House of Lords
Tuesday, 25 July 2006.
The House met at eleven of the clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Sheffield.
The Right Honourable Dame Ann Elizabeth Oldfield Butler-Sloss, GBE, having been created Baroness Butler-Sloss, of Marsh Green in the County of Devon, for life—Was, in her robes, introduced between the Lord Woolf and the Lord Carswell.
Lord Harries of Pentregarth
The Right Reverend Richard Douglas Harries, lately Bishop of Oxford, having been created Baron Harries of Pentregarth, of Ceinewydd in the County of Dyfed, for life—Was, in his robes, introduced between the Lord Wilson of Tillyorn and the Baroness Neuberger.
My Lords, the department does not collect waiting times for hearing aid fittings. However, since January 2006, waiting time data have been collected for pure tone audiometry diagnostic tests. Those were published for the first time on 12 July. We aim to delivery audiology diagnostic tests within 13 weeks by March 2007 and within six weeks by December 2008.
My Lords, nevertheless, will my noble friend confirm that some 30,000 deaf people have had to wait for over a year to get their first hearing test? Would he not agree that the present position of deaf people waiting is very sad? Would he also not agree that services for deaf people have been very slow in coming forth and that they have been excluded from the 18-week waiting-time target for other people? Why should deaf people be discriminated against like this?
My Lords, as my noble friend knows, we have made a huge investment in these services and are, to some extent, the victims of our success. I acknowledge that there are long waits for audiology services and for assessment for hearing aid fittings. To tackle them, I am pleased to announce today that as part of the second phase of the procurement of diagnostics from the independent sector, I have decided that an additional 300,000 patient pathways will be procured. That will start to produce services from the early part of 2007 in the form of assessments, fitting and follow-up for people with hearing difficulties.
My Lords, does the Minister agree that this issue is not about hearing aids in particular, but goes across the entire National Health Service? To my knowledge, large numbers of people in their 60s are being told that they cannot get a hip replacement because they are too young.
My Lords, my noble friend knows of my interest as the Minister who took and implemented the decision to phase out the old body-worn Medresco hearing aid while he also was at the former DHSS. Is he, however, aware how deeply anxious hearing-impaired people are to hear today the date of publication of the action plan, heralded as the answer to present discontents? Would it not be deeply unfortunate if Parliament went into Recess without knowing the publication date, or at least a date by which his department expects to be able to publish the plan?
My Lords, we will publish the national action plan very shortly. In answering the Question, I announced that an additional 300,000 patient pathways a year are being procured from the independent sector, with services starting to come on stream early in 2007. That will be part of the national action plan.
My Lords, does the Minister believe that, because lack of hearing is not an apparent disability, it tends to be treated as a Cinderella service? I am pleased to hear him announce this extra money. Does that mean that there will be clinics as well as hospitals—the Question referred just to hospitals? If all the extra resources are to be made available, I presume they will be more widespread than that. Can he confirm that?
My Lords, we will ensure that, as part of the procurement of diagnostic services from the independent sector, 300,000 new service areas for assessment, fittings and follow-ups will be provided through the independent sector. It will be for discussion with the strategic health authorities and those independent sector providers precisely where and how those services are provided. That will be part of the procurement process.
My Lords, I was diagnosed by the Royal National Institute for the Deaf when I paid it a pastoral visit as Secretary of State for Health. I was told, “You really are very deaf”. I now depend entirely on the hearing aids with which I was able to supply myself—it was before the NHS did digital. I am really impressed by the case made by the Royal National Institute for the Deaf, and I hope that I can get an undertaking from the noble Lord that his department will now discuss fully with that admirable organisation how it intends to implement the announcement he has made today.
My Lords, we are always in close contact with the RNID, which is an important player in the national action plan. I am very pleased that the noble Lord has received such an excellent service. I am sure that he was always a listening Secretary of State for Health when he was in office.
NHS: Treatment of Patients with FGM
asked Her Majesty’s Government:
What is their assessment of the impact ofthe reduction in staff at the African clinic at the Central Middlesex Hospital, responsible for gynaecological and antenatal treatment of patients with female genital mutilation.
My Lords, NHS London has informed the department that there will be no reduction of staff at the African Well Women’s Clinic at Central Middlesex Hospital. The clinic will continue to run weekly for the same length of time. I am informed that the consultant at the clinic retired on 3 July and has been replaced by another consultant from North West London Hospitals NHS Trust. I am assured that there will be no impact on patients.
My Lords, I thank my noble friend for that very reassuring reply. Mr Harry Gordon, the retiring surgeon, performed more than 4,000 repair operations on patients in the nine years during which he was there. Can my noble friend say whether the incoming surgeon will be competent to perform reversals, which are so essential for women who have been mutilated? Can he confirm that there are only seven clinics specialising in FGM in the NHS? Are there plans to open any more such clinics in the United Kingdom?
