agree that some parts of the NHS are finding it difficult to manage their revenue allocations, but it is worth bearing in mind that the allocations this year are about 9.5 per cent higher than they were last year and that next year they will be another 9.5 per cent or so higher than this year. I remind the noble Earl that not all primary care trusts are in deficit. Many of them are creating surpluses so that they can develop their services. In this document, we are responding to their concerns by taking forward an agenda of moving services closer to home. We have put this document into the public arena because we know that a number of trusts now have proposals to take forward particular projects, and we want to give them the opportunity to do so.
The noble Earl asked whether there was a subtle change in the population range for community hospitals. The answer is no. We have repeated the figure of 100,000 but we want to be a bit more flexible here by saying that there may be circumstances in which smaller communities can have a facility that meets their local needs. There is no significance to the figure other than providing a bit more flexibility.
I am grateful for the noble Earl's support on partnerships. What he said is very much our view. With this document, we are trying to encourage people to think widely about the number of people and services with which they might involve themselves in these projects. We have tried to create a model in the form of a flexible community venture so that other public sector organisations, such as the local authority, may bring some of their patterns of revenue and capital into play. Voluntary organisations may wish to join these ventures and private sector organisations may also have something to offer. We know that as we sit here today projects are being developed with people coming forward in a wide range of partnerships.
The noble Earl rightly asked about the tariff. The tariff can already be unbundled if people choose to separate the components. We will be providing more guidance for the year 2007-08. The big, more formal, change on unbundling is likely to take place in 2008-09. People in the NHS have told us that they can use capital to help to re-engineer services in order to lower costs and revenue expenditure. Part of the reason for making the funding available is to enable them to do that.
Finally, when you put services closer to people, people get quicker access. With regard to the suggestion that community hospitals are closing, the Community Hospitals Association website states that for every closure in recent years, a new hospital has been opened. This body has responsibilities in relation to community hospitals and I do not think that it views the situation in quite the gloomy way that the noble Earl and the noble Baroness have done.
My Lords, I welcome the Minister's announcement of this new money, particularly as the White Paper, Our health, our care, our say, said that money was needed to give the proposal some teeth. Although it may not strictly be new money—it is retargeted money—we all know that, in the health service, revenue money follows capital and buildings. Although I wholly agree with the noble Baroness, Lady Barker, that it is people, not buildings, who provide the health services, people in the community need office space, places for meetings, treatments and so on, so I strongly welcome this.
How will the Minister guarantee—I say this having witnessed the closure of many dozens of community hospitals in the NHS through the 1970s, 1980s and 1990s—that the new community hospitals will be different from the old community hospitals in providing a truly cost-effective solution, and not, as so often happened with the old ones, a white elephant sitting in a community that could not provide the technological advances of the new central district general hospitals?
My Lords, I am grateful for the noble Baroness’s support. I share her view that we need to make these new facilities sustainable and cost-effective. What is changing, and what people who read the document carefully will realise, is that we are trying to raise people's sights in terms of the range of services—diagnostic services, in particular—that can be made available. Medical technology and knowledge have moved on. We are able to provide many more procedures on a day-care basis. That is another opportunity that probably was not available in the same way in the 1970s and 1980s.
The examples in the document show that people are already putting together a much wider range of services than were traditionally provided in a cottage hospital. The NHS is much better at business planning, and the document emphasises the importance of putting together a range of services that meet people's needs and can be funded over the long haul. I hope that that reassures the noble Baroness. We shall ensure that the strategic health authorities oversee these plans so that they are sustainable for local communities.
My Lords, I wonder whether the Minister can offer some hope and help to the situation prevailing in my home town of Sudbury, where two community hospitals are currently under sentence of death—fairly imminent death. Until two years ago, that would have been acceptable, because a new community hospital was planned. Since then, however, the decision has been taken not to proceed with that new community hospital. I do not want to go into the whys and wherefores, except to say that there was—as the noble Lord said that there would be vis-à-vis this new pot of money—extensive consultation with GPs, the community, and the rest of it, with virtually a 100 per cent response that a new community hospital was desperately needed following the death of the two old ones. Does the Minister think that the announcement today will allow the Suffolk West Primary Care Trust to review the decision that was recently taken? I am asking whether he sees any leeway or flexibility that might allow a reversal of that decision. I am particularly mindful of what the noble Earl, Lord Howe, said, about the problem of revenue funding. I should be grateful for any advice that the Minister can give.
My Lords, I cannot, so to speak, reprieve any individual community hospital. That is not the purpose of this announcement. It is down to people locally in the form of the PCT to make decisions based on all the available evidence. Since the publication of the White Paper, we have tried to say to the NHS that, before making short-term decisions about closing particular facilities or changing particular services, it should think about the longer-term direction of travel towards moving services closer to where people live, as set out in the White Paper. The guidance tries to raise people's sights on the range of services and is certainly intended to give strong support to the general idea of community hospitals having a wider range of services closer to people. I remind the noble Lord, Lord Phillips, that changes in primary care trust configurations will come into operation on 1 October this year. It will be for many of the new primary care trusts to ensure that the decisions are appropriate for communities in their particular areas.
My Lords, while welcoming this document with my noble friend, I ask for the Minister’s reassurance on behalf of another group of communities: those with specialist needs. I speak with a particular interest in children with cardiac difficulties. These communities would prefer not to have their services close to home but to have the best possible services that specialists can provide. Many children with, for example, hyperplastic left heart syndrome depend on a few specialists who know how to carry out a set of complex heart operations. I am looking for reassurance on their behalf that, while we develop this community service—which, as I say, I welcome—their needs will be thoroughly recognised. There are fears, particularly in Birmingham, that services are being lost.
My Lords, of course I accept the noble Baroness’s general point. We are concerned that specialist services are appropriately commissioned, which is why I commissioned a review by Sir David Carter, the former Chief Medical Officer for Scotland. We published his report on specialised commissioning to ensure that those specialised needs were properly met and that people in the NHS came together in commissioning mode to ensure that the specialised services were not neglected and were properly provided for.
My Lords, can the Minister help me with Cheltenham, where I grew up? When this Statement receives the publicity that I think it will, there will be considerable confusion. Prima facie, we are going to provide local and personal services wherever that is safe and more convenient. Two segments of hospital work in Cheltenham are being moved 12 miles away to Gloucester: paediatrics and maternity. Neither is necessarily wholly covered by this paper, but the population will be very confused by, on the one hand, the decisions that have already been taken and, on the other, what is now proposed in this paper. Can the Minister please help me?
My Lords, the community hospitals document and today’s announcement in no way suggest to local people that there may not be some need to modify aspects of their service provision, as may well be going on in the part of the country that my noble friend mentions. We are not saying that all those changes that are being consulted on—and where change may indeed be needed—should be put into abeyance while this document is considered and absorbed by people locally. We are saying that, when people in the NHS have to reconfigure local services for a variety of reasons, they must take into account the options relating to services that might be put into a community hospital. I shall be happy to look into my noble friend’s concerns if he writes to me.
My Lords, there is potential in that area, so I can reassure the noble Lord in that regard. It will be down to local people to work out the best—the safest as well as the most convenient—way to provide particular services, which is the big message of this announcement. We must leave that to the clinicians, managers and local populations to sort out for themselves in particular localities.
My Lords, I am sure that the noble Lord does not expect me to commit the Assembly in any way in this area. I believe that the Assembly already has access to this information, but I will make sure of that. However, I am sure it will wish to consider how these ideas can most appropriately be applied in Wales.
My Lords, I welcome the Minister’s Statement. It concentrates on capital provision for building new community hospitals, but is there a possibility that community hospitals that have closed may benefit from this new money if local circumstances allow? For example, some years ago, I was greatly involved in a campaign to save a much-loved community hospital in Burford, in the Cotswolds, which provided in-patient care for patients discharged from acute hospitals, had a newly built local accident and emergency department, which had been paid for by more than £200,000 raised locally, and provided outpatient services, minor surgery and many other services. If local primary care trusts agree, could some of this money be used to reopen that hospital, which is still—to use a common phrase—fit for purpose?
My Lords, where local primary care trusts and other stakeholders decide that a particular facility could be refurbished or reopened to meet a particular need and have a well thought-out plan that can be sustained financially, it will be possible for them to seek capital money to redevelop or reopen those facilities, provided the services are what the local community needs and can be sustained.
My Lords, is the Minister aware that there is considerable concern throughout the country about cuts in the number of specialist nurses and occupational therapists who help people with long-term conditions? Can he assure the House that people with long-term conditions such as Parkinson’s disease, rheumatoid arthritis, diabetes, multiple sclerosis and cancer get the right sorts of drugs? Who will monitor those drugs if such people are treated closer to their homes? Can the Minister assure the House that consultants will come out to see patients who cannot come in to see them and that there will be highly trained staff to treat patients, not just cheap care assistants, which happens in many hospitals?
My Lords, these changes are to ensure that safe and effective services are provided closer to people. We know that specialists in existing community hospitals—for example, the one I visited yesterday—carry out sessions and see people in that setting. We expect that to continue. These changes mean that there will be a range of specialist and general services in community hospitals. I share the noble Baroness’s support for the splendid work done by specialist nurses, such as those concerned with Parkinson’s. We hope that that will continue, but more of the work will take place in community settings in future.
My Lords, I welcome these proposals, but how will local populations be able to put pressure on primary care trusts to establish local hospitals? I fear that there will be some inertiain transferring services from acute hospitals to community hospitals. What pressure can be put on the primary care trust to establish these community hospitals, which may sometimes be extremely difficult?
My Lords, I welcome the noble Lord’s support for these proposals. It is down to people locally to use methods open to them to bring their views to the attention of the primary care trust. That can involve their MPs working together, sending petitions or involving their local councillors and local authorities, and, possibly in some cases, using voluntary organisations to make their views known. Some of these deputations have sat in my room and they are articulate in putting across their views. The NHS has to think about how to respond best to some of the concerns. In many places, it is getting better at engaging in public consultation about how to reshape services.
Education and Inspections Bill
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Before Clause 1, insert the following new clause-
“PRIMARY DUTIES IN RELATION TO HIGH STANDARDS AND THE FULFILMENT OF POTENTIAL
For section 13A of EA 1996 substitute-
“13A PRIMARY DUTIES IN RELATION TO HIGH STANDARDS AND THE FULFILMENT OF POTENTIAL
A local education authority shall ensure that their functions relating to the provisions of education to which this section applies-
(a) promote high standards, and (b) promote the fulfilment by every person concerned of his educational potential.””
The noble Baroness said: I speak to Amendments Nos. 1, 8 and 10. Amendment No. 1 attempts to strengthen the commitment made in the Bill to the high standards of education and the promotion of the potential of every person attending our schools. I say “person” because our Amendments Nos. 8 and 10 seek to clarify the definition of children and young adults attending our schools. I prefer to define those children and young adults as people. I have teenage sons and a teenage daughter who I know would seriously object to being referred to as “children”.
Amendment No. 1 first and foremost reinforces the duty to promote high standards in schools and the fulfilment of potential. While the Bill states that as an intention, I remain wary of its precise wording. My amendment is prompted in part by a letter from the Minister in another place to my honourable friend Nick Gibb MP. The Minister stated that, as the Bill stands, local authorities will have a duty to act “with a view to” promoting high standards, fulfilment of potential and fair access, which I will address in a moment. He added:
“As the duty is to act ‘with a view to’, it will be a ‘target duty’—that is confirmed by Parliamentary Counsel”.
He went on to say that the clause would be the,
“overarching expression of the Government’s aspiration that improvements in standards should benefit children from all backgrounds and circumstances”.
While that principle is entirely in line with the thinking from these Benches, I believe that we are in danger of expecting aspiration to produce a reality.
The amendment would place a solid duty on local education authorities to promote high standards and the fulfilment of potential. The key word is “promote”. This is not a duty to produce high standards—that is the job of schools, not local authorities. A direct duty, as laid out in my amendment, would instil in every local authority a working function of promoting high standards and the fulfilment of potential.
My amendment also omits the reference to “fair access” added to the Bill in another place. I confirm to the Committee that that omission is in no way an attempt to prevent children from all backgrounds and walks of life having access to whichever school they wish. Rather, I did not see the merit of its inclusion. Clause 1(1)(c) states that local authorities need to ensure,
“the fulfilment by every child concerned of his educational potential”.
Paragraph (a) provides that high standards must be promoted. The net effect of those two paragraphs will, if they are successful, be to ensure that each individual child receives an education that fulfills his potential to a high standard.
I should be grateful if the Minister could inform the Committee precisely what the inclusion of “fair access” contributes to those aims and could give me a precise definition of “fair” in this context. I fear that although it may look perfectly harmless in the Bill, the inclusion of a fair access clause without the appropriate definition could encourage local authorities to stifle diversity in favour of the “deadening uniformity” that the Bill is intended to get rid of.
I want to ensure that the Bill is remembered for its effectiveness, not merely its intention. I look forward to the Minister's response on both those matters and I beg to move.
I rise to speak to Amendment No. 2 standing in my name and that of my noble friend Lord Plant and the noble Baroness, Lady Stern. They asked me to make plain that they are very sorry not to be in the House this afternoon. They are members of the Joint Committee on Human Rights, of which I am also a member, which is paying an important front-line visit in the context of its current inquiry into human trafficking. I have, as it were, leave of absence to be here. In that context, it may be appropriate to mention that our concern arose as a result of our examination of the Bill in the Joint Committee on Human Rights. There has been a great deal of correspondence with the Minister and we very much appreciate his always fulsome replies.
The purpose of my amendment is to make the same provision for a statutory right to education in England and Wales as is made for Scotland in the Standards in Scotland’s Schools etc. Act 2000. I know that my noble friend will argue that that right is well established in the first protocol of the European Convention on Human Rights and in Article 28 of the United Nations Convention on the Rights of the Child. If that right is established in those conventions to which we as a nation have voluntarily put our names, why on earth not spell it out clearly in the Bill? The purpose of the amendment is to state categorically the right of the child in this context from which all else will follow. It also spells out the responsibility of the local education authority to ensure that that right is fulfilled.
The drafting of the Bill, it is fair to say, is a little tentative. It talks about target duties and,
“so far as it is possible”.
The amendment would provide that the basis of everything in our educational policy was the right of the child to education, established in law, which is paramount, and that that is the fundamental point of reference. We think it would strengthen the Bill. I feel very excited about much of what is in the Bill, but it is a pity that we have not taken the opportunity to spell out in it what we subscribe to in the conventions, and I do hope that my noble friend will feel able seriously to look at this.
Quite apart from his correspondence with the Joint Committee, the Minister has been good enough to have full correspondence with me as well, which I greatly appreciate. I know that he and the Government attach considerable importance to the ruling of the noble and learned Lord, Lord Bingham, in the Ali v Lord Grey School case in 2006, which rejected the Court of Appeal’s finding that the article had been breached by an unlawful exclusion and outlined the way in which the law in England and Wales fulfils the convention rights. As the Minister pointed out in his letter to me, the noble and learned Lord, Lord Bingham,
“explained that the responsibility for ensuring education rests on what has been called a ‘fourfold foundation’:
The first element being the duty of parents under Section 7 of the Education Act 1996 to cause their children to receive efficient and suitable full-time education either by regular attendance at school or otherwise;
The second element is the Secretary of State’s duty under Section 10 of the Education Act 1996 to promote the education of the people of England and Wales;
The third element is that the LEAs are required by Section 13 of the Act to secure that efficient education is available to meet the needs of the population of their area; and
The fourth element is to maintain the schools themselves; each school is under the direction of its governing body, who must conduct the school with a view to promoting higher standards of educational achievement at their school”.
We would all applaud that, but what it simply does not state is that the child has a fundamental legal right to education. We have missed an opportunity to state something that would put everyone in the position of having to ensure that that right is fulfilled.
I speak to Amendments Nos. 6 and 9, both tabled in my name and in the name of my noble friend Lady Darcy de Knayth.
Amendment No. 6 would correct an anomaly between academies and other publicly funded schools in the admission of pupils with a statement of special educational needs. At present, with an LEA-maintained school, parents can expect that, if the LEA agrees with their expressed preference, it will direct a school to take their child. However, with an academy, the child may not be admitted to the parents’ preferred school even where the LEA agrees with the parents’ stated preference. There follows a convoluted and time-consuming process, with mediation arrangements to resolve the disagreement between the LEA and the academy, followed by an appeal to the Special Educational Needs and Disability Tribunal, followed ultimately, if necessary, by a ruling by the Secretary of State. It seems unnecessary to take so many steps and for there to be so many more hurdles to jump through for parents of a statemented child who want their child to go to an academy than for parents who want their child to go to an LEA-maintained school.
The question whether academies take more statemented pupils than do maintained schools is rather different from the question of whether there is an unequal process. The extra hurdles faced by parents who want an academy place for their statemented child are still extra hurdles, however many statemented children there may already be in academies. The Minister said at Second Reading that he and his colleagues are looking to see whether they can make further changes in this area, and I look forward to hearing the result of these deliberations.
Amendment No. 9 is about support services and the impact that good support services can have on ensuring that every disabled child and every child with SEN can achieve their educational potential. No child can achieve their educational potential on their own. For disabled children and children with SEN, support services providing training, support and advice to teachers are crucial to supplement and complement the expertise that exists in any school. As noble Lords will know, training in SEN and disability is not required in initial teacher training, which makes ongoing access to such training all the more crucial for teachers. Ofsted’s 2005 report on the impact of LEA support and outreach services sets out how support service staff can bring in knowledge and skills which are usually unavailable in a mainstream school, and make a major contribution to a pupil’s progress.
However, support services are under threat. The practice of delegating funding directly to schools to support disabled pupils and pupils with SEN, while helpful in many ways, means that for some LEAs it is very difficult to maintain support services. In some cases, support services are not being purchased by schools because they do not have enough money to buy the services back. In other cases, it is because teachers are not aware of the support available to them or do not understand the difference it could make. According to Ofsted,
“delegation of funding to schools reduced the LEA’s capacity to provide targeted support for school improvement where the standards achieved by pupils with SEN were too low”.
That reduction in capacity could have a real effect on pupil outcomes.
Amendment No. 9 places a duty on LEAs to make sure that support services are available. I hope that the Minister will be able to offer some reassurance that the support and expertise, which make such a difference to the progress of disabled children and children with SEN, will continue to be provided.
Before I speak to my Amendment No. 7 in this group, perhaps I may make one or two comments about what has been said on the earlier amendments. First, I must express surprise that the Official Opposition want to remove the reference to fair access from the Bill. The noble Baroness, Lady Buscombe, said that she felt that it might stifle diversity, but on these Benches if we were given a choice between diversity and fair access, we would choose fair access any day.
I very much agree with the noble Lord, Lord Judd, on the need to give every child a right to an education. Our Amendment No. 24 on the education authority being the provider of last resort for children not receiving a suitable education would achieve roughly the same thing. I support the noble Lord’s wish to put this principle, based on the Convention on the Rights of the Child, at the beginning of the Bill. We also support the noble Lord, Lord Rix. I feel very sad that the evidence about the activities of some academies means that we need his Amendment No. 6. On his Amendment No. 9, I hope that he will support our Amendment No. 183, which requires SEN training for teachers at every stage of their training.