My Lords, I am happy to join my noble friend in paying tribute to the work done byMr Harry Gordon before his retirement. I understand from the trust that his replacement will be able to perform all the necessary duties in the light of the assessment of the women who come forward through the clinic. I cannot answer off the top of my head her question about the number of FGM clinics and services across England, but I will certainly make inquiries and write to her.
My Lords, is the Minister aware that people take their young children and young adults back to their country of origin to have this fiendish and horrible female circumcision undertaken? When they come back, they have all sorts of infection problems. Also, when they have babies, they have to be unstitched. It is therefore essential that there are specialised people to perform that procedure.
My Lords, we have been working with FORWARD, the Foundation for Women's Health, Research and Development, in this area. We have provided it with funding to make a DVD to educate health professionals and we are working with it on a prevalence study of this condition across the NHS. We will continue to work with it to ensure that health professionals are well informed in this area.
My Lords, we continue to do that work through FORWARD and PCTs. It is down to the local NHS, which may have populations in its area that are vulnerable to the practice, to ensure thatthere is knowledge and that action can be taken. I understand that the Metropolitan Police are discussing some of these issues and the possible movement of young people overseas who are at risk of having this operation conducted on them.
My Lords, the Minister mentioned the very important Act of 2003, which made it a crime punishable by imprisonment of up to 14 years to take, or to aid and abet the taking of, girls or women abroad. The problem is very serious, as has been said in the Chamber. What is his department doing to investigate the number of women being taken abroad for this mutilation and to prevent it happening?
My Lords, it is for the police in these circumstances to conduct any necessary inquiries. That is why I mentioned, in response to an earlier question, that there has been contact between the department and the Metropolitan Police, who wish to make links with other agencies undertaking activity on FGM because they are aware that in the summer young girls are vulnerable to becoming victims in this respect by being flown to countries that practise FGM. We need to work closely with the police and will continue to do so.
Railways: Cross-country Franchise
My Lords, in the first month of the consultation, the Department for Transport received 26 responses by e-mail and 11 written responses. A variety of themes are emerging, including the use of rolling stock, the extent of through trains and service levels.
My Lords, I thank my noble friend for that Answer. Is he aware that between six and eight through trains a day service the stations from Scotland through Cumbria and Lancashire down to Penzance, Plymouth and Bournemouth, and that his department proposes to axe those trains, terminating all services at Birmingham? How can this possibly be of benefit to the consumer and to passengers who enjoy the privilege of travelling on those through-trains to the south coast?
My Lords, I am aware of my noble friend’s keen interest in the service in the north-west. Let me emphasise that the intention is to improve the service. We have a very acute bottleneck, which results in poor time-keeping at Birmingham New Street station. The intention is to guarantee an hourly train service and that the timetable will be adhered to rigidly, although I recognise that there is a cost involved in the seven trains to which my noble friend referred. Passengers will change at New Street, but the punctuality of their trains, and therefore an improved service, will be guaranteed.
My Lords, do the franchise conditions protect passengers wishing to travel from smaller country stations, or are the rail companies free to divert services to larger urban stations without restriction?
My Lords, consultation is taking place on this franchise. Therefore, final terms will not be prepared for bidders until later this year when the consultation is complete. However, with regard to franchises, rail companies undertake certain levels of service. Any significant departure from the service contained directly in the franchise would be subject to consideration by the Office of Rail Regulation and the department.
My Lords, in the Minister’s Answer, he said that people would have to change at Birmingham New Street, which is an enormous imposition on passengers. The trains into which they will have to change will be full and they will not get seats. Will the Minister please impress on those drawing up this franchise the need to provide adequate rolling stock and infrastructure on this route? He referred to punctuality, which is improving, but the capacity of the route will not meet the demands envisaged in the next seven years.
My Lords, I am grateful to the noble Lord because he has highlighted a further point which I refrained from making due to the already great length of my Answer. Improvement to the service certainly entails within this franchise longer trains, including doubling the length of some trains, to increase capacity. We are aware of the noble Lord’s point that extra demand on the rail means that trains are crowded. Our intention is to provide regular, punctual services at hourly intervals on a range of routes that go through Birmingham. But the cost involved is the seven through trains, to which my noble friend referred in his Question.
My Lords, would this change only serve to accentuate the current shift of passengers from the west coast main line to the east coast main line, as proven by the fact that tens of thousands of passengers from all over Cumbria every year now drive to Darlington to catch a fast train to London?
My Lords, my noble friend will recognise the significant investment in the west coast main line. That investment—it has taken many years to complete the work—presumes that train services will run at full capacity on the west coast main line. It is for train operating companies to provide the service. There will be enhanced reliability and capacity for one set of trains operating under the new franchise.
My Lords, would my noble friend look at the demand and capacity on the west coast main line north of Preston? Given his comments about the shortage of rolling stock around the Birmingham area, will he look at the many hours in the day when trains are going north, and probably south, from Preston to Edinburgh and Glasgow and at the number of passengers on them? Perhaps he will consider reducing that number and allocating the trains to where there is a big demand.
My Lords, my noble friend will understand that this franchise deals only with trains operated by Virgin on its cross-country franchise and by Central trains. I hear what he says about over-capacity in certain parts of the railway system. Let me make the obvious point: it is not in the interests of train operating companies, which have invested so much in recent years in new rolling stock, to have that rolling stock underused. Although I accept what my noble friend says, because he is very knowledgeable about the railways, the general perspective is that the demand for passenger space, seating and adequate trains is increasing, and we need to invest more.
My Lords, the proposal is to remove Glasgow and west central Scotland from the cross-country franchise. At a time when we are trying to reduce domestic air travel,how sensible is it to disconnect half the Scottish population from the rail network to the south-west of England? Does not holiday rail travel in particular thrive because people with baggage can travel without having to change trains?
My Lords, I understand the point made by the noble Earl, but he will have heard what my noble friend said about the actual usage of some of these cross-country services. It is intended under this franchise to ensure that the successful bidder provides a regular, hourly service over a series of routes through one of the great bottlenecks on the railway system, Birmingham New Street station. That is why we are prepared to countenance some breaks and changes in train services. Passengers would prefer a train that picks them up at the right time and arrives at their destination on time. While I recognise the point about changing trains, it is preferable for passengers to know that their trains are punctual even if that necessitates a change of trains.
Housing: Home Information Packs
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a small interest in that a member of my family has just completed this training.
The Question was as follows:
To ask Her Majesty’s Government whether they will consider providing reimbursement for those who have undertaken training for the compilation of home information packs.
My Lords, the home condition report will remain part of the home information pack, but as an authorised document rather than a mandatory item. There are significant employment opportunities for those in training as home inspectors, and properly trained inspectors will be needed to produce energy performance certificates required for packs. This is in addition to the number of inspectors needed to meet the demand for voluntary full home condition reports.
My Lords, while thanking the Minister for that reply, does she not accept that most people undertook this training on a gilt-edged assurance from the Government that there would be a mandatory demand for their services? They have undertaken long, extensive and expensive courses. Do not the Government have at least some duty of care to make sure that they get either some reimbursement or that the scheme is brought back in—if that is a wise idea?
My Lords, let me start by saying that we are aware of the difficulty caused by the announcement of a change in the implementation policy. My honourable friend the Minister of State is writing to express her regrets and apologies to the people who embarked on the course. However, we want to make it absolutely clear that we believe that there are major employment opportunities in this area. We are committed to making a success of the voluntary rollout of this programme and we are working very closely with the industry to ensure that we do so. We have an obligation to home inspectors to ensure that the rollout of this programme is a success. We believe that we can do that.
However, we also have an obligation to the consumer. When we went into the detail of the process of implementation, it became clear that there were disadvantages, partly because the industry was not ready and partly because we were not sure about the numbers coming forward for training and completing their training on time in the right parts of the country. Various factors had to be taken into account and we have done so.
My Lords, when I asked the noble Baroness a few weeks ago about the point of having home information packs when it was clear that the building societies were not going to accept the surveys for mortgage valuation purposes, she assured the House that talks were taking place, the deadline would be met and there would not be a problem. What on earth is the point, other than saving the Government’s face, of imposing this bureaucratic system on the public and on those selling their houses with all the costs associated with that when it clearly has no value whatever? When will the Government learn to take note of the warnings they had from the industry and from this House instead of proceeding in this arrogant manner, which has cost many people hundreds of thousands of pounds?
My Lords, I do not think it is a weakness for the Government to have listened to voices telling us that we should consider the effects on an industry which considered itself not to be ready. We have listened to that. Perhaps if the previous Government had done a little more listening they would have been a little more successful; for example, in the rollout of the railways. There is, indeed, a very good case for the home information pack. If the noble Lord reads the debate he will see that both the Conservative and the Liberal Democrat Opposition in the House of Commons have congratulated us on the decision we have taken. The Liberal Democrats said that they were very grateful. The home information pack includes everything, except the HCR, which people will need for more security and transparency in transactions which, under the present system, cause wastefulness and distress. It remains a valuable product and we support it equally. When the home condition report is tested with consumers it is extremely popular. We have made a commitment to ensure that the voluntary rollout is successful.
My Lords, does my noble friend agree that it is better for the Government to have thought before implementing something like this and withdrawn it, rather than—as the party opposite did with the community charge—insist on it and ruin themselves and the country?
My Lords, I completely agree. When, under our system of conveyancing, one in three sales collapses because of inadequate information and the like, we are right to try to find a system which will improve on it. This will provide information up front and make the whole process more certain and less stressful.
My Lords, I am sure the House will be grateful to the noble Baroness for being frank and forthright in what she has said. None the less, one needs to dwell on the fact that when the Bill was first introduced into the House the noble Lord, Lord Whitty, was kind enough to accept that the research as to the practical effects of the pack was simply not adequate. Is there not a lesson here for legislation as a whole that it is far better not to have to withdraw a Bill on the point of implementation but better not to bring it forward unless it has been thoroughly researched?