Amendment No. 7 would tie the highly desirable objective of promoting individual fulfilment to a personalised learning approach and access to the appropriate resources. When a similar amendment was debated in another place, the Minister said that personalised learning was a key part of the Government’s proposition in Clause 1. We agree with that and welcome it. He also pointed out that new funding would be available to support personalised learning. We welcome any new funding, but we question whether it will be enough. I shall say more about that later. The Minister then pointed out that the amendment would rule out some other local authority functions that also have a bearing on a child’s attainment, apart from teaching and learning, such as those concerning admissions systems, transport, pastoral support or extended services.
Our intention in tabling this amendment is to probe the Government on the practicalities of fulfilling their welcome commitment to personalised learning. It is certainly not intended to rule out all other local authority functions that have a bearing on a child’s attainment. Perhaps if we pursue this amendment, we ought to change it to “teaching and learning” and other support.
However, the DfES has stated that personalised learning complements and delivers aspects of the Every Child Matters agenda. The outcomes of this, which focus on giving every child the support they require whatever their needs, abilities, background or circumstances, link closely with the possibilities created by personalised learning to tailor learning and to tackle all the barriers to learning. The 2005 White Paper, Higher Standards, Better Schools For All, discusses personalised learning in detail. It refers to an education system that focuses on the needs of the individual child. However, the provision of personalised learning outlined in the White Paper focuses on,
“intensive small-group tuition in literacy and numeracy for those falling behind…and extra stretch for the gifted and talented”.
It seems to focus on outcomes rather than the whole child. While these two aspects are critical, I suggest that the document reflects a narrow view of personalised learning which focuses largely on its provision. For example, too many children struggle with their communication skills, those of listening and speaking. We need a national strategy to help all schools deal with that issue.
A commitment to personalised learning has very wide implications for the workforce and for the curriculum. The school workforce remodelling agenda, with its impact on the role of the teacher, the management of a wider range of professionals and on the organisation of a range of resources, has considerable implications for the way learning is structured in the future, both in and out of school. The NUT document, Bringing Down the Barriers, argues that two conditions need to be established for personalised learning to succeed. It states that a fundamental review of the national curriculum and its assessment arrangements is essential to meeting the aspirations of personalised learning and that young people need to be able to experience and teachers need to be able to provide much more one-to-one teaching. So these are the very broad implications of the Government’s new commitment to personalised learning. Can the Minister assure us that they will be looked at and that there will now be an entitlement for every child to personalised learning so that he or she can fulfil their educational potential, and that schools will have the appropriate resources to actually deliver it?
I support what has just been said and express my particular support for Amendments Nos. 7 and 9. One of the main aims of the Bill is to enable children to have personalised learning, which would entail local authorities having a statutory duty to ensure that the services are available. I am thinking in particular of services such as speech therapy which cannot be supplied by the regular teacher, however well trained. At the moment it lies in an ambiguous area because local authorities often claim that they cannot ensure the provision of speech therapy that children urgently need.
Communication difficulties can be the most terrible obstacle for those children with severe disabilities in this area being educated in mainstream schools. Without learning the skills of communication, they really cannot possibly fulfil their educational potential. This is an example of where a statutory duty on local authorities to enable a child,
“to have access to such teaching and learning support as may be appropriate”,
is a matter of crucial importance if the Government’s general policy is to go forward. I strongly support Amendments Nos. 7 and 9.
I should like to take this opportunity to explore what the Government currently understand by the words “educational potential”. How broad a definition of “educational” are they intending here? Do ball skills come under education, or is it merely being able to get through the numeracy hour that counts as education? What boundaries do the Government currently set on this? What do the Government mean by “potential” and how is a school or local education authority supposed to assess it? What instruments are to be used and what measure may an LEA apply to say “Yes, we have done this. This child has fulfilled their educational potential”? If we are putting a duty on authorities, we must give them some ability to know that they have fulfilled it. However, I do not really see how it can be done.
I am confused and should like some guidance from the Minister. My first point concerns Amendment No. 1, tabled by the noble Baroness, Lady Buscombe, on primary duties. I am not entirely clear what a primary duty is. The Education Reform Act 1998, which I regard as an important anchor point indeed for the education system, states that the Secretary of State, the local education authority and/or the governing body have to,
“exercise their functions…with a view to securing that the curriculum for the school…promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society; and…prepares such pupils for the opportunities, responsibilities and experiences of adult life”.
I think that that is a supremely good definition of education. Would Amendment No. 1 in any way change the emphasis? Would that definition remain in place if Amendment No. 1 were accepted?
Secondly, I entirely support the noble Baroness, Lady Buscombe, in asking the Minister whether he will kindly give a clear definition of fair access. Is fair access going to be defined in regulations? If it is, could we please see a draft of the regulations or have an idea of what they will say? I am not suggesting that there are not reasons for having a general, sweeping idea of fair access, but it will be very difficult when it has to be applied. There are not and never will be infinite resources for education, and choices therefore have to be made. Gifted children, for example, concern me very much. What is fair access for a gifted child? Is it simply fair access to a more or less “bog standard” school, or is it access to a school that will stimulate that child and cause him to succeed and fulfil his potential? I believe that nearly all children—not all children, but nearly all children—thrive on competition provided the competition is such that they can succeed at least from time to time. That inevitably implies that children must learn alongside other children of more or less equal ability and who have received more or less the same training and experience in life to give them a chance to be able to compete and to stimulate one another to succeed.
How will that be secured? In very large schools, it may be possible to secure it by having forms of streaming and dividing into different sectors within the school. However, we have at home, in a house belonging to my family, a small school. At the moment it has 12 pupils and is thinking of increasing the number to 18. These children have a very special need and cannot cope in a big school. They have failed in a big school—they have been a disaster in a big school—whereas they are doing very well in this small school. Small schools cannot provide for a huge range of academic ability.
What about ability in subjects that are outside the academic curriculum? I know of two children who have quite exceptional musical ability. What is fair access to schooling for a child who has quite exceptional musical ability? These are the kinds of question that have to be answered, and I think we need to know the kind of answers that the Government are going to give.
I should like to say a brief but warm word of support for Amendments Nos. 6 and 9 in the name of my noble friend Lord Rix. Amendment No. 6, whether we use the words “fair access” or not, would ensure that parents of a child with a statement had the same rights of access to an academy as they do to any other publicly funded school, which is surely right. I particularly warmly support Amendment No. 9. My noble friend has explained very clearly the value of these support services, which offer training and advice. I feel that they are crucial, perhaps particularly regarding autistic spectrum disorders. Many teachers do not really understand the problems surrounding these disorders and it is only when the support services come in and give hands-on support and training that they realise how to deal with them. As the noble Baroness, Lady Walmsley, said, her Amendment No. 183 will also come from the other side in dealing with the problem, in that it will ensure that teachers at all levels will have an understanding of special educational needs.
I support Amendments Nos. 6 and 9. In listening to the noble Lord, Lord Northbourne, I remembered how extraordinarily complex this issue is. While I do not necessarily agree with the implications of some of his comments, I hope that through discussion of this Bill we give some thought to implementation as well as the principles of fairness and access. I am acutely aware that while I stand here and we discuss access and the needs of such a wide range of children and abilities, there are large numbers of youngsters who simply cannot get a statement. They are excluded from getting what now they should have by right by a series of different interpretations of varying guidelines. I hope that in the course of the Bill’s passage we not only think about what we aspire to, but work towards what we should already have on the ground.
I follow what the noble Baroness has just said and commend it very much to the Committee. I am sorry that we have not been able to take Amendment No. 1 with Amendment No. 3, in the same discussion, because Amendment No. 3 puts particular emphasis on the well-being of children and matches it up with the substantial objective of fulfilling children’s educational potential. Because we have not taken them together we perhaps do not draw sufficient attention to the point made by my noble friend Lady Walmsley that the issues of well-being and fair access are very much part of what one wants to see in an educational system. One difficulty with the amendment of the noble Baroness, Lady Buscombe, is that it puts almost the entire emphasis on the issue of academic standards and of potential being fulfilled, in that rather specific and somewhat limited sense.
We live at a time when our schools are rightly continually driven to higher academic standards, but also when having league tables and the business of testing and examination lead to the great danger that we may leave out a large number of children who, when they have been left behind in primary school or the early stages of secondary school, gradually become more and more incapable of competing and holding up with the rest of the school community, as the noble Baroness and the noble Lord, Lord Rix, have implied. We must give great attention to statemented children, but also to a whole group of children above them who for one reason or another may find themselves bewildered by or not engaged in schooling—the children who do not get five GCSEs and so find themselves gradually drifting backwards. That is a group who are doing badly in our education system.
One other thing that I want to say relates to the well-being of the child. We live at a time when, socially, there are huge pressures on children. I am sure that we are all aware of the real distress that many children go through—in the most extreme case because they become carers for their own parents or, in less extreme cases, because their families have broken up or they have been moved frequently throughout their young lives, when the emotional strains on them are very great and it is difficult for them to cope. There is a real danger in the present structure of our education system, with its tremendous emphasis on passing a whole steeplechase of tests and exams, that we will lose sight of some of these personal difficulties that children face. That is where Amendment No. 3 and my noble friend’s Amendment No. 7 could put emphasis on some of the other factors that stand in the way of children properly learning.
The noble Lord, Lord Rix, referred to problems of concentration for some children, which is becoming more striking among not only children with learning difficulties but those with other reasons why they find it difficult to concentrate, which may be related to their home circumstances, or to a very mild form of Asperger’s or other things of that kind. Will the Minister give us some view of his understanding on the balance between these very significant and important objectives for education—on the one side, academic attainment and, on the other, the well-being of children? How, by looking at the issue of personalised education, can one go much further to help children at a very early stage to understand learning difficulties and emotional problems that may stand in the way of their attaining their full potential?
I did not mention the word “academic” at all. I suggest the noble Baroness reads the amendment again to note that I am talking about the need to promote high standards and the fulfilment of the educational potential of everyone concerned, which might not mean academic potential at all. We are talking about the whole broad spectrum of the educational front. In putting down this amendment I have not sought to talk about the academic side. I am talking about that individual child’s educational potential.
I support Amendment No. 9, tabled by my noble friend Lord Rix. I hope I have understood him correctly. A report, The Costs of Inclusion, was published in May this year by the University of Cambridge’s Faculty of Education. It was commissioned by the National Union of Teachers concerning inclusion in schools. Its final words are:
“The most striking aspect of this study is the goodwill of teachers who believe in inclusion and try to make it work but do not find their goodwill repaid by the level of professional support they deserve”.
The report says that it is clear that many teachers will still carry an unsustainable workload, and that,
“The evidence demonstrates unequivocally that the needs, interest and potential of many children with special needs are not being met”.
I strongly support my noble friend’s amendment.
I shall speak briefly in support of the two amendments of the noble Lord, Lord Rix. These young people with special educational needs are the ones who should concern us most. I believe they concern this Government very highly, and the Government have made that clear in introducing their White Paper. I therefore hope the Minister will be able to respond positively.
These amendments all relate to the fundamental duties on local authorities in Clauses 1 to 3 to promote fair access and the educational potential of all children, including those with special educational needs. They therefore go to the heart of the purposes of the Bill, and indeed the purposes of education at large. They are a very good place to start in our deliberations.
This Bill should also be seen in the context of the Childcare Bill, which some of us have spent a good part of the past two months debating, and which goes to the heart of the welcome comments by the noble Baroness, Lady Williams, about what we are seeking to do in our education system. There is no end point. We will never reach a stage where we believe the full educational potential of the entire cohort of young people has been realised. That is something we are working towards, but it will be a long road.
We are seeking to promote both higher academic and educational standards and much more intensive support, within the education system and services provided by the state at large, for the wider social, emotional and physical needs of children and their families. That is encapsulated in the work we are doing in childcare: the development of this whole new area of the welfare state in under-five services, and the ambition that every community should, as in Scandinavia, have its own under-fives’ centre that focuses on precisely the early identification of needs that the noble Baroness mentioned, and tackles parents’ needs in terms of additional support right at the beginning of a child’s life, so that you embed at the beginning of the process the support that they need to succeed. The Bill needs to be seen in a holistic way in conjunction with what we are seeking to do with childcare and the wider Every Child Matters agenda.
Amendment No. 1, moved by the noble Baroness, Lady Buscombe, would, as the noble Lord, Lord Northbourne, noted, introduce a new formulation of Section 13A of the Education Act 1996, entitled:
“Primary duties in relation to high standards and fulfilment of potential”,
in addition to a different new formulation of Section 13A, entitled simply:
“Duty to provide high standards and the fulfilment of potential”,
which the existing Clause 1 would add. I am not clear whether the noble Baroness intends to create this hierarchy of duties, which would in practice be confusing in view of the overlap between the two sets of duties, but that is not the issue. The issue is the substantive points that she is raising about the content of the new proposed duties.
The most notable difference between Amendment No. 1 and what is in Clause 1 is that it would remove our proposed duty on local authorities to ensure fair access to educational opportunity. I understand from what the noble Baroness said about her anxiety on the promotion of diversity that this may be based on her and her colleagues’ concerns that the fair access duty could be seen to favour community schools over other categories of schools, or to imply a forced introduction of banding or other mechanisms by a local authority, which would be highly controversial in the context of individual schools.
I hope that I can provide reassurance on both points. The fair access duty in Clause 1 applies in the context of all local authority functions relating to the provision of education. There is no case whatever for it leading to local authorities favouring one type of school over another. Indeed, one of the implications of fair access is that local authorities should be entirely fair-minded in their approach to all suppliers of education in their area and not seek to favour one over another.
All admission authorities, which include local authorities themselves in respect of community schools, will by law have to act in accordance with the new stronger school admissions code, whose aim is to promote fairer access than often applies at the moment. Local authorities will continue to be required to publish admission arrangements for all maintained schools in their area, and to work with the governing bodies of all schools which are their own admission authorities to ensure fair admission arrangements. That is another aspect of their duty to promote fair access. There is no implied power whatever for local authorities to use the fair access provision to favour community schools over other schools.
The noble Baroness and her colleagues are also concerned about banding. Local authorities will not be forced to introduce banding in admission arrangements, although many may choose this option to promote fairer access to educational opportunity in pursuit of their duties under Clause 1. Neither will local authorities be able to force community schools to introduce banding—I know that is another concern of the noble Baroness—as we intend to table a government amendment, in response to concerns raised in another place, that would require the agreement of a community school’s governing body before banding could be introduced at that school.
I fully accept that fair access is ultimately a matter of judgment which local authorities will have to make; it could not be otherwise. There is no single yardstick of fair access. It is a judgment not only about admissions procedures but about the allocation of resources that goes to the heart of decisions that local authorities have to take month in, month out. The important point about Clause 1, which replaces the existing duty for local authorities simply to provide sufficient school places, is that local authorities should be required to make that judgment and to explain it openly in their communities, whereas there is no such obligation at present.
I turn to the amendment of my noble friend Lord Judd. In passing I pay tribute to the Joint Committee on Human Rights, which rightly obliges us to give very careful consideration to all issues which have implications for human rights. The noble Lord and his colleagues do sterling work in that respect. I will reflect on what he has said. As always, he made a very powerful case. However, as he said, I have written to him setting out why we believe that there is a legally enforceable right to school education for every child at the moment. Inevitably, because I have been writing to noble Lords, I shall summarise the arguments that I have made in those letters, which have been played back to me in noble Lords’ remarks. I hope that he will forgive me if I do that to put it on the record.
The right to education is guaranteed by Article 2 of the First Protocol of the European Convention on Human Rights, and for children by Article 28 of the UN Convention on the Rights of the Child. The United Kingdom is a party to both of those, so these rights hold force in all parts of the United Kingdom. As my noble friend recognised, Scotland has gone down the further course indicated by him in its statutory provisions. We do not believe that there is a need for us to do so in England because existing legislation and case law achieve the same purpose.
In the recent case referred to by my noble friend which was considered by the Appellate Committee, the noble and learned Lord, Lord Bingham, set out fully how the responsibility for ensuring that education in England and Wales fulfils the convention rights, based on what Lord Wilberforce, in an earlier judgment, had called the fourfold foundation, is met. First, there is the duty of parents under Section 7 of the Education Act 1996 to cause their children to receive efficient and suitable full-time education either by regular attendance at school or otherwise. Secondly, there is the Secretary of State’s duty under Section 10 of the Education Act 1996 to promote the education of the people of England and Wales. Thirdly, there is the requirement on local education authorities under Section 13 of the Act to secure that efficient education is available to meet the needs of the population of the area in question. Fourthly, there is the fact that all state schools are under the direction of a governing body which must conduct the school with a view to promoting high standards of educational achievement. Taking those four together, they achieve the fundamental right to education that my noble friend wants.
My noble friend has also raised separately the issue of the right to education for children who are informally excluded from school. Under Section 19 of the 1996 Act, a local education authority must make arrangements for the provision of suitable education at school or otherwise for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Government take this duty further in the Bill by adding a new duty on local authorities, to which we attach considerable importance, to identify children who are missing from education. In my time as a Minister, that has been one of the most concerning aspects of educational provision that has come my way, including some very concerning Ofsted reports on the way in which local authorities seek to identify those who have slipped through the net entirely in terms of educational provision. That is also part of the reason why we support, against the concerns that have been raised elsewhere, the information-sharing database, which will ensure that local authorities have comprehensive data on the children in their area so that they can ensure that they are placed at and attend a school.
The duty is encompassed in Clause 4, which places a duty on local authorities to make arrangements to enable them to establish, so far as it is possible to do so, the identities of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll and who are not otherwise receiving a suitable education.
Amendment No. 6, spoken to by the noble Lord, Lord Rix, is about special educational needs and academies. I was glad to have the opportunity to discuss this and other matters with him yesterday, with colleagues from the Special Educational Consortium, on whom we depend greatly for advice on these and other matters. Academies are fully inclusive schools, which are required by the terms of the model funding agreement—a contractual agreement between the academy trust and the Secretary of State—to admit pupils with special educational needs on an equal basis with others. Academies must have regard to the special educational needs code of practice and any guidance issued by the Secretary of State relating to Sections 316 and 316A of the Education Act 1996.
Parents with a child who has a statement of special educational needs can make representations for them to attend an academy, as they can in respect of any other state school or independent special school. The local authority is bound to consider those representations, and if it agrees with the parents that the academy is a suitable placement for the child, it will inform the academy that it proposes to name it. In this situation, academies must consider precisely the same criteria as those set out in Sections 316 and 316A of the Education Act, as would the local authority in determining whether to place a child in an academy. Academies therefore are in a comparable position to other mainstream schools, as they can only refuse to be named if admitting the child would be,
“incompatible with the provision of efficient education for other children and no reasonable steps may be made to secure compatibility”.
Furthermore, if a local authority names a provision other than an academy in a child’s statement of special educational needs, the parents of that child already have exactly the same right of appeal to the independent Special Educational Needs and Disability Tribunal as they would for a maintained school and, if following a SENDIST ruling an academy is named in a statement, the academy should admit the child.
The noble Lord, Lord Rix, asked me what further steps we were taking to ensure that this right was enshrined. We have agreed with the president of the Special Educational Needs and Disability Tribunal that the Secretary of State would, as a matter of course, uphold the decisions of SENDIST, which means that academies will be placed in the same position as maintained schools in the enforcement of SENDIST decisions. That is the legal position. The data support the view that academies are fulfilling their special educational needs duties fully, as the noble Lord recognised.
Amendment No. 9 is tabled by the noble Lord. The aim of the special educational needs framework and the support that is provided to children with special educational needs and disabilities is precisely that all such children should be able to reach their full potential. This is reinforced by Clause 1, which states that local authorities should exercise their functions with a view to,
“promoting the fulfilment by every child concerned of his educational potential”.
“Every child” includes every child with special educational needs and disabilities.
Schools and local education authorities have duties to identify, assess and make suitable provision to meet a child’s individual learning needs. Local education authorities in particular have a duty, where necessary, to assess children’s special educational needs and to draw up SEN statements and then arrange the educational provision set out in the statements. Through a thorough multi-agency assessment, a child’s individual needs can clearly be identified and the provision tailored to help that child to reach his potential.
Regulations governing the provision of SEN information by local authorities require that the published information provides an explanation of the provision expected to be met from maintained school budgets and that which the local authority expects to provide itself from central funds. This means a clear indication of the actual services available from the local authority, and local authorities also have to keep under review their general arrangements for meeting children’s special educational needs—this, too, includes the SEN support services they provide.
Providing specialist support services from the local authority centrally is one way of making those services available, as the noble Lord recognised, but of course it is not the only way. Such services can be provided by one authority on behalf of a group of authorities, or they may be located within a school or a collaborative of schools. For example, this week we announced that we have granted specialist status to a further 14 special schools under the specialist schools programme to recognise their specialist expertise in meeting particular needs and to enable them to do a good deal more outreach work with other schools in their communities. A key requirement of the funding is that they should share their specialist expertise with other schools, particularly mainstream schools—that was strongly welcomed in the specialist schools community. We wish to take such arrangements further and steadily to bring more special schools within the specialist schools policy, as one way of ensuring that these centres of excellence are available more widely.
Amendment No. 7, tabled by the noble Baroness, Lady Walmsley, would alter the duties on local authorities in relation to high standards and the fulfilment of potential by more narrowly defining how the fulfilment of educational potential might be achieved. We do not believe that it is right to limit the duty in this way. I completely support the noble Baroness’s desire to make a strong point about the need to focus on more personalised teaching and learning. We entirely share that objective. We need to secure personalised learning for an education system that enables every child to fulfil their potential; only by that means will we narrow achievement gaps and realise our Every Child Matters ambitions.
The noble Baroness said that this would require a good deal of investment and I fully accept that. There has already been a 50 per cent increase in education spending since 1997 and we announced in last year’s White Paper an extra £565 million earmarked specifically for personalised learning; in addition, my right honourable friend the Chancellor announced a further £365 million in his Budget this year to enable schools to go further in providing for more individualised learning in schools, including, as the noble Baroness said, small-group and one-to-one tuition—but not excluding other forms of provision, including extended schools. Increasingly, schools will make that provision by becoming extended schools to meet the needs of their pupils.
We fully accept the noble Baroness’s observation that there would be further implications for the workforce and the curriculum. This will change over time. Another important area in which this will apply is the development of new specialised diplomas, which will come in 14 vocational lines and will be introduced from 2008. They will significantly extend the school curriculum, the opportunities available to pupils and the ability of schools and local authorities to meet the educational potential of all children. The Bill contains an entitlement to those specialised diplomas but I believe that over time we will wish to make available more such provision as resources allow and as educational philosophies develop.
Amendments Nos. 8 and 10, tabled by the noble Baroness, Lady Buscombe, would require local authorities to exercise their education functions with a view to promoting the fulfilment of every “person” rather than every “child” concerned. I understand that the noble Baroness tabled the amendments because she wants young people to be called “people” rather than “children”, and I completely sympathise with the objective. Legally we could have used the word “person”, and Section 13A of the Education Act 1996 uses that word. However, because this relates to the Every Child Matters issues raised by other noble Lords, I should stress that we used the term “child” rather than “person” because we wanted to align the duties in Clause 1 with the Every Child Matters agenda and, in particular, with the requirements of Section 10 of the Children Act 2004, which specifically refer to children.
We want there to be no doubt—this meets the points raised by the noble Baronesses, Lady Walmsley and Lady Williams—that the Bill and the Every Child Matters agenda go hand in hand and that the one reinforces the other. Noble Lords who spent a lot longer than I did attending to the passage of the Children Act 2004 will know that this establishes local authorities’ duties to promote the well-being of children in their area in so far as they relate to the five Every Child Matters outcomes, which include education, training and recreation. We want the wording of the two sets of provisions to be as compatible as possible.
Once we have established this important principle, it goes without saying that we cannot just add a reference to,
“promoting the fulfilment by every child concerned of his educational potential”,
without also defining more clearly whom this is intended to cover, as the existing duties in Section 13A of the 1996 Act are couched in terms of “persons” rather than “children”. Because of that, the definition of “children” in subsection (2) of new Section 13A sets out precisely what that word means, and I fear that it will include, like children of a similar age, the noble Baroness’s children.
I hope that I have made a reasonable attempt to meet the points raised in this important and interesting debate.
I thank the Minister for that helpful and detailed answer. I omitted to ask him whether he will inform the Committee—or perhaps he will write following this debate—of the Government’s response to The Costs of Inclusion report that I mentioned. If he would not mind writing to me, I should find it helpful. The report calls for an independent review of inclusive practice, which it says is now essential. If there is a government response to it, I should be grateful if he would send it to me.
I am not breaching any confidences by saying that tomorrow the Select Committee on Education and Skills in another place will publish its report on special educational needs, and it will cover many of these issues. The Government will, of course, be required to respond fully to that report and they intend to do so. Our response to the report will also be a response to the same issues raised in the University of Cambridge study, to which the noble Earl referred. I shall of course keep the House informed of our response when we make it.
I thank my noble friend for the very considerate response to my amendment, and I am encouraged that he will go away and consider it seriously. I shall not go over all the arguments again, but perhaps I may make two points as succinctly as possible. First, he returned to the judgment of the noble and learned Lord, Lord Bingham, but that was about how the obligations under the convention were fulfilled. The point that I make in the amendment, which I consider to be important, is that we are not saying that we are doing this because we have obligations under some convention; the convention is there because this is something that we believe is right. If in our society we believe that it is right to recognise the fundamental right of the child—full stop—to education, then it seems to me that it would be good and would strengthen the Bill to say that right at the outset, and then everything else follows on from that. It is about how we fulfil that right. It is not the case that we have to introduce arguments, if challenged, about whether we will have obligations under conventions here and conventions there. We are saying that this, at the heart of our education policy, is the right that we recognise, and everything follows from that.
I do not think that the noble Lord mentioned whether he is prepared to give the Committee a sneak preview of the regulations on fair access. I detected a fair amount of enthusiasm in the Committee for the idea of having one if it were possible, so that we could understand more clearly what the Government propose.
I thank the Minister for seeing me and members of the Special Educational Consortium yesterday afternoon in time for a refreshing cup of tea, which was much needed in yesterday's heat. I am sure that he will understand when I say that I should like to read his response in tomorrow's Hansard, together with my colleagues from the SEC, before we decide whether to take any action on Report.
In the mean time, I shall not press my Amendments Nos. 6 and 9.
I do not know whether the noble Lord will be able to answer the questions that I raise on the meanings of “educational” and “potential” and how they will be measured. If the noble Lord wishes, he can write to me, or I could raise the matter again on clause stand part.
The reason I am interested in “educational” is that the Government have said that they want to raise the level of funding to that of independent schools. There is a different definition of education in independent schools from that in state schools. It is a much broader acceptance of what education means in the generality of independent schools. Indeed, within state systems there is a lot of variation between the old grammar school model, which is pretty narrow, and other, much broader schools, which to my mind are much more exciting. If the Government are putting a duty on LEAs, what is it?
In measuring potential, we are getting into very sticky water with the introduction of contextual value added. In a way, it says that a kid of Afro-Caribbean background has less potential because of that thana child of Caucasian background. I feel deeply uncomfortable about that, and it is now being incorporated in the Ofsted definition of whether a school is fulfilling the educational potential of its children.
I very much want to know where the Government stand on that and how potential will be assessed. I do not expect the Minister to go into absolute, crystal-clear detail, but I want to know what the Government think. What is their opinion; what is their ambition on these things? How do they see this changing and developing the educational system over the next few years?
I thank the Minister for his response to my amendment and the others in the group.
I reiterate that the purpose of our AmendmentNo. 1 was to strengthen the commitment to high standards of education and the promotion of the potential of every child attending our schools. Again, I stress that I was talking about educational potential, not necessarily academic attainment, which can mean different things for different children. We would support what the Government are trying to achieve in a holistic way.
Perhaps it was the reference to primary duties that led the noble Lord, Lord Northbourne, to pull me up on this. Perhaps I should not have used the words “primary duties”, but I did so to try to add weight to the emphasis on the need for high standards and fulfilment of educational potential. The important thing is to try to shift the duty on schools to achieve that potential. Let us remember that, under this Bill and certainly beginning with the White Paper, the local education authority is supposed to be the commissioner not the provider. A solid duty is being placed on local education authorities to promote high standards and the fulfilment of potential, and to ensure that it is the school which carries out that duty and produces high standards and achieves fulfilment of potential among its pupils. That is the purpose behind our amendment.
I am grateful to the noble Lord, Lord Northbourne, for articulating rather better than I did the need for clarity in the phrase “fair access”. It concerns us, not least because the proposed new Section 13A(1)(c) mentioned in Clause 1 covers the issue of fair access, in requiring all children to have the chance to succeed and their educational potential fulfilled. Fair access is a necessary component of that goal and one could argue that to have the phrase in the Bill is otiose. Following on from the remarks of the noble Lord, Lord Northbourne, will the Minister consider writing to us on, or mentioning later this evening, the possibility of noble Lords seeing a draft of the regulations spelling out the definition of “fair access”?
For now, however, I thank the Minister. I accept his explanation of why the word “person” is not sensible, in that he wants to ensure that there is clear consistency with other Acts and the holistic approach to education, so we must stick with “children”. I will have a tough time explaining that to my children tonight. On that basis, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 1 [Duties in relation to high standards and the fulfilment of potential]:
Page 1, line 4, at beginning insert-
“(1) A local authority which is both a local education authority and a children's services authority shall ensure that their functions as a children's services authority relating to improving the well-being of children in the authority's area are exercised with a view to ensuring that the authority support their duty under section 13A of EA 1996 (duty to promote high standards in primary and secondary education).
(2) A children's services authority shall ensure that their functions relating to the provision of children's services must be exercised by the authority with a view to-
(a) promoting high educational standards; (b) in the case of a local education authority in England, ensuring fair access to educational opportunity; (c) promoting the fulfilment by every child concerned of his educational potential; and (d) supporting the improvement in the well-being of children in the authority's area.”
The noble Lord said: I shall speak to the amendment put down by the noble Lord, Lord Best, who unfortunately cannot come today, myself and the noble Baroness, Lady Walmsley.
The purpose of our amendment is formally to underline that the Every Child Matters agenda, as set out in the Children Act 2004, is directly relevant to the educational attainment of every child, and that the educational purposes of the Bill will not be fully achieved unless the agenda is part of its provisions. The point was argued by speakers from all three parties in the other place and taken to a vote in Committee. The amendment has the support of the Every Child, Every School coalition, which, as the Minister knows, is widely drawn and includes local authorities which would be given responsibility to give effect to our addition to the clause.
I imagine that the Minister will tell us that this is unnecessary, because there is already sufficient legislative provision. I offer two thoughts on that. First, there is a plethora of legislation making so many demands on so many busy people that, as a necessity, they must prioritise and decide what to do. An example which may be familiar to the Minister is the emphasis given in the past—and, I hope, the future—to work experience, and how, with the subsequent emphasis on enterprise education, it has taken second place. That is the kind of thing that happens when such a weight of initiatives descends upon busy people.
I have not counted the number of times the Bill refers to it being supplemented and complemented by guidance and regulation, but there are 480 pages of draft regulations and guidance. When that hits people outside, what do they do? They must prioritise. My concern is that the Every Child Matters part of what is necessary for the educational success of a child will get overlaid.
Secondly, the children or young people who will suffer most from any such sidelining are those who need the help most, who need their well-being and their education to be seen as a whole. I am thinking of children from fractured and disorganised homes where the parents are heavily burdened—perhaps both of them are at work—so there is stress and anxiety and the child’s needs are great.
When this matter was discussed in another place, the Minister, Jacqui Smith, recalled the words of the former Secretary of State for Education and Skills, who told the Education and Skills Committee that the White Paper that heralded the Bill was,
“all about driving up standards for the most disadvantaged children”.
She went on to say:
“We have made it clear that we are happy for the measure to be applied when judging the success of the reform programme as a whole and the White Paper and the Bill in particular”.—[Official Report, Commons Standing Committee E, 28/3/06;col. 52.]
It is because of the concern, felt strongly on all sides of the House, for precisely those children that I consider this amendment necessary. It is for them. I hope the Minister will give constructive consideration to this amendment. I beg to move.
In view of the groupings, I must point out to the Committee that if Amendment No. 4 is agreed to I cannot call Amendments Nos. 5 to 9.
I rise to support the noble Lord, Lord Dearing, and the noble Lord, Lord Best, who is not in his place, on Amendments Nos. 3 and 4 and to speak to Amendments Nos. 5 and 22, which are tabled in my name.
The Bill is about education, but when putting duties on local authorities and schools in order to improve standards, we must continually emphasise that that must always be done in the best interests of the child and to promote his well-being. That is what we say in Amendments Nos. 5 and 22. It could be that to cram a child for exams might improve his grades, but at the same time, it could make him ill. That would not be in his best interests and that is not what we want schools to do. Subsection (1) of the new clause inserted by Amendment No. 3 will ensure that the Bill, and the role of the local authority outlined within it, work towards the improvement of the five well-being outcomes for children set out in the Children Act 2004, not just educational attainment in isolation. Subsection (2) of the new clause stresses the importance of education in supporting the wider Children Act outcomes.
Local authorities have already embraced the provisions in the Children Act 2004 that created integrated children’s services and gave them a duty to improve outcomes for all children. More than 130 local authorities now have directors of children’s services and local authorities are in the process of developing children’s trusts to deliver better and more integrated services for children. Integrated services are also being reflected in the inspection regime through joint area reviews and the creation of the single inspectorate in the Bill. If that approach is to be embedded within all children’s services, the Bill needs to support the Children Act explicitly and reflect the joined-up approach being taken on the ground at local level.
When amendments related to Every Child Matters were moved in Committee in another place, the Government stated that the Children Act 2004 is sufficient to ensure that schools co-operate in the delivery of Every Child Matters. Practitioners tell me otherwise. They tell me that unless they have a proper, explicit duty, they just pay lip service. We on these Benches tried very hard to get schools included in the duty to promote well-being, but the Government resisted our efforts. Practitioners tell me that they regret that we did not succeed in our efforts. However, Amendments Nos. 5 and 22 reflect the UN Convention on the Rights of the Child, which enjoins all governments at all times to give priority to the best interests of the child. I believe it is a good thing to have the duties explicitly set out in Clauses 1 and 3.
In another place the Government told us that the provisions are not necessary as Section 10 of the 2004 Act already places a duty on local authorities that is far more powerful than the one our amendment proposes. The Bill focuses on schools and not just on other children’s services, so it really should be explicit. If the Government have an abhorrence of duplication, perhaps they should remove about half of the Bill, which re-enacts measures, powers and duties which schools and local authorities have.
When the matter was being debated in the Commons, my honourable friend Sarah Teather, Member of Parliament for Brent East, said that schools are about preparing well rounded young people for life. From a personal point of view, she very much regretted that she had missed out on some of the things that schools can give to children when she was concentrating on the academic things to achieve her very high grades. She pointed out that those who run schools should have at the front of their minds the well rounding of young people. Therefore, I believe that we should have these words right at the front of our Bill.
I rise briefly to support the amendment. In doing so, I reflect on the words of the Minister at the beginning, with which I very much agree, that this is part of a context of Bills and Acts. I agree with the noble Lord, Lord Dearing, that we sometimes need reminding what all these things are and have been about.
I support the amendment partly because it ties in with a later amendment about the duties of governing bodies in relation to Every Child Matters. Anything that supports Every Child Matters being enshrined constantly in the Bill is very important.
The amendment is more dynamic than the current wording. I am glad—I agree with the noble Baroness, Lady Williams—that the word “well-being” is there. We really will not get higher standards in our schools unless we focus on wider issues of welfare and well-being. Not all children are in school—some are truants, some are young carers and some are excluded. We ignore those children at our peril.
Last week the All-Party Parliamentary Group for Children, which I chair, had presentations from three directors of children’s services from various parts of the country. They carry out their duties in very different ways—different configurations of services and different staffing structures—but have at the core the well-being of the child. All those working with children are now expected to work towards the five outcomes, and this work is inspected by the joint area reviews and Ofsted.
I go back to the issue of well-being. Well-being must be in the functions of any school and any local authority. This amendment seems to tie in these responsibilities successfully. Therefore, I support the noble Lord, Lord Dearing.
We on these Benches agree that the well-being of children is and must be paramount. That is already enshrined in law in Section 351 of the Education Act 1996. It describes the purposes of education as being the,
“spiritual, moral, cultural, mental and physical development of pupils … and of society”.
We strongly support that.
We regret that the five Every Child Matters outcomes, which the Government have rightly promoted since the Children Act 2004, do not fully spell out that primary purpose of education and the care of children. I echo the concerns of the noble Lord, Lord Dearing, and the noble Baroness, Lady Massey.
None of this is inconsistent with attention to high standards in literacy and numeracy in education. Indeed, the most disadvantaged children are those best served by that attention. Surely, education is the best and, indeed many would argue, the only real means of overcoming disadvantage. That is why the Churches have been and remain committed to promoting and providing education and why we are so pleased that the vast majority of the new Church of England secondary schools, like the academies we are promoting, serve the most disadvantaged in our society.
As the right reverend Prelate has just said, we entirely agree that the well-being of children is paramount. In a sense, that is why I am not minded to support the amendments. I want to explain why.
In essence, the principles and objectives behind the amendments are already covered by the Children Act 2004, and the Bill must be read in tandem with that. We fear that the inclusion of a well-being duty in the Bill could upset the balance of the Children Act, which places a duty on each children's services authority to promote the well-being of children in the area to help them to achieve their optimum outcome in education, training and recreation.