My Lords, I am very pleased that the noble Lord is in his place today to ask this question. I regret that he will not be in his place as we complete the successful voluntary rollout as his contribution to this House is formidable. He is absolutely right: we need evidence-based policies for all we do. He was one of the people who called upon us to carry out area-based trials, which is very difficult to do for all the reasons that we have exchanged over the Dispatch Box. However, we will now carry out area-based trials, with the support of the industry, as best we can. We have to test out the home condition report in place and its impact on consumers. It was difficult to do that in the dry run because of the volume of packs on which we have had to base our evidence, but we shall certainly do it.
My Lords, I, too, declare an interest as one who fought against this measure but undertook the training. I can assure the noble Baroness that there is not a surveyor I know who will undergo further training on this scheme because they cannot trust the Government after they have reneged on it and cost us thousands of pounds. Under the new circumstances, can we continue to sell houses as soon as we are instructed and not have to wait for the remainder of the home information pack to be produced?
My Lords, I am sure that when the noble Earl receives the letter from the Minister of State expressing her regrets, he will understand more about why we have taken the decision. We have not reneged on the policy. As I have said, we are completely committed to both the home information packs and to the value of HCRs. As to the question he asks, in a Written Statement the Minister of State in the other place said:
“Working with the industry and with consumers, we are proposing to support a series of area-based trials and we will test proposals such as allowing sellers to start marketing their homes if they have already commissioned their HIP rather than having to wait up to 14 days”.—[Official Report, 18/7/06; col. WS 80-1.]
Life Peerages (Disclaimer) Bill [HL]
My Lords, I beg to introduce a Bill to authorise the disclaimer of a life peerage; and to provide for the establishment of a mechanism to replace a disclaimed life peerage. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Phillips of Sudbury.)
On Question, Bill read a first time, and ordered to be printed.
Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006
Criminal Defence Service (Financial Eligibility) Regulations 2006
Criminal Defence Service (Representation Orders: Appeals etc.) Regulations 2006
Data Protection (Processing of Sensitive Personal Data) Order 2006
My Lords, I beg to move the four Motions standing in my name on the Order Paper.
Moved, That the draft regulations and order laid before the House on 13 and 22 June be approved [30th and 31st Reports from the Joint Committee and 39th Report from the Merits Committee] [Considered in Grand Committee on 18 July].—(Baroness Ashton of Upholland.)
On Question, Motions agreed to.
Education and Inspections Bill
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Adonis.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 79 [Provision of food and drink on school premises etc]:
moved Amendment No. 214A:
Page 62, line 40, after “authority,” insert “or academy, city technology college or city college for the technology of the arts,”
The noble Baroness said: We have tabled a series of amendments relating to school food because we felt that Clause 79 needed some debate. AmendmentNo. 214A is a minor amendment and carries forward our wish to see academies, city technology colleges and city colleges of arts and technology included within the general provisions that relate to other maintained schools. We have spoken at length to such amendments, and I do not wish to speak to them again at any length.
Amendment No. 214B is the substantive amendment in this group. It would reinstate school milk for all primary schools and ensure that schools provide sufficient refrigerated storage capacity to keep it fresh for the period required. That is because last time this was tried, the objection was that these schools no longer had refrigeration facilities to keep the milk, although many of us who had school milk in the 1950s and 1960s will remember that there seemed to be fewer refrigeration facilities in those days.
Back in the 1970s, the right to school milk was withdrawn. I cut my political teeth marching down Whitehall with a pushchair that had two little girls in it and carrying a placard that said, “Maggie Thatcher, milk snatcher”. We have come a long way since then. There is a scheme which subsidises milk for young children in schools, but it can be taken up only by those under five, at nursery school. It is not generally taken up by primary schools. The scheme is funded through the European Union; it provides a fairly substantial subsidy for providing roughly half a pint of milk for each child every day. It aims to provide either free or highly subsidised milk for all primary school children.
Section 512ZB of the Education Act 2002 contains a provision whereby children eligible for free school meals are also eligible for daily free milk. But it is not mandatory—indeed, the wording is fairly loose, stating:
“Where a local education authority exercise their power under subsection (1) of section 512 to provide a person within paragraph (a) or (c) of that subsection with milk, the authority shall provide the milk free of charge if…the person is within subsection (4), and…a request that the milk be provided free of charge has been made by him or on his behalf to the authority”.
The problem is that the LEA does not have to provide free milk; it has to be requested, and many parents do not know that they have the right to request it. If the school does not provide milk to any of the children, it does not have to provide it to any of those eligible for free school meals. So there is a many a slip ’twixt cup and lip, one might say, on this issue.
Those schools that provide milk often do so only as an option at lunchtime and do not provide enough milk for all children to benefit from it. On those occasions, they often provide only to those eligible for free school meals, and many of those do not take up the option. If children are not urged to drink it, they often do not drink it.
We are not arguing for full cream milk to be provided. Indeed, the guidelines that have now been issued about school food lay down that it should be either semi-skimmed or skimmed milk. If it is to be drunk as milk alone, semi-skimmed is probably more acceptable for children to drink.
The European Union scheme also provides a subsidy for cheese to be provided in schools, but Britain has never made use of that, although in 1997 the Labour manifesto made promises to bring back both the free school milk and the cheese. French children benefit from the cheese subsidy and eat a great deal of cheese that is provided and subsidised very extensively by the European Union.
There is a strong case for the school milk provision to be applicable also to secondary school children. Some 25 per cent of teenage girls have such a calcium deficiency already that they will not achieve peak bone mass without some sort of intervention. This increases the risk of bone deterioration in old age.
We should be aware, too, that it is estimated that some 50 children in every secondary school, which equates to 5 per cent of the secondary school population, have nothing to eat all day. They arrive at school, having had no breakfast at home, with no money and no free school meal entitlement. Save the Children did a report a couple of years back called Bread is Free, and many years ago the British Nutrition Foundation researched the issue. Some schools make free bread available for hungry children, and some make loans available to children so that they can buy school meals. But that does not help very much, in fact, because those children often come from homes where they are worried about telling their parents that they have taken the loan, because they feel that their parents simply cannot repay it, which really just makes things worse at home. Most schools simply turn a blind eye to the fact that children come to school without breakfast and go without any food all day long. They ignore the plight of these children—and then they wonder why the children behave badly.
The issue of children turning up at school without any sort of breakfast is a very big one. I know that the Government, in the extended schools programme that they are introducing, have extended the number of schools where breakfast is provided—particularly to children without free school meals. This is a big issue. Using the subsidy that we can get from the European Union to provide them with free school milk is something that it seems madness not to take up and use, yet we make it as difficult as we can for schools to do so. I urge the Government to make it much easier for schools. We would like to see the right for all primary school children to have school milk again.
Amendments Nos. 214C and 214D raise a different issue. Amendment No. 214C is purely probing. We suggested leaving out these lines because we were uncertain as to precisely what sorts of foods were being prohibited. I have to say that since beginning work on this amendment, I have been inundatedwith vast amounts of material about all kinds of regulations on school foods. What sorts of foods are to be banned from school is more explicit. Generally the regulations seem quite sensible, but a number of nutritionists have expressed doubts about the Food Standards Agency’s traffic light system. They have criticised it for sometimes being too hard on thesugar and neglecting the salt, or vice versa. Tosome extent we are anxious to raise this issue and probe the Government a little about how they have derived these standards and what the thinking is behind them.
The final issue is the sort of food that can be brought on to school premises. Discussion in the Commons on the issue of school food raised the bogeyman of schools being unable to hold cake stalls or tombolas at school fairs because that would mean bringing forbidden foods on to school premises. Again, in the draft regulations that have been issued there is a generous list of exceptions, which excludes celebrations, fundraising fairs and a number of other such occasions—staff parties, for example—but we received a letter from a school governor who was clearly worried by the sorts of regulations being introduced. I shall read from it, because it illustrates the concerns about having to implement these regulations:
“Some of the supporting material gives the impression of having been put together without anyone having read through the final documents for consistency—thus baked potatoes with various fillings are cited as an example of an acceptable lunch main course for secondary schools, but not primary schools. As the main regulations will be entirely incomprehensible to governing bodies and parents without guidance, this sort of discrepancy is somewhat worrying…These regulations are going to take up a lot of time”,
as school meals are a regular issue for governing bodies. It continues:
“Making the regulations subject to parliamentary scrutiny would undoubtedly reduce the chance of mistakes, and would encourage careful thought about how regulations would be explained before they were made”.
I shall not suggest that we have detailed parliamentary scrutiny of school meal regulations—that would not be a good use of parliamentary time—but this suggests that the regulations that are being issued are something of a worry to governing bodies, and create some problems out there. I beg to move.
I think we are being a little old-fashioned in harping on about milk. Why should we spend our money on a substance that is composed largely of saturated fats and sugar, which many people find difficult to digest? The noble Baroness, Lady Sharp, was much more on track when she was talking about breakfast. It is terribly important that kids come to school with something in their stomachs and that they are reasonably fed throughout the day. If we are going to spend money, let us spend it on making sure that there is bread around at breakfast time and something to enable these children to have enough energy and attention, rather than going back to what she and I both remember as the intolerable business of being forced to swallow half a pint of extremely sour milk in the mid-morning break.
The crucial question when it comes to fluids is surely making sure that all schools provide water and allow it in the classroom. I do not know where we are on that yet, and I would be grateful if the Minister could update me.
I support what the noble Lord, Lord Lucas, said. I am somewhat surprised that the noble Baroness did not talk about a balanced diet. I commend the work of the School Meals Trust, which is working hard to make sure that children in our schools have a balanced diet, and of all those schools that are introducing breakfast clubs. I hope that through these regulations the Government can ensure that that happens right across the board. Although my noble friend the Countess of Mar is not in her seat, I also point out that cheese is pure fat, and one should eat it in moderation. To talk about subsidising cheese for children is difficult.