The amendment tabled by the noble Lord, Lord Dearing, in particular, would place a target duty on local authorities. In the light of our first amendment, we do not feel minded to support that because we believe that it is the duty of schools to carry out that role. It also reduces the educational slant on local authorities' duties. We fear that it could skew Clause 1 in favour of welfare rather than educational attainment. That is the wrong set of priorities for the Bill. The Bill should focus on educational attainment.
I was not going to speak at this juncture, but my noble friend has allowed me to speak before him. I disagree fundamentally with the noble Baroness, Lady Buscombe, with whom I usually agree.
It seems extraordinary to me that, in the Bill, the only place where we spell out the five outcomes of Every Child Matters is under the provisions about recreation on page 6. Those are the outcomes that will underpin a child’s emotional, physical and social well-being, which are the things that enable a child to learn. The Minister has heard me say this on other occasions during discussion of other legislation, but unless we look after the emotional well-being of our children—this case has been put far more eloquently by my noble friend Lord Dearing and the noble Baroness, Lady Walmsley, than I ever could—they will never make the best use of their education.
I have spent most of my working life having what is probably a very skewed view of young people at the disadvantaged end of life and whose emotionaland physical well-being is often marred. As a consequence, they are in the schools at the bottom of the pile. Unless well-being is high on the agenda and we can take welfare to heart, education will simply not be attained by those children whom the Government so strongly aim to bring up to the same high standards that we want for all our children.
Perhaps I may respond tothe noble Baroness, Lady Howarth—the joy of Committee is that we can speak as often as we like, so let us make the most of it. I hope that I have explained clearly that there is an existing duty in the Children Act, which is powerful. Our concern is that reference to that duty in the Bill could weaken that, leading the courts to question why we felt it necessary to clarify that in certain cases in the Bill. I understand where the noble Baroness is coming from.
Again, very briefly, I support the amendment. We have gone over this point many times, but it was felt above all during consideration of the Children Act 2004 that the educational side was perhaps not as fully involved in the rest of the services that were going to be working together, and I wish to draw attention to the fundamental point about the well-being of children.
I am particularly concerned about special needs children, and the second part of the amendment, on promoting high educational standards, is particularly important for them. They must have the right attention and the right resources to see that they get that attention in schools. As we know from a number of reports that we have read, particularly from the National Union of Teachers, there is great concern about that. I am sorry that I, too, must disagree with the noble Baroness, Lady Buscombe. Nevertheless, on this occasion I really do think that the amendment needs to be incorporated into the Bill.
May I offer an explanation of my misdemeanour to the noble Baroness? My strong feeling, which is based on thinking about my home city, is so often that social deprivation and problems at home are a great obstacle to a child’s success in education. You cannot have what you want without considering this. It is a fundamental building block. That is what I am trying to get across. This is fundamental to the educational objective.
I support what my noble friends Lord Dearing and Lady Howarth have said, and remind your Lordships how things have come on since the 1970s when the committee on special educational needs was set up. The members of that committee were expressly forbidden from asking whether social deprivation was connected in any way with special educational needs. We shall prove how much we have advanced since then if we can have right at the front of the Bill the need to consider the well-being and welfare of the child alongside educational considerations. I believe that there is no one who does not understand that a child is not in a position to learn if their welfare and emotional needs are not considered. The two things go closely hand in hand. I very much support any amendment that would spell this out and make it absolutely clear.
I now realise that I am in the customary position of Ministers speaking from this Dispatch Box of agreeing with all the substantive points about policy that have been made in the debate. Indeed, I very rarely disagree with the noble Lord, Lord Dearing, who speaks such great common sense in these matters. I should say that the Government share entirely the objectives that he set out in his speech, but point out that the law does not need changing to achieve those objectives; it achieves them already.
The noble Baroness, Lady Walmsley, suggests that the Bill duplicates existing legislation in many places. I stress, because this is a crucial point about the Children Act 2004, that, where the Bill duplicates existing provisions, it repeals them, and brings them together in one place for ease of reference or consolidation. I do not believe—this is crucial to the discussion—that the noble Baroness or any other noble Lord would wish to repeal Section 10 of the Children Act 2004 and incorporate it into an education Bill. I know exactly what the reaction would be if I put that proposition to your Lordships. It would be duplication. I have discussions with our lawyers all the time about what such duplication means. It means that, if these matters become matters of contention, you are asking the courts to choose between two different sets of duties laid out in different Acts, the wording of which is very similar but not precisely the same because they are in different contexts in the two Acts. So that is, in substance, my answer, but it is not to do with the objectives set out by the noble Lord, which we entirely share.
Amendments Nos. 3 and 4 put forward by the noble Lord, Lord Dearing, seek to tease out the relationship between the duties placed on a local authority acting in two different but inextricably linked capacities: first, in its capacity as a local education authority carrying out functions in relation to the provision of education; and, secondly, in its capacity as a children's services authority, carrying out its functions in relation to improving the well-being of children.
The objective of these amendments is to ensure that there can be no confusion between the duties placed on local authorities in this Bill and the Every Child Matters agenda. Educational standards and well-being go hand in hand and this Bill has been consciously framed—as I said in response to a previous amendment moved by the noble Baroness, Lady Buscombe—to reinforce the Children Act 2004 in respect of the Every Child Matters agenda, which is central to all that we seek to achieve for young people.
For local authorities to fulfil their Every Child Matters and educational duties effectively, they need to be as joined-up as possible in their various complementary activities. That is why we have brought together education and children’s social services departments into children’s services departments, as noted by the noble Baroness, Lady Walmsley, each with a single director of children’s services. That is a major development on the past situation where there were separate directors of the two services. It is also why we want to see one set of complementary statutory duties to apply to local authorities. I think that the noble Lord, Lord Dearing, would support that objective. It is why Clause 153 enables us to eliminate entirely the terms “local education authority” and “children’s services authority”. They would be replaced throughout legislation with the single term “local authority”, which would encompass the educational and the social services roles. That is the whole purpose of this later provision in the Bill.
We therefore are not attracted to the juxtaposition proposed in Amendment No. 4 of different duties assigned to local authorities in relation to the provision of education, on the one hand, and the provision of children's services, on the other. We want a single set of duties on authorities acting in a far more joined-up way than has often been the case, which, again, I think that the noble Lord, Lord Dearing, would support. The key issue is that local authorities take all of those duties seriously. We can put them as much as we like in Bills, but they must be taken seriously. We seek to achieve that with the reforms that I have just mentioned; that is, the creation of single children’s services departments, supplemented by the development of children’s trusts, which seek to instil more services in a complementary relationship with local authorities.
The noble Baroness, Lady Walmsley, tabled Amendment No. 5, which would add a duty of well-being. This issue, again, is of vital importance, which is why we have already made provision in legislation for it. Section 10 of the Children Act 2004 already places a duty on local authorities which is far more powerful than that set out in this amendment. Every local authority which has education and social services functions under Section 10 is required to promote co-operation between the authority, its relevant partners and such other persons or bodies as the authority considers appropriate in order to improve well-being, as defined by the five Every Child Matters outcomes, one of which is education.
Re-stating aspects of that duty in the Education and Inspections Bill would serve to weaken the existing duty in the Children Act, as it could lead the courts to question why it was felt necessary to add it again and, in particular, whether we were seeking to qualify or circumscribe the existing wide-ranging duty by relating it mainly to educational provisions. In any event, to have the same duty expressed in two pieces of legislation is undesirable for the reasons that I have given.
As I said earlier, Section 10 of the Children Act obliges every local authority in England to promote co-operation between the authority, its relevant partners and such other persons or bodies as the authority considers appropriate. Those five outcomes are very clear: the physical and mental health, and emotional well-being, of children; protection from harm and neglect; education, training and recreation; the contribution that children make to society; and social and economic well-being. It goes without saying that these five outcomes promote not only the well-being of children, but also the best interests of the child, which is the second half of the amendment of the noble Baroness, Lady Walmsley. So we believe that Section 10 also meets this objective.
Taking Section 10 of the Children Act 2004 together with the provisions of this Bill will, we believe, meet the objectives which have been so well made in the course of the debate.
Before the noble Lord, Lord Dearing, rises to respond, perhaps I may make three points. First, our Amendments Nos. 5 and 22 are not like Amendments Nos. 3 and 4 which seek to repeal and amend the 1996 Act; nor would we want to repeal or amend Section 10 of the Children Act 2004. Can the noble Lord confirm that an alternative approach—it is one we might consider at the Report stage—would be to mention in this Bill the duties under Section 10 of the 2004 Act in order to emphasise the importance of the well-being and the best interests of the child without falling into the trap he has outlined? Would he like to respond straight away or shall I make my other two points?
We are in Committee and so I am happy to respond immediately. I know absolutely what my legal friends will tell me on this issue: that there is no need to mention in one Act the existence of another. The law is the law and the repetition of it in one Act does not give it any stronger force in another Act. I can hear the lawyers saying that even as the noble Baroness speaks.
That brings me nicely to my second point. The reason why it might be desirable to do so is to provide clarity for those reading the various Acts. The need to read one Act in the context of other Acts in terms of education policy is now becoming so complicated that perhaps we are reaching the point where we should have a codification of education policy, and possibly even codification of the policy relating to other services for children. Certainly regarding education, it is now almost impossible to consider the issues in any new Bill that comes before us without recourse to a great pile of other Acts on the desk beside one. I wonder whether the Minister might consider that.
Perhaps I may make my third point on an issue that I neglected to mention earlier. One of the many reasons why we wanted to put the well-being and the best interests of the child into this Bill is because of its concentration on consulting parents. The interests of the child are not always properly expressed by a parent’s response to any consultation. It is the child who should be at the centre of this. Of course parents are vitally important and should always be consulted, but the child has to come first. That is among the many reasons why we want to put these words into the Bill.
I thank the Minister for his reply and I am delighted that there is no difference whatever in the Committee on the objectives. My only concern is that when the 720 pages of this Bill, its regulations and Explanatory Notes descend on a children’s services director, he will remember that there is a Children Act 2004 as well. What do you do when 720 pages of legislation land on your desk? You have to get on with it. I worry that in getting on with this, the other legislation will be overlooked. Let us think about it.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 to 10 not moved.]
Clause 1 agreed to.
Clause 2 [Duties in relation to diversity and choice]:
Page 2, line 11, leave out “powers” and insert “functions”
The noble Baroness said: Amendment No. 11 would adjust the wording of Clause 2 to reflect more accurately the role of local authorities in carrying out their duties in relation to diversity and choice. It is not clear to me how the functions that the local authority will carry out under this clause are powers. A local authority may well perform functions or tasks which achieve diversity in school provision and opportunities for parents’ choice, but I do not see how they will involve use of their powers. The Oxford English Dictionary describes functions as,
“the mode of action by which it fulfils its purpose”,
and as “official duties”, whereas power is described as:
“Possession of control or command over others”.
This amendment seeks to establish firmly that local authorities play a functional role only in terms of local schooling. This is a drafting amendment which I sincerely hope the Minister is able to accept. I beg to move.
I may be able to deal straightforwardly with the amendment by saying that I propose to accept it. The purpose of Clause 2 is to ensure that local authorities exercise their functions under Section 14 of the 1996 Act with a view to securing diversity in the provision of schools and increasing opportunities for parental choice. I pay the noble Baroness the highest accolade possible by saying that parliamentary counsel believes that her change is an improvement to the Bill’s wording. I have never heard that said before. I am happy to accept the amendment.
Page 2, line 12, at end insert-
“( ) encouraging all schools to become foundation, voluntary or foundation special schools, and to acquire a foundation”
The noble Baroness said: I wish we could continue in that vein but fear that we will not. I shall speak to Amendments Nos. 12, 122 and 123.
Amendment No. 12 would require local authorities to exercise their functions with a view to encouraging all schools to become self-governing and to acquire a trust. Amendment No. 123 would place this duty on local authorities and the Secretary of State. This builds directly on the wording of the White Paper which committed the Government to that at paragraph 2.5. It states:
“At the heart of this new vision are Trust schools. Trusts will harness the external support and a success culture, bringing innovative and stronger leadership to the school, improving standards and extending choice. We will encourage all primary and secondary schools to be self-governing and to acquire a Trust”.
These amendments reflect the vision of the education system expressed by the Prime Minister and Ministers over the past few years. In his speech of 24 October, the day before publication of the White Paper, the Prime Minister said:
“We need to see every local authority moving from provider to commissioner, so that the system acquires a local dynamism responsive to the needs of their communities and open to change and new forms of school provision.
This will liberate local authorities from too often feeling the need to defend the status quo, so that instead they become the champions of innovation and diversity, and the partner of local parents in driving continuous improvement”.
This was not a new aspiration; indeed, it was the basis for DfES policy from as early as July 2004, when the Government published the five-year strategy for children and learners, which said:
“Local Authorities should recast themselves as the commissioner and quality assurer of educational services, not the direct supplier, a role which enables them to promote the interests of parents and pupils far more confidently and powerfully than the old days of the Local Authority as direct manager of the local schools and colleges”.
It was repeated in the 2005 Labour manifesto, which said:
“We want all secondary schools to be independent specialist schools”.
The policy came to full fruition in the White Paper, paragraph 9.3 of which states:
“We will support local authorities in playing a new commissioning role in relation to a new school system, at the heart of their local communities, and responsive to the needs of parents and pupils. They will support new schools and new provision where there is a real demand or where existing provision is poor. This is a very different role from acting as a direct provider of school places. We recognise that in many ways it is more challenging. But it also offers the scope to ensure that communities receive the education they deserve and aspire to”.
One could argue that the drive towards the new strategic role of local authorities goes even further back than that. After all, the 1992 Labour manifesto stated:
“We will reform the Conservatives' scheme for the local management of schools. All schools will be free to manage their day-to-day budgets, with local education authorities given a new strategic role”.
Clearly, the noble Lord, Lord Kinnock, now wishes that he had not made that commitment, but the present Government have taken it to its logical conclusion. The Prime Minister stated in the foreword to the White Paper:
“Our aim is the creation of a system of independent, non-fee paying state schools”.
Our amendment would place this commitment into statute.
We seek reassurances that the dilution of the proposals since the publication of the White Paper does not signal a desire by Government to abandon the trust school model and the independence that it brings. We feel that placing a target duty in legislation will ensure that decision makers bring about the creation of the system of independent, non-fee paying state schools to which the Prime Minister is committed.
This is not to say that there have not been encouraging signs from the Government. We are particularly excited by the new role of the schools commissioner. The role of the schools commissioner is, according to the advertisement for that position, to,
“champion Trust schools within the context of the reforms set out in the Higher Standards, Better Schools for All White Paper”.
The candidate briefing pack for the role stated:
“As the Schools Commissioner you will champion Trusts and Academies and advise the Secretary of State on the use of her powers”.
The pack also lists functions of the schools commissioner. These also point to a strong duty to encourage the development of trusts and academies. For instance, the schools commissioner will be expected to:
“Champion Trust schools and Academies as key levers in raising standards, particularly in deprived areas…Identify suitable potential partners for Trusts and academies and facilitate the matching up of schools with partners and sponsors, particularly supporting schools in disadvantaged areas…Work with business foundations, educational charities, schools, local authorities and other partners to help identify the right solutions”.
Final-round interviews were supposed to take place at the end of June, so I would be interested to know when the appointment of the schools commissioner will be announced. The description of the role is extremely encouraging. However, we feel that the move towards the system of independent state schools would be strengthened all the more if we placed an explicit duty on local authorities and the Secretary if State to encourage its development. Such a duty would be perfectly complemented by our amendments on community schools, which we shall come on to later today.
Finally, I would like to address the new clauses that I have tabled after Clause 32, Amendment No. 123. The first of these would define “self-governing school” and “Trust school”. While the Department for Education and Skills refers to the proposed,
“foundation school with a foundation”,
as a trust school, as evidenced by documents such as What Trust Schools Offer, the phrase does not appear once in primary legislation. I am sure that there are reasons for this. I suspect that it may have partly been due to a desire to downplay the radical nature of the schools by disguising it as an already existing category. But it is evident that the new trust schools are more than just foundation schools. As the Prime Minister said on 9 February:
“Trust schools bring together the freedoms of foundations with the governance of voluntary-aided schools harnessing the investment of external partners we have already seen with specialist schools and academies”.
The radical difference between trust schools and foundation schools can also be seen from the models suggested by the Government; for example, the What Trust Schools Offer document gives the examples of a group of local schools working with a trust and a group of schools spread throughout the country working with a single trust.
The potential for the development of national chains of schools run by business or charitable foundations is quite unlike anything that takes place at the moment. We feel that the proposed trust school deserves recognition in law beyond the description of,
“foundation school with a foundation”.
Our amendment also states that,
“A foundation, voluntary aided of foundation special school shall be known as a self-governing school”.
The distinction between community schools and self-governing schools is essential to the rationale for this Bill. The ability to govern themselves and set their own ethos is one of the main reasons why voluntary-aided and foundation schools flourish. We feel that placing the term “self-governing” into the Bill would demonstrate a stronger commitment to the vision of a system of independent state schools than at present exists. I beg to move.
I seek clarification from the noble Baroness, Lady Buscombe, who seems to be very busy this evening and somewhat got at. I read again recently the Second Reading debate in your Lordships' House, and at least one member of the party opposite spoke about the concern for the expansion of faith schools. If, as the noble Baroness says, it is seeking for all schools to become foundation or independent schools, surely that will increase the number of faith schools. There is a precedent for this. Since the academy programme began, one in three of the new academies is controlled by religious interest groups and three of these replaced non-religious schools. Is it the policy of the party opposite to increase the number of faith schools?
Perhaps the simplest way in which to respond to the noble Baroness, Lady Massey, is to say that our policy is that there should be freedom for schools of whatever nature. If they happen to be faith schools, that is fine. If the parents and the governing bodies want them, that is fine, too.
I think that I was probably the Back-Bencher to when the noble Baroness referred. I am disappointed not to find an amendment from the noble Baroness, Lady Massey, or someone else on that side of the House, dealing with faith schools, although I may not have spotted it. I was looking forward to having a serious debate on that subject, and a couple of my amendments touch on it. Allowing faith schools is one thing, but allowing them to select pupils who are only of that faith is something very different. Faith schools are an extremely constructive concept, but when they are allowed to become ghettos and to separate pupils in one way or another from the rest of the surrounding community, they can be very destructive. I hope that we will have a chance to discuss that matter later.
I do not quite agree with the noble Baroness, Lady Buscombe, but the duties of LEAs in relation to encouraging diversity and choice need to be spelt out a bit more fully. The Bill imposes a duty to consider parental representations. Clause 40 says:
“A local education authority in England shall provide advice and assistance to parents of children in the area of the authority”.
But parental preferences depend on having adequate information, and there seems to be an information deficit somewhere in this Bill.