I suppose that I should declare an interest as a board member of the Food Standards Agency, and say that I am sorry that the noble Baroness has not looked in detail at the traffic light system and availed herself of the information. Quite complex discussions are going on between those who want GDAs and those who want simplified traffic lights to find away through the whole debate. All the consumer organisations are clear that mothers who find it difficult to work out percentages—and I could join them, with some of the difficulties I have in reading some labels—have found it much easier to use the traffic light system.
I hope that the Minister will talk in his reply about balanced diet, about continuing the work that the School Meals Trust is doing to reach that balanced diet, and certainly about continuing the “five a day”—encouraging children to eat more fruit in schools. And I am not very keen on too much milk.
I shall speak very briefly to a point that I feel relates directly to the amendment on nutrition. Following the noble Baroness, Lady Howarth, I agree that milk and cheese may not be the right direction—although I loved school milk and ended up drinking most of everyone else’s; but I think that I was in the minority. My concern is about the Government’s programme Building Schools for the Future. I understand, with some regret, that not all these schools have been built with dining rooms. It is quite difficult to have a balanced diet if the provision is not there. Perhaps the Minister can comment on that and reassure the Committee that I am incorrect in what I have been told.
Moreover, I have also been informed that some who wish to build academies have been told that the Government have changed the rules and that those people cannot now have a say or be in charge of the design and development of those schools, but that that is for the local authority. Some feel that design and their wish to ensure that, for example, dining facilities are available for all schoolchildren are being ignored by local authorities. Perhaps the Minister can also reply on that.
The noble Baroness, Lady Howarth, is a member of the Food Standards Agency, and I am sorely tempted to leave her to reply to the debate; she has given a partial reply already. We have of course consulted the Food Standards Agency as we have developed the work that we have taken forward with the School Meals Trust—on which we are spending a very large sum to ensure that schools have much better information on best nutritional standards, how they go about improving the quality of school meals, and how the resources available to them have been increased to provide precisely the balanced diet that she recommended. We are spending £220 million over three years on the School Meals Trust. As Members of the Committee will have realised, we are engaged in a programme of work that has had the close co-operation of Jamie Oliver, who has closely at heart all the interests that were set out.
Perhaps I can take the amendments one by one. On Amendment No. 214A, we entirely agree that food standards should apply to academies, and the requirement for academies to meet nutritional standards will be made through amending the funding agreements.
The noble Baroness, Lady Buscombe, mentioned academy design. We are not removing the scope for sponsors of academies to play a substantial part in the design. However, we are making it possible for academies to be built and delivered through the Building Schools for the Future programme, which we believe will promote cost-effectiveness and best practice in the delivery of academies. However, that will be in the context of sponsors still playing a role in the design—as indeed do schools within the Building Schools for the Future programme at large. There is not a single template that they have to observe.
Amendment No. 214B deals with the provision of school milk. The decision on whether to provide school milk rests with local authorities and schools. Where milk is provided, schools and local authorities can, if they choose, reclaim part of the cost of that milk from the EU school milk subsidy scheme.
The noble Baroness mentioned the reduced subsidy levels available under the scheme after January 2001. Ministers from my department, the Department for Environment, Food and Rural Affairs, and the Department of Health agreed jointly to meet the costs of the annual £1.5 million shortfall that these EU changes would create. This decision was taken to avoid any increase in the cost of milk to local authorities, and thereby lessen the risk of reduced provision. We believe that local authorities and schools are best placed to decide whether their pupils should be offered milk and whether to claim any subsidy on that milk. We do not wish to remove that discretion. However, the new school food standards will specify milk as one of the few drinks that local authorities and schools will be permitted to provide, and more schools may voluntarily choose to offer milk to their pupils in consequence.
The noble Lord, Lord Lucas, is quite right about the importance of breakfast clubs, which we highlight too, and the provision of breakfasts, which is now increasingly taking place in schools. Of course, the provision of a balanced diet is essential within a school. The noble Baroness, Lady Sharp, said that she was starting to come to terms with the regulations and guidance in this area. I have pages of it here which I could read out if the Committee wished, but I do not think that it does. I assure the noble Baroness, Lady Howarth, that there are substantial references to balanced diets, and not least to the importance of fruit and vegetables in schools as part of that. For example, the standards for school lunches will specify that there should be no fewer than two portions per day, at least one of which should be salad or vegetables and at least one of which should be fresh fruit, fruit tinned in juice or fruit salad. I could go on; it is all there. We have taken best professional advice on the establishment of those standards.
I have partially covered Amendment No. 214C. The amendment would remove the power that would allow regulations to ban the provision of certain foods and drinks. We regard this as an important power as it gives us the flexibility we need to keep pace with the findings of new children’s dietary research, which might indicate that a revision of our nutritional standards would benefit specific groups of children.