How are parents to know about the schools in their area? What information about the availability of education provision is to be supplied to them and by what means? Admittedly, they can go round schools and find out about them, but what are the duties of the local education authority to supply information to parents about the diversity of schools in their area—the results of schools and their educational philosophy—in order for them to exercise their choice? Perhaps I have missed it and it is there but, if it is not, I hope that the Minister will give some thought to creating that information mechanism. I have some ideas of my own on how that might be done, to which I shall refer later—but in the mean time, I shall be grateful for a reply.
I apologise to the noble Baroness for not being present for much of her moving of this amendment; I took a brief respite. I hope she has not already answered this point: there is a concern that, with the increasing autonomy of schools, some of the children with special educational needs we were talking about earlier might suffer some disbenefit. It is plain that schools need to work in partnership together if we are to provide better services for these sorts of children, especially special schools with mainstream schools. That does not necessarily impede what the noble Baroness is seeking to do, but I would be grateful if she could say something about that point, if she has not done so already.
It will hardly surprise your Lordships that from these Benches we have very little agreement with what the noble Baroness, Lady Buscombe, has said. As far as the Government’s vision is concerned, we see—to some extent—the point of local authorities being commissioners of education. We do not object to that.
We do not share the vision of independent state schools but, to pick up the point made by the noble Earl, Lord Listowel, we see schools as serving communities and being part of a system that serves communities. That will become apparent as we argue through some of our later amendments. We feel it is important that, as part of that system, schools are not set apart from each other to too great an extent. Yes, schools want a degree of autonomy, but the freedom they want at the moment is freedom from direction by central Government. The constant burden of bureaucracy imposed on them is creating chaos in our education system and putting a huge burden on our teachers.
We want our schools to serve our local communities and collaborate with each other. There is no need to set them apart in their terms of governance in this way. In no sense do we think it necessary to set them up as separate foundations. They work perfectly well, and have done for many a long year, as state schools, as we used to call them, although now they are called maintained or community schools. We are happy with them working as community schools, and we think the term emphasises what we want from them: a service within the community.
Surely the point is that they have not worked well for many a long year. There is a whole collection of schools, even in some high-powered Conservative LEAs, that continue to perform miserably. The whole LEA structure of one familyof schools has consistently produced some bad performances that are very hard to deal with, whereas individual schools in all sorts of parts of the country which have taken their fate into their own hands, having had the luck to get a good headmaster and senior management team, have managed to make immense progress. That is the motor to improvement that has proved itself, whereas LEAs have not.
I hope we will not accept this amendment. Everyone knows that where we have ended up in the Bill, in comparison with where the Government started off in the White Paper, is the result of much controversy, heated debate and almost ideological positioning in the other place. The current Bill is a sensible balance. It is a compromise between the richness the Government believe can result from a diversity in educational provision, be that foundation schools, academies or faith schools, and the acceptance that there is a role for community schools. There always will be a role for them; they will be part of that rich tapestry of provision. The amendments seek to upset that balance; not just Amendment No. 12 but, as a natural consequence, Amendments Nos. 122 and 123 as well. I believe the Government have got the balance right when they say in Clause 2 that:
“A local education authority in England shall exercise their powers under this section with a view to…securing diversity in the provision of schools, and…increasing opportunities for parental choice”.
Those are two sound principles, which I believe are followed through in the Bill.
I think a reply to the noble Lord, Lord Lucas, is required. Obviously there are some good schools and some bad, but by and large outside our inner cities—which have often been Labour-controlled rotten boroughs—our community schools have frequently worked extremely well. There are variations. We all know that the key issue is the leadership of the school. I entirely endorse the moves made by the Government to ensure proper trainingin leadership for schools, and we have seen a considerable improvement in that leadership as a result of their activities. Over the course of the years many of our local education authorities have served us extremely well. The problems are concentrated in metropolitan areas—and, if I might say so, concentrated where there have been rotten political boroughs.
I must respond to that point. As leader of a Labour metropolitan authority, I hope the noble Baroness was not referring to mine as a rotten borough. The comment of the noble Lord, Lord Lucas, identifying local authorities as the cause of educational problems, was controversial. It is much more about economic disadvantage and parents not being able to support their children. All local authorities want to do well, although not all do as well as others. I accept that some local authorities have been too complacent, and have not challenged schools about the way they deliver services.
I hope my noble friend will resist this amendment. I think it is going the wrong way. The Bill is alreadya compromise. It has gone far enough. Local authorities will need to be providers because I do not see a great number of people wanting to come in and provide the services, and in those challenging inner-city areas it will be particularly difficult.
If I may say so, my noble friend Lord Smith has made my speech for me. I welcome the noble Baroness’s support for the post of the schools commissioner, who has an important role to play in the way she described. She asked me specifically whether the final interviews have taken place and when an announcement will be made. The final interviews having taken place, an announcement will be made in due course.
I want to try and avoid getting into these wide-ranging debates. I accept that there is general agreement across the Committee, if I can try and bring us together, that not everything has worked perfectly, and I did not take the noble Baroness as thinking that it had. There is a good deal of room for further improvement. If that were not the case we could pack up and go home, and we would not need the many hours I can see in front of us.
Many local authorities have done excellent work. I have visited Wigan and seen my noble friend’s team in play, and I pay tribute to them. We all accept that in some cases there has been too much complacency, to use his word, regardless of the political control of the authorities. I gently point out to the noble Baroness that her party now controls some of the great cities, and some of them still have improvements to make in their schools. I hope we can regard the improvement of education as a shared endeavour across the parties.
I move to the detail of the amendments. Amendment No. 122, tabled by the noble Baroness, Lady Buscombe, seeks to add definitions of trust schools and self-governing schools to the Bill. She rather flabbergasted me by saying that she thought the reason we had not put these definitions in the Bill might be because we were trying to hide the fact that there were trust schools and self-governing schools. If that were the case, there would have been no policy initiative in which the Government had been less successful than in attempting to hide the concept of the trust school. If the soldiers getting into the Trojan horse had been marked as the praetorian guard of trust schools, they would not even have got into the horse, let alone penetrated Troy and stood any chance of getting out again. There is no desire whatever on our part to hide what we are seeking to do. We could not have been more explicit. Trust schools do not appear in the Bill for very precise legal reasons. I need to get into the realm of technical detail here to satisfy the noble Baroness on why we have done this, but I will do so briefly.
It is not our intention that existing foundation schools with foundations—that is the phrase used in the Bill to describe trust schools—of which there are around 90, will be trust schools as they are understood in the Bill. Yet they would be captured by the noble Baroness’s proposed definition as their foundations were not established under the School Standards and Framework Act 1998. A trust school is in fact—as is explicitly stated in Clause 18 and the following clauses—a foundation school with a charitable foundation with particular characteristics acquired under this Bill, not under previous provisions. The phrase,
“a foundation school with a foundation”,
is used throughout the Bill precisely because “trust school” would cover existing schools if we used the term to refer to all foundation schools with foundations in the way that the noble Baroness proposes.
The noble Baroness’s amendment would unpick and require the redrafting of a huge volume of existing primary and subordinate legislation. The noble Baroness, Lady Walmsley, said that she wished we would undertake more consolidation. I love the idea of having everything in one place but—having brought before the Committee a Bill which already extends to 248 pages, and will be much longer when we have all the regulations to which the noble Lord, Lord Dearing, referred—I hesitate to think of the reaction if I were now to propose such consolidation, including the bringing of all the provisions in respect of existing categories of schools into a consolidated Bill. Therefore, we do not think that sensible.
Similarly, the definition of “self-governing” proposed in the amendment would not be helpful in the Bill. This definition ignores the differences between separate categories of school, each of which has its own legally distinct governance arrangements. Of course, the Government encourage and themselves use the informal use of “self-governing” to characterise the range of schools which are not community schools. The noble Baroness quoted the Prime Minister in that regard. Last year’s White Paper uses the term in relation to foundation and trust schools. But for the reasons I have given it would not be appropriate to include the term in legislation over and above the detailed provisions which already exist for the distinct categories of schools concerned.
I turn now to Amendments Nos. 12 and 123. The duty in Amendment No. 12 would require local authorities to encourage all schools to become foundation, voluntary or foundation special schools and to acquire a foundation. It will not surprise the noble Baroness to hear that, for the reasons given by my noble friend Lord Young, that would not be appropriate. It would be a step too far. It would not be appropriate in all cases for a local authority to encourage all schools to become voluntary or foundation schools with a foundation. The way in which these amendments seek to impose this self-governing model in all circumstances would work contrary to the policy of giving schools the freedom to decide for themselves how they wish to develop to meet the needs of their pupils, parents and the wider community.
Equally, requiring local education authorities to promote particular categories of schools in all circumstances would be inimicable to the very diversity and contestability we want to promote in the interests of parents and pupils, which might in some circumstances include the legitimate promotion of a community school. For those reasons we do not wish to go as far as the noble Baroness proposes in the amendment but, as she knows, we are going a long way in the direction that she wishes.
I thank the Minister for his response to my amendments. I have listened to him with some care, but I want to reflect further on his response and read it in Hansard. I accept that the Government are proud of what they have achieved on trust schools thus far. Indeed, I believe that at Prime Minister’s Questions today the Prime Minister praised specialist schools and the concept of diversity and choice. We commend that and believe that it is a step in the right direction. However, a more courageous stance was taken in the White Paper. Many of the points set out in the White Paper, which are not included in the Bill, are achievable. We should continue to strive to achieve those things.
The noble Earl, Lord Listowel, and the noble Lord, Lord Skidelsky, commented on children with special needs. As I said in my opening remarks to this group of amendments, local authorities should recast themselves as the commissioners and quality assurers of educational services and not be the direct suppliers. That allows them to focus on promoting the interests of parents and pupils far more confidently and powerfully than in the old days of the local authority, and allows them to play a much more strategic role, which the noble Lord, Lord Kinnock, asked for back in 1992. I refer to the schools commissioner, the role of the school improvement partners and, particularly with regard to special needs, the choice advisers. We have tabled later amendments which seek to take that point further. The choice advisers will give advice to parents on schools in their area. All those constituent parts lead in the right direction. We want more choice and diversity but the right advice and information must be available so that parents can find out what different schools offer to prospective pupils.
I want to touch briefly on the matter raised by the noble Baroness, Lady Massey. It is my understanding that becoming a foundation school cannot lead to a change in the religious character of the school.That is explicitly ruled out by Clause 18(4)(a), so encouraging the establishment of foundation schools does not necessarily equate with having more faith schools. We have to be careful about that. We will perhaps discuss the noble Baroness’s amendment later tonight but I stress that we recognise the great benefit that charitable organisations bring to the school system. Charitable organisations enable schools to strike out as independently run state schools with their own distinctive ethos. Independence, combined with the power of parents to choose, provides the great driver for better standards.
I was concerned that the noble Baroness, Lady Sharp, said that what the Conservatives are trying to achieve—which is what I believe the Government are trying to achieve—is setting schools apart from one another. That is not the case. I mentioned chains of schools. All over the country schools are encouraging other schools on best practice, giving advice and counsel and demonstrating through their own success ways in which other schools can raise their standards. We should all be proud and pleased about what is happening in that regard. People in all communities want to get involved in their local schools. The more we free up schools to allow them to develop their own ethos, set their own budgets, set their own style and allow head teachers to fulfil their role as leaders of their schools, the better it will be for communities and our children. It is disappointing and depressing that the Liberal Democrats want to hang on to the dead hand of bureaucracy. We should free up local authorities to play a much more powerful role in strategy, rather than having simply to provide each child with a school place and seeing that as the extent of their duties. The focus on a more innovative approach will allow local authorities to be more dynamic. I find the Liberal Democrats’ approach depressing, and I hope that they may come to see it our way, as it were, as they listen to the debates on this Bill.
I hope that the noble Baroness will forgive me for intervening, as I am really here as an observer and it is with some trepidation that I move into the field of education. As a member of a county council local education authority for some 12 years, I feel obliged to point out to her that local authorities have not managed schools in the way that she describes for well over a decade. Certainly, during all my period in Suffolk County Council the move was towards freeing up the local authority.
The noble Baroness must accept that, if local authorities are to be given the sort of strategic powers that she describes, they have to have a locus to be able to do that. If the schools are entirely free, the local authority can set all the strategies in the world that it wants, but it will be powerless to do anything about them. There is always a balance to be struck between the freedom of individual schools and the role of the local education authority as the strategic provider. It is about where that balance falls. In defence of the comments from these Benches, I point out to the noble Baroness that that sort of direction or micromanagement of local education authorities has been a thing of the past now for quite some time.
I failed to respond to the noble Lord, Lord Skidelsky, and I am anxious that he does not think it was any discourtesy. There are provisions later in the Bill about choice advisers and new duties on local authorities to promote information about schools in their area. When we come to those provisions, that will be the opportunity for us to debate the very important issues that he raised about how one ensures that citizens in each locality, particularly those who are less advantaged, have proper access to the information that they need to make informed choices.
Page 2, line 13, after “securing” insert “where appropriate”
The noble Baroness said: I shall speak to Amendments Nos. 14 and 15, which are grouped with Amendment No. 13. The noble Lord, Lord Skidelsky, said that we needed to explore the concept of diversity. This group of amendments to Clause 2 raises that whole question in relation to diversity and choice. In particular, the amendments explore the concept of diversity.
What is meant in the Bill by diversity? In current government-speak, diversity means a range of different types of school: faith schools and non-faith schools; academies; voluntary-aided schools; foundation schools; all sorts of different specialisations at secondary level. Indeed, it means everything but—in the famous words of an aide at No. 10—the “bog standard comprehensive”, or, which I would prefer, the common or garden community school, which has served many a community in this country very well over a considerable period of time.
Why are the Government and the Opposition so opposed to LEA-maintained community schools? I do not really understand why they have taken so against them. The average parent says that what they want in a secondary school is a good local school. The debate about diversity is partly about secondary schools, although it arises also in relation to primary schools. Parents want their children to go to a good local school. What is a good local school? I do not know how others would define it, but I was interested in a policy paper that I received from CASE, which set out features of what it considered to be a good local school. It makes 10 points about good local schools, but I will not read all 10 of them. The first points are interesting, and they pick up many of the points that I was making earlier and which are seminal to the concept of a good local school. It should,
“be an integral part of the local community, fostering constantly evolving shared cultural values and aspirations…Be a place where all parents and pupils feel welcomed and valued, irrespective of their ability, gender, race, religion, sexual orientation, social background and educational needs…Provide a happy, secure and supportive learning environment where pupils and parents feel cared for and respected as individuals and where diversity is celebrated…Provide a range of learning challenges necessary to help all pupils to become autonomous learners, who can arrive at their own view of the world, take control of their own lives and make their own choices as confident, responsible future citizens in a tolerant, multicultural society”.
Those first four points sum up very well what we are looking for in a good local school.
The premise on which the Government are working is that one gets that good local school only if there is competition between schools. The fashionable word is “contestability”; that there are other schools and that they compete with each other. At Second Reading, several speakers questioned whether there was any evidence to show that competition necessarily made schools any better. In some senses, the Government contradict themselves in simultaneously arguing that there should also be collaboration between schools. If you are setting schools in competition with each other for pupils and resources—that is effectively what is happening—it is difficult simultaneously to get those schools to collaborate with each other. We have no problems with the collaborative model. In many senses the federations and much that underlies this Bill, such as the school improvement partners, pick up the notion of best practice of stronger schools helping weaker schools. We are completely happy with that.
The Government’s vision of the process is very much London-centric, looking at schools in the metropolitan area. We see education as a system. As my noble friend Lady Scott stressed, if you are going to have a strategic authority and if there is a system, it needs some hand to guide it. We were the political party that pioneered local management of schools and devolving responsibility to schools. We have no problems whatever with that model, but it needs to have some central steering coming from a local education authority. The management is better coming from the community, through the local education authority, which is accountable to local people, rather than having the micromanagement of schools that we have seen from central government over the past 10 years or more. There is a vision of local accountability and schools linked up with one another; nursery centres linking up with primaries; primaries with other primaries and feeding through to secondary schools; and secondary schools working not only with each other but with further education colleges and local higher education institutions. That co-operative model is one with which we are happy.
This brings me to the central issue raised by this group of amendments. Amendment No. 13, the first amendment, seeks to insert the words “where appropriate” into line 13, so that Clause 2 would then require the local education authority to secure,
That picks up the London-centric issue, because the vision of multiplicity of offerings between different types of primary and secondary schools is very much London-centric. It is a vision based on major metropolitan cities in which parents can get to many schools without too much difficulty. But in many parts of the country there is a limited choice—at most two or three secondary schools are accessible, and only then if you are prepared to travel, often two or three miles across town.
In country districts there is often only one secondary school available to you. What do you do if it does not meet your needs? What do you do if it is a specialist sports college and you want a specialist language college? We would argue that in rural areas it is often inappropriate and impossible to provide the sort of diversity that the Government have in mind.
The second amendment in the group, Amendment No. 14, seeks to remind people of the important role of further education colleges, especially in post-16 education. We recognise that local education authorities are not responsible for further education colleges, but, in looking for a diversity of provision, further education colleges should not be ignored. Many post-16 students with not very successful school careers find new incentives in the courses that are available in further education colleges and often achieve quite highly. It is notable that colleges achieve a high popularity rating from their students. These young people enjoy being treated as young adults and the greater freedom of the comings and goings that they get in a further education college. We should also remember that further education colleges make, and will make, an important contribution to the key stage 4 curriculum that we shall consider later.
The third amendment, Amendment No. 16, argues that the key choice is not parental choice—that is often not on offer, because we have schools choosing parents, rather than parents choosing schools, where there is a shortage of places. The key issue is pupil choice. Although we will consider key stage 4 later, we Liberal Democrats would argue that this issue is where we really need to place the onus on choice. Just as those who move on to college at 16 enjoy the freedoms that they experience at college, so this sort of choice in relation to curriculum and career options needs to be available to all. Parental choice is something of a chimera and the real choice is pupil choice. I beg to move.
I am as depressed as ever by the Liberal Democrat vision of a grey, uniform mediocrity among schools, with no opportunity for diversity or innovation—or the spark of difference. Therefore, I start from a position of rather favouring the Government’s Bill as it stands, but I should be very interested in the reply that the noble Lord, Lord Adonis, will give.
Some of the points made in Amendments Nos. 14 and 15 might be tackled better by amending Section 14 of the 1996 Act, because it addresses these issues, but they are not well addressed by these amendments. Section 14 has not led, by and large, to a great diversity in the curriculum provision between schools. In fact, there has been a general drift to uniformity and some of the more interesting diversifications have tended to be snuffed out. That is partly due to the pressure of the examination system that we have adopted, but there seems to be a general slow move in that direction.
I would be delighted to see some greater duty on local education authorities, biting on Section 14 in some other way, to have a sharper attack on the curriculum diversity offered by their schools. The odd state school offers the IB, international baccalaureate, for instance. That should be enormously encouraged. Diversity does exist in the state system and I do not share the depression expressed by the noble Baroness, Lady Sharp, about our rural areas.
My children were in the Winchester state school system, where there is considerable diversity of provision in terms of size of primary schools and the style of their management. When you go into Winchester itself, there is a school that is laid back, a school that is academic and a school that is disciplinarian. All of them do well and different schools have different strengths. What was noticeable about the Winchester system at the time that I used it was the obstruction by the local education authority of parents who wished to make any kind of choice other than the school that was allocated to them. You had no access to school transport over to the next school in Winchester. If you did not want to go to your allocated school, you had to drive the seven or eight miles in yourself—you could not take the bus seven miles in to your allocated school and then get a little “hopper” on to the next one half a mile away up the hill.
The difficulties put by local education authorities in front of parents who wanted to exercise choice meant that it was fine for middle-class parents like me to exercise it easily, with perhaps some inconvenience, but a lot of people who were not so well off found that difficult. There is no such thing as a “good school” that is a good school for everyone. Yes, a school can be good, but different children thrive in different environments, with different curricula, with different attitudes to discipline, with different opportunities. No school can be perfect and wonderful at everything. Event the best schools that I spend my life looking at through the Good Schools Guide have many faults. Choosing the faults, attitude and style of the school is one of the great reasons for offering choice to parents, particularly the parents of kids with any form of special educational needs.
Although we might like to think that the provision in all state schools is wonderful and uniform, it is not. There are a lot of wonderful schools, but there are some real horrors. When you really care about a vulnerable child, you should give the parents a chance to make that sort of choice for their child, essentially by doing what this Bill will do—encouraging local authorities to make it more possible for parents to choose between what is there. Yes, if you live in the outer reaches of Cumbria, your choices are limited, but then you enjoy the beauties of Cumbria and you have to offset that against those limited choices. The basic principles that the Government are aiming for are entirely right and I very much hope that they will stand firm.
I hope that we do not accept these amendments. One of the big steps forward in the Bill is the attention that it gives to putting parents’ wishes and their representations more firmly on the statute book. That is important because, as someone who has been both a provider and a receiver of state education, I feel that the danger is that parents often feel like pawns in the system and are completely powerless at the moment. Taking that new provision out of the Bill would be a retrograde step.
I am also sceptical about the suggestion that all parents just want whatever their local school provides. I agree with the noble Baroness, Lady Sharp, that many parents do want a good local school, but they want to use their local school if it provides the education that they want for their kids. That is not the situation in many cases and we have to empower parents to have the opportunity to look at provision other than in their local school. That is what the Bill provides and it is a significant step forward.
It may be helpful for me to comment while we are discussing curriculum diversity. I wonder whether it would also be helpful to think about the means of assessing school performance, school league tables and the added-value element of those. I expect that we will discuss this further in relation to diplomas, but perhaps we should consider how we can better assess schools so that they can provide qualifications. I am thinking in particular of children with special educational needs, who might not fit well with getting five GCSEs but could qualify in some other way, and the school could get credit for that child’s achievement.
I am a bit puzzled about why the noble Baroness, Lady Sharp, is so sceptical about choice and diversity in education. Presumably, she would accept that they are valuable in many other areas of life, and it is the way that the independent sector works. It is not that they are all different, but all schools have some variations and parents and children have the freedom to choose which sort of school they prefer. A catchment area really should be a laboratory of educational ideas and practices, and the Bill goes a little way towards making that so.
I suspect that underlying the noble Baroness's attitude is the supreme value that she attaches to social cohesion. I agree that social cohesion is very important but it should not be at the expense of a good education for individual children. An education Bill is first and foremost about education and, inthat context, social cohesion is secondary. This amendment, and particularly Amendment No. 16, would give too much power to local authorities to object to new types of schools on the grounds that they damage social objectives.
Perhaps I can begin by taking this issue head-on because I think that it will feature more in our discussions in due course. The claim made by the noble Baroness, Lady Sharp, was that these reforms and what we are seeking to achieve in the Bill are somehow driven by the situation in London. She seemed to have in her mind a picture, widely shared but entirely erroneous, that in England there are essentially two types of communities: London, which has a high concentration of population, large numbers of schools and higher levels of parental dissatisfaction; and non-London, which has lower population densities—the noble Baroness seemed to have a vision of communities being served by a single school for the most part outside London—higher levels of parental confidence and “the good school”, the model of which she set out in the quotation that she gave from the document produced by CASE. I entirely accept the elements of the good school that she described. To be blunt, I think that they are motherhood and apple pie—no one would disagree with those elements. But it is a question of what schools do beyond that in terms of curriculum diversity and diversity of ethos and mission—the things that they do above and beyond providing as good an education as they can in all those fundamental areas, including their social responsibilities, to meet the needs of their pupils.
On London versus non-London, I hope that the noble Baroness will forgive me if I inject some statistics into the discussion, but I think that they may be useful for our future debates and they completely reply to the point that she made. The figures are that 41 per cent—nearly half—of households in England have five or more secondary schools within two miles, not only in London but in a large swathe of England, and 65 per cent have five or more within three miles. Three miles is a perfectly acceptable distance for parents to envisage taking their children to school. Only 14 per cent of households have just one secondary school within five miles. So, with great respect to the noble Baroness, I think that the position that she wanted to paint as the norm outside London is the exception, even outside London. The fact is that at the moment there is already a substantial degree of choice between schools in the system. Indeed, that will be the case in almost any country with a population density such as ours.
I wrote to the noble Baroness, Lady Williams, sending the results of international research that we published this week on school reforms in other parts of the world. It included Scandinavia, which in general is going down the line that we are seeking to follow of giving incentives to schools to offer greater diversity and choice to meet the wider range of needs of parents. It is a system where we expect all pupils to succeed in school and not, as was so often the case in the past, where a large proportion of them dropout without succeeding or gaining academic qualifications.
To my surprise, one of the findings of the research related to Finland. I had had a vision of Finland similar to that described by the noble Baroness, Lady Williams, at Second Reading. I thought that perhaps it was a great haven of social cohesion and tranquillity which did not involve any competition between schools. I was all ready to argue, as was argued when Finland was mentioned in another place, that that country is highly exceptional andthat Finland and England do not have many characteristics in common. In fact, the statistics in that paper are very revealing. In Helsinki, which is the part of Finland most like our country, half of parents expressed preferences for secondary schools which were not the local schools that they were allocated by the local authority. I am planning to go to Finland in September and, on Report, I will report back more fully about it. I know Sweden very well and have looked at its education reforms, but I am always in the market for looking at experiences elsewhere and I have paid close attention to them. But I suspect that we will find that in the parts of Finland which most resemble the communities in which most people live in England, the pressures for parental choice and diversity will not be greatly different from those that apply here.
If I may inject facts into the debate and invite the noble Baroness to reflect on them, we may achieve a greater consensus on these issues as the Bill proceeds through the House.
Amendment No. 13 would qualify the duty on local authorities to exercise their functions in relation to the provision of primary and secondary education with a view to securing diversity in the provisionof schools only where appropriate. If “where appropriate” means weakening the duty, for all the reasons that I have just given and as was ably set out by my noble friend Lady Morgan, we do not agree with that.
However, if by saying that local authorities should exercise their powers with a view to securing diversity in the provision of schools where appropriate the amendment simply means that they must act reasonably and within the limit of their powers, which makes perfect common sense, then of course I accept that, and that requirement is already set out in the Education Act 1996. The new duty to secure diversity in the provision of schools is framed in the context of local education authorities’ existing duties under Section 14 of the Education Act 1996 to secure schools which are sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education, and the section then goes on to define “appropriate education”.
Amendment No. 14 would require local authorities to exercise their powers in relation to the provision of primary and secondary education under Section 14 of the 1996 Act with a view to securing diversity in the provision of both schools and colleges. We are very sympathetic to the aims of the amendment. The Government are committed to increasing diversity of provision, with more specialist provision and increased opportunities for individual choice. We want that to extend to the further education sector as well as the school sector, and that theme ran through our further education White Paper this March.
However, for technical reasons, the Bill would not be the place to promote that duty. The duty in Clause 2 to secure diversity bears on local authorities’ duties in Section 14 of the Education Act 1996, which relate only to securing the provision of primary and secondary education. Responsibility for securing the provision of education for learners above compulsory school age, including from further education colleges, rests with the Learning and Skills Council under the Learning and Skills Act 2000 and not with local authorities. The amendment would therefore place local authorities under a duty to secure diversity in the provision of colleges which it would be impossible for them to fulfil. But the objective of ensuring diversity in college provision is one that, in principle, we entirely share.
Perhaps I can persuade the noble Baroness, Lady Sharp, and the Minister that the good work that they have done in new Section 13A(1)(c),
“promoting the fulfilment by every child concerned of his educational potential”,
which applies to Section 13 of the Education Act 1996, might usefully be extended to Section 14. The wording there is quite weak. It refers to,
“such variety of instruction and training as may be desirable”.
If that were strengthened by the concept in subsection (1)(c) of new Section 13A, under Clause 1 of the Bill, that would be a considerable improvement in the direction in which the noble Baroness, Lady Sharp, is trying to take us in Amendment No. 15.
I thank the noble Lord for his suggestion. I do not have a copy of the 1996 Act to hand and so cannot look at it, but we will consider it and perhaps come back on Reportwith something of that ilk. I thank him for his interventions. I suspect that we shall go on throughout this Bill disagreeing with each other, but that is fine.
I thank the Minister for his response and take on board his comments on further education colleges. I recognise that the Act applies to local education authorities, which I mentioned when I introduced the amendment. I said that I realised they were not directly under the responsibility of local education authorities, and implicitly, therefore, I recognised that technically the amendment was defective. However, I thought it was worth—indeed, it has been worth—throwing it in for discussion.
I am sorry that the noble Lord, Lord Lucas, sees us as trying to impose a grey world. We are not against choice, but we believe that under the current system much parental choice is a total chimera and we do not think that that will change. The Government are offering the country a system similar to that existing in London. Parents have the whole of the Greater London area to choose from, which has created chaos. Around 55 per cent of parents and children get their first choice of school in Greater London, whereas outside Greater London it is closer to 90 to 95 per cent.
I take on board the Minister’s statistics, and was surprised that as many as 65 per cent of households have five or more secondary schools within a three-mile radius. I recognise that in a town such as Guildford, where I live, there are five secondary schools, and there is that choice. In some senses, my vision of the community working together is based on somewhere like Guildford, where, by and large, there is a lot of collaboration and co-operation, but where issues arise over parental choice. My party is concerned about curriculum choice and the range of such choice available to pupils. That is a key issue.
I shall read carefully what various people have contributed to this debate, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Page 2, line 14, at end insert “, and
( ) ensuring that the education provided in schools in its area shall contribute to social inclusion and community cohesion in that area.”
The noble Baroness said: The amendment concerns social inclusion and community cohesion, which should be borne in mind in the decisions that affect the education provided in schools.
I take the point that these are regarded by some Members of the Committee as of secondary concern. Let me, therefore, step back to the original concept behind the community school, which I still believe to be of great value in a society such as ours. We live in a society which is multiracial, multicultural and in many ways divided. The community school came out of a socially profoundly split society, and one in which four-fifths of children went to a secondary modern school and one-fifth went to a grammar school. The community school was invented and designed to overcome that profound social division, which in my view deprived a large proportion of our children of any opportunity to take their education further, or, indeed, to achieve their full educational potential. I believe it is still the case that in many quarters children do not have the opportunity even today to meet their full educational potential.
My noble friend Lady Sharp spoke about her own strong belief in community schools. The Bill, as I understand it, goes beyond secondary schools and embraces primary schools as well. I find that a troubling development. The primary school was about educating a child to develop a sense of belonging to a community and the world of other children in that community. It was, and is, the concept of teaching children tolerance, inclusiveness and understanding. It is a very important part of what it is to be a young child.
I shall start at that point. I am frightened—perhaps the Minister can reassure me—that the introduction of trust schools and other schools at the primary level will go a long way indeed to fragment our society, which is not so strongly cohesive that it can risk that kind of fragmentation.
In secondary schools, the argument for some specialisation is strong, especially over the age of 14. However, many of us would want to see schools offering both vocational and academic courses, so that we begin to heal the ludicrous division between them, which has so distorted and deformed English education—though not Scots, Welsh or Northern Irish education in the same way. It is a rather specific feature of the English school.
Taking the view that what matter more than anything else are parental opinion and parental choice, I find it so extraordinary that in the Bill, which has tried to bring together contradictory concepts in a desperate attempt to make a single entity out of them, there is no level playing field between the community school, the trust school, the foundation school and the academy. That is the central point.
I shall not go on about this now because there are many later amendments, but, throughout, the Bill favours those schools that are alternative to the community school. It does so by providing them with much more money, by not obliging them to follow the national curriculum and by allowing them to go ahead without any form of ballot or parental preference being expressed. I find that objectionable. If someone wants to say that that comes back to social inclusion and community cohesion, I say that is an element in it, and that is why I waited to speak on this group of amendments rather than earlier. If there were a level playing field, parental choice would operate. It would operate between well-off parents and not well-off parents, southern parents and northern parents. But the Bill is not like that. It does not create that kind of basis of choice. One has to ask why.
I do not accept, because it simply is not true, what the noble Lord, Lord Lucas, said, about grey uniformity. From the beginning secondary schools in this country have been amazingly diverse—not just individual schools with an ethos often created by their heads and teams of school teachers. That has always been true. All of us know that there are brilliantly good schools in every single category, and some very bad schools. That is as true—dare I say?—of private schools as it is of academies, community schools or any other group of schools you care to name. If people do not believe me they can read the conflicting reports on academies, for example, where some are said to be near failing and others are doing brilliantly. Go and read the reports from Ofsted inspectors about individual community schools. Some are excellent; some are poor.
There is a general problem, as was rightly said by my noble friend Lady Sharp, with inner-city schools. Incidentally, that is a problem anywhere you go in the world. None of us has been able to solve it satisfactorily so far. If the academies can solve it, that is wonderful. The jury is still out and there is no final verdict on the issue.
We speak of the Bill as being about parental choice. As I have said, it could be, but it is not an open and fair choice at present. We speak of it being about improving standards. All of us want to see that, but we also want to try to ensure that standards are improved in the light of the need to maintain social inclusion. It is a very difficult set of requirements to combine. We would be less than honest with ourselves if we did not admit that there are real problems.
I like Amendment No. 18, tabled by the noble Lord, Lord Dearing, because it puts the school right at the centre of the community and asks what it can do for that community. Parents are particularly hard pressed, overworked, overstressed and often have little opportunity to give careful thought to exactly which school their child will go to—because they do not have the time to learn enough about those schools—in exactly the areas he speaks about. Those parents are least able to exercise choice because their lifestyles make it difficult for them to do so. We all know that.
For a while, I represented one of the poorer ends of Crosby, a very poor part of Liverpool, Seaforth and Waterloo. Parents constantly spoke of how difficult they found getting to parents’ meetings to discover exactly what was going on, and how scared they were of going to see the headmaster or headmistress to ask questions about their children. A great problem is that parents do not have equal power, articulacy or influence. Anyone serious about the education system must therefore see how that can be dealt with and compensated for.
I approve of the Government setting up a system whereby people can advise on choice. But when all is said and done, if we are to raise the educational level of the children about whom many of us were speaking, there must be a general improvement in the educational system, not one specific to trust schools or particular academies. I refer to those children with special needs and to the 60 per cent in the middle, neither of whom have the financial advantage of being able to choose between every possible kind of school, and to those living in such cramped conditions that talking about parental choice is frankly a bad joke.
That is why I am concerned about this Bill, and why we feel that there are contradictions at its very centre. I repeat: one of the great problems we will come to later in the Bill is that the parental choice playing field is in no sense level. I beg to move.
I speak to Amendment No. 18. It is a great pleasure to speak after the noble Baroness, Lady Williams.
A major strand of the Government’s thinking is diversity, choice and enabling parents to make choices in the best interests of their children’s education on the basis of good information, which will lead to more children going to good schools. A second theme is the objective of making all schools into good schools: where a school is unsatisfactory or failing, to provide for decisive and swift action to remedy the faults which stand in the way of it being a good school. To some extent, a principal advantage of letting market forces work is to exert pressure on underperforming schools to lift their game.
I shall argue a point brought out by the noble Baroness, Lady Williams. We must have some regard to a school within a community framework, particularly where the community is socially and economically disadvantaged. As schools increasingly become places for the extended school day—where there are recreational facilities for the community, increased participation and a focus for lifelong learning—I see them becoming valued and important centres of community life. That is especially true in poorer communities, where people do not go outside their community much. They can be housing deserts, with little to bring people together to develop a sense of community; estates where young rascals—if I may so describe them—get up to damaging mischief because they have nothing better to do and no sense of belonging or responsibility to the community. Amendment No. 18 may not be well worded, but we must take the needs of these communities into account.
Another of the Government’s themes is, rightly, parental involvement. The more you can involve a parent in a child’s education, the better it is for the child. There is lots of evidence on that. However, if a child is moving into a comparatively middle-class area, can we see parents who are not well educated and who live in social disadvantage feeling articulate or confident enough to go to a parents’ meeting and stand up and fight for their child and class interests in such an arena? I have my doubts.
Some of these young people, particularly the boys, are not doing well at school. Because the school in their community has failed, they must move to a school in a better-class area further away. It may be within two miles, but those are two miles in which they are more likely to truant and become a nuisance to themselves. They are possibly well into truancy already, but the more difficult it is to get access and keep a finger on them, the greater the risk. These are supporting arguments for caring for communities which have nothing much going for them.
I argue that local authorities—and, in another amendment, admissions forums—should take the value of a school in a community like that into account. If it fails, they should replace it with a new school on the same site or in the community, to keep the community alive rather than educationally abandoning it. They should exert a moderating effect on death by attrition through loss of numbers while the process of regeneration and re-establishing a school takes place. It is the kind of consideration we can all understand. It is a question of how we can give effect to what I have in mind.
It is a great privilege to follow those words from such an expert in this field.
I say first how much I agree with the comments of the noble Baroness, Lady Williams, on the early days of selection. When she was Secretary of Sate for Education, while I was trying to make my way in politics, I was pleased with what she did and supported her. Now, however, times have moved on. I shall respond to the two arguments that have been put.
The first is that people really just want a good local school; the second that people who are disadvantaged or less well off are unable to choose. Both those assumptions are, in large part, false. People do not want a good local school. More and more, they want the best possible school for their children. The idea that parents will now in some way just accept a good local school has just gone. Parents and children do not want that anymore. They want the best education, opportunity and the best chance to fulfil their lives’ potential that they can get. You can only get that through diversity and choice in the system.
I absolutely agree that parents want the best school for their child. My point is that the Bill presents them with a choice heavily weighted by the fact that trust schools or academies are likely to have a great deal more money spent on them. They will therefore be able to employ more teachers, and have more equipment and often brand new buildings. They are not choosing between like and like. They are making a heavily biased choice. Many parents would like to choose a good community school, but are not being offered the choice on the same basis.
This is a balanced Bill. The key is that the Government in their strategic role for local authorities do everything they can to ensure a level playing field. Evidence from across the world shows that choice works when there is intervention to protect and support the disadvantaged. That is why this is a changed and balanced Bill. If it produces inequality, that would not work, but we have moved on from the idea of the good local school as the noble Baroness was describing it.