Finally, on Amendment No. 214D, I am glad to say that regulations will relax the standards to exempt schools from the requirement to follow the standards for food and drink provided at occasional fund-raising events. This can be done as an exception under new section 114A(1).
I was not aware that there was not a requirement for dining facilities, unless those facilities are, as it were, multi-use facilities which can provide for dining in the context of other provision. The issue that has been raised with us in the past, including in this House, concerns kitchens. The Building Schools for the Future guidance does not have an absolute requirement for kitchens because in some cases—in small primary schools and so on—it may be more cost-effective for food to be provided without a kitchen. But schools and local authorities have to consider kitchens in each case. I will write to the noble Baroness with chapter and verse on that.
I am grateful to the Minister for his response. I am very pleased that academies and city technology colleges will be included in these food standard regulations. It is appropriate that they should do so. I take on board the point about school milk. I point to its fat content but, as I stressed, we are not suggesting that it should be the full cream school milk that we used to get, but skimmed or semi-skimmed milk where the fat content is much lower. The calcium content is important. It is a good drink and I am glad that it is on the list of products that Ministers are recommended. I hope that, since it is one of the drinks that can be provided, more local authorities will take up the EU subsidy than has been the case so far. As I indicated, we were aware that school milk was provided at the discretion of local authorities but, partly because of the complications of claiming back the money and so on, it seems that relatively few local authorities or schools are providing it, and children who are eligible for free school meals and would be eligible for free milk are not receiving it.
Nevertheless, I accept that new standards are being developed and that is sensible. The Minister is right—I have been amazed at the amount of material that I have been able to access in the past couple of days, but which, I confess, I have not been fully able to digest. In particular, I welcome the developmentof breakfast clubs and, in the extended school environment, after-school clubs where tea is provided. One is conscious that, too frequently, children are just provided with a pound and told to go down to the shops, where they buy crisps and chocolate. That does not constitute a balanced diet, and a balanced diet is extremely important.
I am grateful for the reassurances that the Minister has given. I shall read carefully what he said. Between now and when we return in October, I shall study the regulations further. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 214B to 214D not moved.]
Clause 79 agreed to.
Clause 80 agreed to.
Clause 81 [Responsibility of governing body for discipline]:
moved Amendment No. 215.
Page 65, line 1, at end insert—
“( ) must conduct, and from time to time review, an audit of pupil behaviour (a “behaviour audit”),
( ) in making a behaviour audit, shall have regard to any guidance issued by the Secretary of State,
( ) shall make the results of a behaviour audit available to all teaching staff and to any inspector (who shall report on it), but need not make them available to parents,”
The noble Lord said: A behaviour audit was oneof the best ideas to come out of the Government’svery good review of school discipline, but I was disappointed not to find such an audit in the Bill. It is all very well running school discipline as if everything is the children’s fault, whereby rules have been issued, the children have misbehaved and when they have misbehaved a sufficient number of times they are excluded. But that is not really the root of many school discipline problems. There is a multiplicity of causes, and the school, in trying to improve discipline, should focus on all of them.
We have been talking about breakfast clubs. Kids who come to school without having been fed will be extremely difficult to discipline. Kids who consume a lot of sugar during a school day will be difficult to discipline. Teachers who are not up to the job of controlling a class will be a major cause of indiscipline. There are many other ways in which a school can organise and improve itself to create a proper level of discipline in its pupils.
Some children will always cause difficulty, but that “some” could be quite a low number. When Haberdashers took over Knights Academy, two pupils were eventually excluded. But when there was the big turn-around at the Ridings school in Yorkshire, I remember that some 50 pupils were excluded. I do not believe that that was due to a difference in the pupils, but to a difference in how such matters were handled. A school that really understands the roots of indiscipline, how to deal with it, and how to address pupil dissatisfactionand the multifarious causes brought out in a well conducted behaviour audit, will have much less of a problem with exclusion. We would then have a much better schooling system.
I was disappointed that the excellent idea of behaviour audits, produced by the Government’s own initiative, had not been taken up. This amendment is an attempt to make the Government think again on this matter. I beg to move.
I shall speak to Amendments Nos. 216 and 219 in this group, standing in my name and those of other noble Lords. I start by thanking SEC, the consortium of voluntary organisations, which is concerned with children with SEN and disabilities. It has provided some of us with excellent briefings. I also declare as an interest the fact that I work with ICAN, the charity that deals with children who have communication disabilities.
These amendments would ensure that when the governing body of a school delegates responsibility for a school’s behaviour policy, it has to assure itself that those to whom it delegates that responsibility have training on SEN and disability legislation.
About 760,000 children in primary schools have SEN. Of those, 67,000 have a statement and therefore just under 700,000 do not. About 550,000 pupils in secondary schools have SEN. Of those, about 76,500 have a statement and therefore just under 475,000 do not. There are approximately 772,000 disabled children under the age of 16. Some disabled children may not have SEN—for example, children with a medical condition—and there may be some children whose SEN does not amount to a disability.