The second element is choice. The polling evidence is that people who are less advantaged want choice more. I believe the future for education and public services is empowerment. People from all strata of life—the kind of kids I went to school with at a secondary modern, not a posh school—are able to choose the school they want. If people are empowered, they will make the right choice. The idea of “We know best for people” has gone.
For that reason, I strongly support the Bill, and I commend to the Committee the point made by my noble friend that it is a balanced Bill. Reassurances are built into it and the drive towards fairness is essential to it. It should be supported.
I am in serious trouble here because I cannot think of anything that the noble Lord, Lord Gould, said that I disagree with. I also agree with the noble Lord, Lord Dearing, but that is not such a surprise to me. However, I am not sure that these sentiments belong in Section 14 of the 1996 Act. If I understood the noble Lord, he is concerned about the importance of schools to the community. He feels that LEAs should be careful before they rip schools out and should take care to support them and give them added emphasis because they are important to the community, whether in a Hampshire village or the suburbs of Liverpool. I agree with that and perhapsit is somewhere in education legislation. If a Government ever get round to providing us with an updated, consolidated set of education legislation so that we can find the right place without an army of advisers, we may find somewhere to put it in the Bill. If the Minister is feeling kind towards the noble Lord, Lord Dearing, I hope he will direct us in the right direction.
I find it difficult to understand what Amendment No. 16 is about and what it would require local authorities to do. I agree with the noble Baroness, Lady Williams, and I was not calling schools grey—I was calling the Liberal Democrats’ vision of what schools should be grey, but perhaps I misunderstood it. I would never call schools grey; I spend my life celebrating their achievements.
What are we asking LEAs to do in terms of Section 14 of the 1996 Act, which relates to the provision of new schools, to ensure that schools contribute to social inclusion? When we come to admission arrangements, I shall be arguing a radical line because it is important that schools are open to every section of the population. I have lived most of my life in middle-class parts of London and “community” is a diverse word there. There are schools that draw a particular community. I can think of a good primary school that draws children from the Kosovo Albanian community that is widely spread over north London. In my patch of south London, communities are not a matter of this or that street, but are broader and interwoven. It is hard to devise admission arrangements that provide for social inclusion and community cohesion without getting very odd arrangements for admission and the provision of schools. I am not clear how they would work, and that worries me because they might work in ways that we do not want.
I warm to the arguments put forward by the noble Lord, Lord Dearing. In my experience, they relate to the realities in too many of our deprived communities. I hope noble Lords will forgive me if I reflect for a moment that the first amendment I spoke to in this Committee was about putting the right of the child to education at the centre of the Bill. If the potential of our young is to be fulfilled, the ideal is to have teachers and the community pulling together. It is important for the school to be the focal point for the community. It should be a place in which parents feel at home and, ideally, a place in which they see things happening that are relevant to their own fulfilment. I do not believe a school’s activities should be limited to what goes on with the children in the classroom. There is potential for activities for parents as well, particularly if a lot of capital resources are put into a school.
What worries me is when I think of communities in disadvantaged west Cumbria—the county in which I live—where dedicated teachers put everything into preparing a parents’ evening and only two or three parents turn up. I referred to this at Second Reading. That is not the experience of many Members of the Committee. We operate our own lives in a different context. Therefore, when my noble friend Lord Gould says that we have moved on and that parents want the best possible education, I agree that that is true for a lot of parents. But I am concerned about children whose parents are so much at the bottom of the pile that they do not turn up to parents’ evenings, who take no interest and have no aspirations for their children. That is wrong in terms of social equity and social justice, but not to address, it is short-sighted because it may deprive us of some super people who could make a great contribution to the future of our society. From that standpoint, we need to hear more from the Minister and his colleagues about their commitment and drive to get resources effectively into the most deprived and disadvantaged communities in our midst.
In the end, politics is about priorities. Among my noble friends, I hardly dare use the old word because it will identify me as belonging to a previous age, but in my political philosophy socialism is about priorities. We have to make choices and the priority is getting resources to the most deprived. Without, I hope being cynical on this or being regarded as irresponsible, there is some evidence that the brightest children will always look after themselves if they have a reasonable social background and will do well one way or another. Of course we want to maximise that opportunity, and I do not take an extreme position. What really matters is the need to concentrate our attention on what we are doing to free children from the poverty trap. On the coast of Cumbria the situation continues from one generation to the next; it becomes institutionalised. That is the depressing feature. We need to hear more about this.
I make another broader point that relates to the issue. I am a governor of the London School of Economics, and have been for a number of years. One of the things I enjoy most as a governor is that I am able to serve on the committee on access, which is about extending access to the school to a wider cross-section of students. Today I spent nearly three hours at a summer school for children from inner London schools. The committee is also about enabling children to get better opportunities in higher education, whether or not it be at the LSE.
In the committee on access, one of the things that we worry about and can get terribly concentrated on is where we stand on the balance between the private and the public sectors of education. It is something to worry about at the LSE because we are very attractive to the private sector. We ask, “Are we getting enough people from the public sector?”. But then we say, “Hang on a moment. When we look at our figures from the public sector, what are we talking about?Are we talking about advantaged middle-classpublic sector schools in advantaged middle-class communities, which might in all sorts of ways be schools in the private sector, or are we talking about how we really provide horizons for those trapped in something completely different?”.
I must say that today I came away from one of the liveliest sessions that I have encountered refreshed, challenged and cheered by what I experienced with these young people. I was looking at them and I could not help thinking that this question was very relevant because there is an element of self-selection, however we try. Some will get to that summer school, but the ones that perhaps should most be there will not. The issue always is what the Government can do to ensure that we keep the most deprived, the most disadvantaged and the most entrapped central to our vision, and how we are trying to assist them.
I oppose this amendment for the reasons given by the noble Lord, Lord Lucas: it is unclear what duties might be imposed on local authorities to contribute to social inclusion and community cohesion. It is unclear what these things mean, and the duties they involve are even less clear. What is clear is that we have a confused view—and I admit to sharing it—of what we mean by community. It is hard to follow the moving speeches of the noble Baroness, Lady Williams, and the noble Lord, Lord Dearing. Underlying their views is essentially a static notion of community as a geographically narrow place where a settled group of people live and work for most of their lives, and where the school, like other buildings or institutions, is at the centre of that communal life. Yet most communities are not like that today, and, if they are, they are becoming increasingly less so.
We have geographically scattered communities. How many jobs will people have in a lifetime? How many times will they move house? Professor Amartya Sen talks of multiple identities. It is not that sort or world. Increasingly, people want good schools for their children and the appeal of a local school to a local community is becoming less significant than having a good school to which they have access.
I agree that social inclusion is important in the traditional sense whereby everyone should have access to good schools, but that is not the same as having a local school which is at the centre of an old-fashioned community. In that respect, this amendment is somewhat misguided.
A couple of years ago, as a member of the board of the Audit Commission, I was part of a team that looked at work on choice in public services. The public survey showed that there was not unalloyed joy at the idea of choice in public services. Most respondents expressed concern about how they could make those choices, whether they would have the right information to make them. They were concerned that the choice agenda was a way of removing responsibility to provide good services and leaving it to people to make choices—in other words, shifting responsibility to the consumer to make the right choice rather than it being for the state to provide services.
Respondents were very clear that they might take one set of views when they were shopping at Tesco or Sainsbury’s but they did not want to make those sorts of choices on education or health. That said, these Benches feel that if one takes a market view of public services and if choice is to be a big issue, we want genuine choice in a free market. The skewing of the market proposed in this Bill is such that, if this were a private sector concern, the Office of Fair Trading would leap in almost immediately.
I say to the noble Lord, Lord Gould, and the Minister that we do not want to take away from people the choice to remain with their local school if they want to. Please do not remove that by starving it of resources in order to spend those resources somewhere else. Let us have a genuinely level playing field.
Further to the point made by the noble Lord, Lord Judd, we must accept that not all parents are either able or willing to exercise choice and to go through these processes in the same way. We must never see the situation where a child’s future is decided by the aspiration of the parents and not by their own ability or their worth.
I was not going to speak in this debate, and I realise that time is pressing on, but I just want to make a point that is crucial to the core of the Government’s Every Child Matters agenda. In that agenda, the school is seen as a central place for the delivery of many services. That goes back to the discussion about what a school is and what it is to its local community.
I went to school an hour’s distance from where I lived on my working-class estate. That meant that my parents never went to anything, even if they might have done anyway. My local primary school in my village in Norfolk is the centre of our community life, and I can see the Every Child Matters agenda working beautifully in terms of extended schools. However, this issue needs to be thought through as we look at the range of academies and trust schools. We must ask whether we see this central tenet of the Every Child Matters agenda in every place or whether we are absolutely clear that in some schools it simply cannot work.
I want to comment on the remarks made by the noble Lord, Lord Dearing, for two reasons. I think that he will recall that at Second Reading I made similar comments about the importance of schools being at the heart of the community. I therefore support that. However—not daily but periodically—I have had to think about decisions such as those to which he referred.
About five years ago, it came to our attention that a school serving an out-of-town council estate primary school was producing poor results. Parents were beginning to vote with their feet, moving off the estate, even though that was inconvenient for them, to go to other schools where performance was better. We examined that and I listened carefully to the remarks of my colleagues. I was sympathetic, so we kept the school open and the local authority gave it additional support. I must report to noble Lords that, two weeks ago, the school was put into special measures. So I feel responsible for the fact that for five years, despite all the support, because of all the problems on the estate and in the school, where market forces were ensuring that better parents moved off the estate, and so on, I had not been offering children the quality of education that I felt I should.
I have great sympathy with the concept of the school being at the heart of the community. I believe that. But we must also ensure that we are providing good-quality schools, because we cannot support schools that are not providing that basic quality of education.
I did not intend to speak, but we should be careful that we do not patronise people by saying that they either cannot or do not want choice. It comes across to me that, somehow, the only people who can exercise choice are well heeled middle-class or upper-class people. My children went to their local primary school. I have stood in a playground and listened to parents—ordinary, working-class parents—talk about what they want for their children. It did not seem to me that they were disinterested in choice.
It is not an either/or situation. I reject the idea that the Bill is skewed to undermine community schools or to deny them funds. What would be the motivation for a Government who believe in Every Child Matters and have spent enormous sums on schemes such as Sure Start and on legislation such as the minimum wage to do that? There may be all sorts of reasons for arguing against some of this legislation, but not, in my view, some of those adduced by the noble Baronesses, Lady Scott and Lady Sharp.
Although I respect the sincerely held views of the noble Lord, Lord Dearing, about community schools, the Bill is not designed to say that we do not want good communities. Of course we do, but there will be circumstances in which schools fail to meet the needs. We know that that is true. I incline to the view of the noble Lord, Lord Skidelsky, that what we want is a sort of laboratory of education. There is no set end to what we are trying to achieve. There is value and richness in diversity of provision. It is true that some parents will probably need help in making a choice; that is there in the choice adviser. We should not deny them that; we should not say that there is only one solution to the problem. I do not believe that there is. I believe in good community schools but I believe that good foundation schools, good trust schools and good city technology colleges also have something to add to that rich mix.
I know that we want to move on as swiftly as possible, but The Costs of Inclusion has raised again the long-standing concern that sometimes schools that are successful at including pupils—difficult, challenging pupils, perhaps—are the victims of their own success. A primary school head teacher says:
“The problem is that we are becoming a victim of our own success. It’s word of mouth and then because we do so well with special needs we create a demand and then this imbalances the proportion of children we’re able to cope with”.
I am concerned that we might have a good local school that is very socially inclusive and follows the values of Every Child Matters, which might find itself beginning to perform poorly in educational results because it happens to be taking on the more challenging pupils. Then it dips down: parents opt to go to another area and the school does not get the support that it needs. I should like some reassurance on that point. That feeds back to what the noble Baroness, Lady Williams, said about different playing fields. It seems unfair that a school that is being inclusive and working hard in that area, struggling for a long time and working as best as it can, should lose out because another school that opens nearby has more money and more flexibility to benefit it. That is my concern.
Before the Minister replies, perhaps I may respond briefly to some points. To the noble Lord, Lord Lucas, yes, the amendment is probably in the wrong place. To the noble Lord, Lord Skidelsky, you have a model of society that is valid in many places, but in others it is less so. There are communities that are static because of the people who live there, the lack of opportunities in the area and the kind of premises in which they live.
On the point about a good man trying to help a community and it going wrong, I am very much for government policy. Be impatient. Give him a year and then shut it and start again. I would be ruthless in the interests of the children. So there is nothing between us on that. I am just saying that there is an issue here that should weigh in the scales. I am not saying that it should be mandatory; I am just saying that it is a factor that should be taken into account when decisions are made.
To the noble Lord, Lord Judd, who hails from West Cumberland, I say that I have not been to Workington for many years but, when I used to go to West Cumberland and Workington in particular, that was the kind of community that needed a lot of help, for the reasons that I have given. On the policy behind the Bill, I described the White Paper as visionary. The Bill is less so. I am for the Bill. I am just bringing into the calculus another element which has validity in particular circumstances and should be weighed.
I shall seek to justify Amendment No. 16 as well as Amendment No. 18. In fact, Amendment No. 16 was tabled before Amendment No. 18, and the Committee will see that my name and that of my noble friend Lady Walmsley were added to Amendment No. 18, in the name of the noble Lord, Lord Dearing, because we very much agreed with it. It is probably the better of the two amendments. Amendment No. 16 derives from the Select Committee on Education and Skills. One of its recommendations was:
“We propose that a new duty be placed on all schools to promote social inclusion and community cohesion through all of their institutional policies and procedures, including their admissions policies”.
Later, in Clause 32, there is a commitment for foundation schools to promote social cohesion, but not for local authorities to do so. The amendment concerns a duty placed on local authorities. When the provision in Amendment No. 16 was discussed in the Commons, the Minister, Jacqui Smith, responded:
“Moreover, local authorities will be required specifically to consider the impact of proposed new schools on community cohesion when carrying out their new commissioning role. Local authorities will also be under a duty to have regard to guidance from the Secretary of State when considering proposals. That will make it clear that they must consider the extent to which, and how satisfactorily in terms of the circumstances of the community, proposals for new schools promote community cohesion”.—[Official Report, Commons Standing Committee E; 30/03/06, col. 117.]
The idea of the amendment is to carry that forward. It is not sufficient that that is in guidance; we want it written in the Bill. Recently, we put through this House the Childcare Bill. There is a commitment at the beginning of that Bill to reduce inequalities. We all agree that that was a good commitment because those early years are so important, but the later years are also very important.
As we have described, in those later years the quality of education that children receive plays a vital part in their life chances. We know that, to date, for one reason or another, those who come from the most disadvantaged homes have generally experienced the least good education, not least because society has not sought to put effort and resources into that sector of education. If we want to improve the educational performance of this country, and do something about the shocking statistic of one in five leaving primary school unable to read and write properly, it is vital that those who come from those disadvantaged homes, many of whom have special educational needs of one sort or another, get a disproportionate share of the resources to counter the imbalance in educational provision.
I stand between your Lordships and dinner, which is a slightly perilous position to be in. I have to overcome my temptation to be very brief, because the noble Baroness, Lady Williams, raised some important philosophical issues that require me to reply to them. I cannot let them pass, not least because my noble friend Lord Judd also raised the same issues in some ways and asked whether we were sufficiently committed to the principles of inclusion and investment in our most challenging communities. We are, and I should say a few words about that at the outset.
My best way of replying to the noble Baroness is to say that I believe that she has two misconceptions about the Bill, which I shall describe, if I may. The first is understandable; it has been quite common in the debate, and was reflected in the comments of the noble Baroness, Lady Howarth. It confuses the legal category of core community school, which is simply a school with a certain set of governance arrangements about the precise composition of its governing body, about who does and does not own the assets, and about how admissions are and are not administered, with the concept of a school that plays a full part in its community and is absolutely inclusive and community-minded in its mission.
I entirely accept that when secondary moderns and grammar schools were a normal part of the system it was argued—indeed, the noble Baroness sought as Secretary of State to promote policies to change this as we moved towards comprehensive schools—that whole categories of schools were not community-minded because their whole philosophy in interacting with their community and admitting pupils did not seek to embrace the community which they served, although I accept that the community which schools serve is to some extent a fluid definition. As the noble Lord, Lord Skidelsky, says, we do not have narrowly defined communities. However, and I cannot make this point sufficiently strongly, all the categories of schools in the Bill are absolutely community-minded in their mission. All the incentives on them are to be so. There is no distinction in that respect between schools that are called community schools and those that are called foundation schools, academies or trust schools. They all have to operate within the same framework of admissions and local duties, which they may perform better or worse in each case. The noble Baroness said that, and I fully accept that, but there is no particular reason why a school called a community school will simply, by virtue of its governance, be more likely to be better or worse in those respects than another school.
All these schools have duties to promote community cohesion, and there is no inherent reason why one should perform better at that than another. All of them have a duty to do so. The question is: which form of governance in the particular context of the school that we are talking about is most likely to produce a good school and do more to promote cohesion and the engagement of its community than any other? I took my noble friend Lord Smith, who as leader of a local authority has more experience of this than any other noble Lord, to be saying that you sometimes have to be prepared to take really quite drastic action in the governance and leadership of a school. Such action might include a change in the school’s legal category if you want to relaunch it in a way that will bring a completely new infusion of governing energy. Indeed, my belief is often that changing the category to one that gives much more of a sense of ownership of objectives on the part of the governors, which you are more likely to get in categories other than community schools, may be worth while. But that does not mean that any of these categories of school are less community-minded than others, or that they have any fewer duties towards special educational needs and disadvantaged pupils, to whom the noble Earl, Lord Listowel, referred and who are so dear to the heart of the noble Lord, Lord Dearing. I hope that I can establish that as a first point and invite the noble Baroness to reflect on it.
The second point made by the noble Baroness, which I strongly refute, is the notion that the Bill somehow creates an unlevel playing field in the unfair distribution of resources between schools. I absolutely refute that notion. On revenue funding for schools, all schools, whether academies, voluntary-aided schools, community schools or trust schools, must be subject to the same fair funding arrangements that apply to other schools. Local authorities determine what their fair funding arrangements should be. They have to produce a formula that must respond to essential requirements that are laid down by central Government, but those requirements give a weighting to such things as deprivation factors and ethnicity. Beyond that, the local authorities determine the fair funding formula. That formula then applies equally to all categories of school.
In so far as central Government intervene over and above that on the revenue support side, they do so to help to tackle disadvantage through programmes such as Excellence in Cities and the London Challenge, which cross my desk every day—allocations that we make that go overwhelmingly to schools in deprived areas that face challenging circumstances, often to support the kind of turnaround strategies to which my noble friend Lord Smith referred. The overwhelming majority of those schools are community schools, because that is where the largest category of schools is.
On the capital side, however, the noble Baroness is right that certain priorities are set in the allocation of capital funding. Academies have been given priority in capital funding, not in revenue funding, because overwhelmingly they have been subject to failure, often acute failure, in the most deprived communities in the country. We think that it is right as a matter of policy for those schools to be able to get access at the front of the queue. They are almost overwhelmingly community schools—they become academies to give them a governance structure that is more likely to raise standards—and get that access to capital so that they can get the buildings that we want all schools to have in due course. Even in that respect, the overwhelming bulk of our capital programme in the next 10 years will go to a programme called “Building schools for the future”. Our commitment to the renovation of the school system, particularly in deprived areas—my noble friend Lord Judd can preach this to the students at the London School of Economics—is without precedent in the history of Labour Governments. We are now spending £5 billion a year on capital renewal in our schools, compared with the £700 million we were spending as a country in 1997, and that figure will rise significantly further in the next few years.
The criteria for allocation in the “Building schools for the future” programme, which is where the overwhelming bulk of the funding is going, are focused first on areas of greatest need, such as those in my noble friend’s authority. Large numbers of very deprived areas are getting the allocation. The programme is in those areas prioritising the more deprived schools, the majority of which are community schools by legal category. I therefore completely refute the notion that there is an unlevel playing field in the allocation of public resources either in revenue funding or in capital funding. In capital funding, discretionary decisions have been taken, but all those decisions have been taken in favour of schools in the most deprived areas that face the greatest challenge so that they can become better community schools in the true meaning of community schools, which are schools that serve their community well and provide a high standard of education. I hope I have given the noble Baroness some things to reflect on and which go to the heart of this debate in its widest sense.
We do not believe that the specific elements in the amendments are necessary, because we believe that they are embedded in the duties in Clause 1 and in the legislation in any event. The key aims underpinning the Bill are to increase equality of opportunity and access to high standards of education for all. Clause 1 accordingly places explicit new duties on local authorities to ensure fair access to educational opportunity and to promote the fulfilment of every child’s potential in addition to the existing duty to promote high standards. We want to ensure that every school provides an excellent education and that every child achieves their full potential, and nothing we can do will help schools better to promote social and community cohesion in their work than by succeeding in eliminating education inequalities based on class and background. We believe that we achieve that purpose in the Bill.
Elements of discrimination, such as disability, race relations and the treatment of different ethnic groups, which might threaten cohesion, have not come up in the debate, although I understand the argument that we need to go beyond them. Schools, like other public institutions, are covered by statutory duties in that respect. They are also covered by the new disability legislation, which includes a requirement on all schools, whatever their category, to produce disability equality plans—a new legal requirement that will bite from this December. They are of course also subject to the Race Relations Act 1976 to eliminateunlawful discrimination and to promote equality of opportunity and good relations between persons of different ethnic groups.
On the competition requirements in respect of completely new schools, we could not be more categoric. The regulations and statutory instruments that we have laid on the operation of school competitions to replace failing schools, which have closed in the sort of circumstances referred to by the noble Lord, Lord Dearing, state that those putting forward proposals for new schools, whatever the legal category of school, must provide:
“(a) a description of what the proposals are intended to deliver in terms of community cohesion;
(b) the objectives which the promoters intend to set to further the aims of inclusiveness and partnership working”.
In the draft statutory guidance for decision makers on competitions for new schools—also made available to Members of the Committee—Section 7 on community cohesion, inclusiveness and partnerships, sets out factors which should be taken into account, including, first,
“the extent to which, and how satisfactorily in the circumstances of the community, the proposals [for new schools] address the need to promote community cohesion”;
“the extent to which the proposals take account of the needs of families and the wider community”,
and, in particular, satisfy the need for extended services identified in the authority’s notice inviting proposals; and, thirdly,
“the extent to which the proposals contribute to delivery of the Every Child Matters agenda, including the health, safety, enjoyment and achievement of children”.
That is in the guidance that we have put out. I do not believe that it could be more explicit in meeting the particular concerns raised by the noble Baroness and the noble Lord, Lord Dearing.
On the basis that I may have helped to dispel some misapprehensions about the Bill and made clear that the commitments to community cohesion are there, I hope that it will not be necessary to pursue the amendments.
As it is late, I have not risen to the bait, but I would not have said what I said without having very carefully looked at the Bill. I do not want to detain the Committee now, but at a later stage I may go back to the reasons why I believe that there is not a level playing field. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Police and Criminal Evidence Act 1984 (Code of Practice C and Code ofPractice H) Order 2006
rose to move, That the draft order laid before the House on 14 June be approved [30th Report from the Joint Committee and 39th Report from the Merits Committee].
The noble Baroness said: My Lords, during debates on the Terrorism Act 2006, the Government agreed that a new code of practice should be issued to govern the detention of terrorist suspects before bringing into force the sections of the Act which will extend the maximum period of pre-charge detention of terrorist suspects from 14 to 28 days.
The order before your Lordships today therefore brings into force a new PACE code of practice on the detention, treatment and questioning of terrorist suspects arrested under Section 41 of the 2000 Act. This new PACE code is to be known as “Code H”. The order also issues a revised version of PACE Code C, which deals with the detention, treatment and questioning of both terrorist and non-terrorist suspects. This order will remove references to terrorist suspects from Code C.
Code H reflects the results of a consultation held between 2 and 23 May. We received a total of 26 responses to the consultation from a wide rangeof organisations and individuals, including the Association of Chief Police Officers, Liberty, the Law Society, the Criminal Bar Association and the noble Lord, Lord Carlile of Berriew, to name but a few. I hope that your Lordships will all agree that thecode we are planning to introduce represents an appropriate and effective tool for governing terrorist detention. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 14 June be approved [30th Report from the Joint Committee and 39th Report from the Merits Committee].—(Baroness Scotland of Asthal.)
My Lords, I thank the Minister for her explanation of the order. As my honourable friend Nick Herbert made clear in another place when this matter was debated last week, we do not wish to rehearse the debate about whether detaining terrorist suspects without charge for 90 days was justified. Parliament agreed on the28 days. It is very clear that the subject matter of this order is very narrowly confined to whether Code H is appropriate to be put into effect. We certainly support the making of the order on that basis.
In another place, my honourable friend Mr Herbert asked two questions, one of which was satisfactorily answered. He was assured by the Minister, Mr McNulty, that it was envisaged that if the police need to interview detainees after they have been transferred to prison, arrangements will be made for them to be moved back to the appropriate police station. That was a welcome assurance, since it is in keeping with the needs of an investigation.
However, my honourable friend also pointed out that the code provides that detainees may receive visits from friends, family or others at the custody officer’s discretion. He therefore asked to what extent that provision would be subject to supervision or review, whether such visits would be left to the discretion of a single custody officer and what appeal procedure would be available if the custody officer decided not to allow the visits. In glancing through the report of that debate on 28 June, I did not readily see that Mr McNulty had responded. I should be grateful if the Minister could take the opportunity to do so today.
My Lords, we understand that the revised codes of practice made under Section 66 of the Police and Criminal Evidence Act 1984 are necessary because of the extension of the maximum period of detention from 14 to 28 days, to which Parliament finally agreed with some reluctance after many contentious debates.
As the Minister said, Code H deals in particular with the treatment of suspects who are detained for the longer period under the Terrorism Act 2000. I understand that after consultation it was agreed that suspects would be transferred to prison if a warrant is issued taking detention beyond 14 days. My noble friend Lord Carlile of Berriew strongly endorsesthat proposal as ensuring that detainees are held in establishments which have the experience and facilities to deal with longer periods of detention.
When my honourable friends the Members for Hornsey and Wood Green, and for Somerton and Frome, asked whether someone held under the code would be transferred to a place where the officers had received appropriate training, the Minister who replied took the question to refer only to police stations. He said that the equivalent of Paddington Green would not be needed everywhere unless there was a large increase in suspects charged under the code. Does that mean that as long as the number of suspects is small enough to be accommodated in Paddington Green, every suspect will be held there initially, regardless of where they were detained in England and Wales? What is the situation in Scotland? If the number of suspects increased beyond the limit that Paddington Green can hold, has another police station been prepared to receive the extra suspects, with appropriately trained officers?
Similarly, are there designated prisons to receive the suspects who are detained for 28 days, with appropriate facilities and trained officers? If the first preference is to be Belmarsh, has another prison been designated as back-up in case the number exceeds the capacity of Belmarsh? I need hardly add that with the prison system as a whole crammed to bursting point, it would impose an intolerable strain on the service if it suddenly had to accept more than a few 28-day detainees. It would be useful to know how the Minister thinks that it would deal with such an emergency if it occurred.
Finally, I should like to ask a question, of which I am afraid I did not give the noble Baroness notice, on paragraph 5.7 of Code H. It provides that detainees will be,
“informed that what they say in any letter, call or message ... may be read or listened to and may be given in evidence”.
There is no reference to the recording of any telephone call that is made. Particularly as reference is made elsewhere in the code to the possibility that telephone calls may be conducted in a language which the officer does not understand, does the Minister not consider that there may be a requirement to record those conversations so that they can be translated and examined later?
My Lords, first I thank the noble Baroness and the noble Lord for giving their assent to the codes of practice, but I shall answer straightaway the questions that they have quite properly asked.
On the supervision of family visits and any appeal procedure, I can assure the noble Baroness that all visits will have to take account of the operational sensitivities of an investigation and will be arranged in liaison with the investigation team, while also taking into account the needs of the detainee. The balancing exercise will have to be gone through, and of course the noble Baroness will understand that each situation will be different. Any complaints, however, can be made to the Independent Police Complaints Commission or to the Prisons and Probation Ombudsman, depending on where the detainee is held.
I turn now to the questions raised by the noble Lord, Lord Avebury. All police stations are designated for the detention of terrorist suspects, but the Terrorism Act 2000 requires that a detainee is taken as soon as is reasonably practical to the police station which the constable considers the most appropriate. In the majority of cases this will mean Paddington Green, but other police stations are used and a secure detention facility exists in Scotland at Govan. The decision about which station is the most appropriate is an operational one to be taken by the police and will depend on the needs of the investigation and the circumstances of the detainee.
The noble Lord asked whether suspects would all be sent to Belmarsh and what the position there is. The police and the National Offender Management Service will maintain an agreement as to the most suitable places for detention, which will again depend on the individual detainee and take into account, for example, their age, whether they are male or female and the circumstances of the investigation. Belmarsh will be one of the institutions under consideration for appropriate cases but other institutions will be considered when all the relevant issues are taken into account. Those will form part of the plans we make.
On the question of telephone calls, I shall write to the noble Lord. However, the ordinary principleof “he who asserts must prove” will prevail. If information is to be relied on, it makes prudent good sense to try to get the best quality evidence. That is my response generally but I shall write to him in relation to that specific issue because I do not have clear instructions to hand. With that, I commend the order to the House.
On Question, Motion agreed to.
Private Security Industry Act 2001 (Amendments to Schedule 2) Order 2006
rose to move, That the draft order laid before the House on 14 June be approved[30th Report from the Joint Committee].
The noble Baroness said: My Lords, since 2004 we have been rolling out the licensing of the private security industry under the Private Security Industry Act 2001. Crown employees who hold office, such as police officers and prison officers, are not within the scope of the Act so are not subject to licensing. The legislation had the unforeseen effect of including in its scope several groups of people who work for the police, including certain police community support officers, those in the Prison Service, the Immigration Service, the British Transport Police and others, in certain limited circumstances such as where they are supplied by their employer under contract to undertake a specific role.
It was never the intention that any of these people should be covered by the 2001 Act and it is the result of an unforeseen legislative anomaly that we are now seeking to correct. The order also addresses a number of other issues of scope. When the order was laid, it was to impact only on England and Wales since the 2001 Act had that limited territorial extent. However, before the laying and making of this instrument the 2001 Act will be commenced in Scotland, so this order will now impact on Scotland. I beg to move.
Moved, That the draft order laid before the House on 14 June be approved [30th Report from the Joint Committee].—(Baroness Scotland of Asthal.)
My Lords, again I thank the Minister and of course I shall support the order. However, she knows that I cannot resist teasing her a little on this matter because it has a chequered history. The Minister has explained clearly that it was not intended that the Private Security Industry Act 2001 should cover Crown employees who hold office, but the legislation has had these unforeseen consequences and has dragged in others within its remit who simply should not be there.
I have to make the comment that this Bill has an unhappy history of unintended consequences and is dropping stitches all over the place. I noticed that when the Government introduced this matter in another place, they explained the background. The Government had first hoped to introduce an affirmative order, but they had run out of time. To try to make sure that they could stitch things together quickly they put through an order by negative resolution to ensure that everyone was covered, but to do the right thing they then decided to carry out the consultation you need for an affirmative order and go for that as well. They sought to cover all the options, and how admirable is that? The consultation required by the affirmative procedure has borne the fruit that we see today. I have to say, as members of the Opposition always do, that it is a good idea to deal with matters by the affirmative procedure, and let us see more of it.
I see that the noble Lord, Lord Bassam, is in his place beside the noble Baroness. I have to say to him that other stitches have been dropped in this piece of legislation. When the Violent Crime Reduction Bill was in Committee in this House recently, it was made clear to the Government that there was another anomaly in the Bill that must be resolved. One of the Government’s own colleagues, the noble Lord, Lord Pendry, put it clearly: one of the unintended consequences of the Act is that it has inadvertently been applied to stewards at football grounds and sports events. The noble Lord, Lord Bassam, made it clear that the Government would look favourably at going out to consultation with a view to bringing forward an order to remedy that matter as well, thus stitching up another little hole in this Act.
I would be grateful if the noble Baroness could indicate whether we shall see yet another order in relation to this Act soon—I hope with regard to protecting stewards at football grounds.
My Lords, since the Private Security Industry Act came into force it has spawned 11 commencement orders, four sets of regulations, three other statutory instruments, two repeals and revocations, one exception order and one direction under Section 2(1), so it is not surprising that at that level of complexity both the Home Office and the Security Industry Authority have got themselves into a muddle—like most things that come out of the department. The Security Industry Authority is on permanent answerphone with a very irritating message that refers you to several options on its website, but does not allow you to talk to a human operator; it then cuts you off so that you have to start again from scratch.
Five years after the Bill went through Parliament, the Home Office discovered that private security guards and others working under contract for the prisons, the police, the transport police, the civil nuclear constabulary and harbour and immigration authorities, including those carrying out escort duties, had been inadvertently covered by Schedule 2 and were therefore compulsorily licensable under the Act. Licensing became compulsory on 20 March, so the Government had to rush through a negative resolution which came into force on the same day pending the drafting of this order. After the consultation the order now before noble Lords covers a much wider range of guards and other civilians employed under contract for the police and so forth. No doubt the Minister will tell us whether those who were not covered by the 20 March order and whose position is now to be regularised have meanwhile been technically employed illegally.
The Government say that the inclusion of all these groups in Schedule 2 is unforeseen, but I invite the Minister to agree that the error was an inherent consequence of the wording of Schedule 2 which came to light when it was properly construed. If that is correct, then it could have been foreseen at any time in the past five years and could have been dealt with accordingly in a single order instead of the two orders that we have now had to deal with.
In Grand Committee in March on the then Immigration, Asylum and Nationality Bill, there was some discussion about the delegation to private contractors of functions previously carried out by trained immigration officers, particularly as regards the detention of children outside our jurisdiction at the juxtaposed ports of entry. The Bill, which has now come into force, conferred new powers of arrest, search and detention on detainee custody officers who were originally authorised under Section 154 of the Immigration and Asylum Act 1999 only to hold persons who had been detained by immigration officers. Article 2 refers to the export or custodial functions covered by the 1999 Act but not to those that were added, for example, by Section 40 of the 2006 Act. I am advised that the reason for that may be that the commencement order bringing into force the relevant sections of the 2006 Act have not yet been laid. I would be grateful for the Minister’s confirmation that that is the case. Does this mean that when the commencement order is made, it will have to amend this order which we are now considering to ensure that the added functions conferred on these entrance custody officers are also exempt?
In another place, the Minister, Mr Vernon Coaker, said that the activities of those who tow away vehicles on behalf of the police or local authorities were being removed from the scope of the Act. As the noble Baroness will be aware, there has been great concern in London about irregularities committed by parking attendants, which are being covered in some detail by the Evening Standard. The victims cannot raise these matters on appeal because the adjudicators are not obliged to summon witnesses from the contractors or from the employing borough, as I found myself—and I declare an interest—when I appeared before an adjudicator recently. One can win an appeal very easily on the facts but one cannot expose the extent of the practices, which anecdotal evidence indicates are widespread. Are ordinary parking meter attendants to be subject to regulation under the 2001 Act, and does the Minister agree that there is a need for much better supervision of their conduct than we have now?
My Lords, I absolutely understand why the noble Baroness and the noble Lord take this opportunity to tease about the chequered passage. However, I think it demonstrates how flexible, emollient and reasonable the Government are to respond so swiftly and effectively to issues arising. Opportunities to demonstrate that flexibility seem to come our way on a number of occasions.
Perhaps I may start with the noble Baroness's questions, as the issue concerning the Bill is coming up. We will return to the issue on Report. The SIA and football stewards’ consultation was finalised in the middle of this month. The issue will be addressed on Report, which I think will now take place in spillover in the autumn. I hope that we will have a favourable and consensual resolution of the issue.
On PCSOs, the noble Lord, Lord Avebury, asks whether anyone is working illegally at the moment. It is impossible to give a precise answer, but it is possible that some PCSOs are inadvertently caught by the Act if they undertake licensable activities in certain circumstances. Broadly speaking, those circumstances are where they are providing a service for a third party and where they supervise contractors. Therefore, PCSOs who are only partly funded by the police authority may be caught by the Act. It is a very technical catching. The noble Lord will remember that PCSOs were not conceived of when the Act was passed and came into being subsequently. The flexibility with which they have been used has changed over time, and it probably was not contemplated that they would undertake contractual work that would be outside of the straight contractual work undertaken by local authorities. I cannot say no outright as there is a possibility that some may have been doing that. However, I should hope in these circumstances, where it was never intended that they should be caught, that this will not cause any significant difficulty.
The 2006 Act does not extend to the powers of detainee custody officers. It creates a new contracted-out role of authorised search officer to undertake the searching of freight vehicles. These ASOs are referred to in the order and are thus removed from the remit of the 2001 Act.
My Lords, I am thinking of Section 40 of the 2006 Act, which allows these officers not only to detain an individual for a period which is as short as reasonably necessary but does not exceed three hours; to take the person to a place for the purpose of delivering him to an immigration officer; to use reasonable force for the purpose of doing anything under previous paragraphs; and to conduct searches of a person so detained. All that is in Section 40 of the 2006 Act. We had quite a lot of discussion of that when the then Bill was in Grand Committee and we expressed grave concern about the extension of those powers, especially, as I said, as they relate to the juxtaposed controls at the French ports and the possibility they will be used on children. We had assurances about the Children's Commissioner overseeing how the powers were being used. I must therefore insist that there were considerable extensions of these officers’ powers. I would like very much to know whether they are covered by this order.