These amendments are based on, among other things, the Audit Commission report of 2002, Special Educational Needs: a mainstream issue, which was very clear about the over-representation of pupils with SEN in exclusions. We should also consider the punishments that led to those exclusions, and I wish to say a word about my personal experience in that regard in a moment.
The analysis of the data for the report provided by 22 LEAs suggested that children with SEN, including those without statements, account for the vast majority of permanent exclusions—almost nine out of 10 from primary schools and six out of 10 from secondary schools. Behind those figures is a significant number of further exclusions. Many pupils are informally or unofficially excluded from school, and that deprives the children of their education and the parents of access to redress.
Exclusions disproportionately affect pupils whose special educational needs impact on their behaviour. However, any learning need, if unrecognised or unmet, can lead to behavioural difficulties which, if not properly managed, may lead to exclusion. I am particularly concerned that the Government’s drive for better discipline in schools, with which I agree, means that some children with special needs are being subjected to punishment regimes which may not be appropriate.
A young man of my close acquaintance who has special needs and behavioural challenges found himself at the start of his secondary education, at the age of 11, in a kind of spiral of punishment. He was subject to a regime which involved what was called “internal exclusion” within the school. He was put into a cubicle within a room with no natural light for a whole day with a teacher or someone in attendance. There was no window and therefore no view outside. He was only allowed to the toilet accompanied, and he had to remain in silence. He was expected to get on with his work under those conditions. This was a pupil who needed support to learn. He was brought a sandwich and a drink at lunchtime but was not allowed outside to join his fellow pupils. He was subject to that day after day. Not surprisingly, his behaviour deteriorated. He was traumatised and, on one occasion, he came out of this regime having written graffiti on himself with a pen from his wrist to his shoulder. It was a form of self-mutilation and a sign of how he reacted to his treatment. I am very pleased to say that this young man has been moved from that school to one which is working very hard to keep him in school and is meeting his learning needs.
I looked at the governors’ code of practice and disciplinary code for that school, as I thought that the young man’s punishment was inappropriate and must have contravened his human rights. However, the school governors, led by the head teacher, were permitted to act in that way. The punishment was completely inappropriate for such a child, and hewas not alone; a cohort of young men in the school was subjected to that regime. It was not working; it was counter-productive. The school was on its way to producing a group of 13, 14 and 15 year-olds who are now permanently excluded from school and are probably wreaking mayhem in the neighbourhood around it.
The amendments would ensure that those drawing up the guidelines and rules are qualified to do so and understand the needs of children with disabilities who have special educational needs. I understand that this part of the Bill is based on the Steer report. While many of the organisations to which I have referred welcome many aspects of that report, particularly the emphasis on teaching and learning, it has limitations. I should like to hear my noble friend’s comments on that. It explicitly sets aside the consideration of pupils with special educational needs—the Committeedid not consider disabled pupils. It emphasises throughout the need for a consistent behaviour policy.
We need reassurance from the Government that the needs of these children will be taken into account, and that more robust safeguards will be written into the Bill. The guidelines that flow from it must take account of the needs of children with disabilities and special educational needs.
I support Amendments Nos. 216 and 219, to which my name is attached. The noble Baroness, Lady Thornton, has shot my fox because she said everything that I had intended to say, so there is no need for repetition, especially as we are trying to get through Committee stage today. I add my support to the amendments and hope that the Government will either accept them or make the necessary alternatives available in the Bill.
I shall speak to Amendments Nos. 216A, 218, 218A, 220 and 222ZA in this grouping, all of which are in my name and that of my noble friend Lady Walmsley. I also support the three amendments that have been spoken to so far.
Amendments Nos. 216A, 218 and 218A would all put into practice some of the more positive aspects of the Steer report. Amendment No. 216A proposes that, as recommended in the Steer report, every school should appoint a pupil-parent support worker—the amendment quotes directly from the Steer report—
“as part of the support staff of the school to work with the teachers to ensure appropriate delivery of pupil and parent support measures”.
Aligned with that are Amendments Nos. 218 and 218A, spelling out some of the parent and pupil support measures that might be appropriate. Amendment No. 218 refers to the list included in Clause 82(1), and rather than just dictating that pupils should show respect, it asks for,
“mutual respect between pupils, parents and staff”.
I shall come back to that amendment in a moment.
Amendment No. 218A asks that those pupils who need help with managing behaviour and relationships should be given support and guidance. We have in mind the sort of counselling advice offered by the charity Place2Be, which a number of noble Lords know about and have perhaps visited. It operates in some 120 primary schools in deprived areas, dealing with children referred by the staff because their behaviour is truly difficult to manage and they are underperforming. Often helping the pupils means helping the parents. The charity always takes parents into its confidence and has their permission before working with children.
Children also self-refer. Once a counsellor is established in a school, and has his or her own room, they hold open sessions where children can drop in to discuss any issues worrying them, whether it is the death of a favourite cat or issues of abuse, which arise on occasions. The counsellor’s room becomes for children the place to be if they have a worry. It is where they go to talk about it. The counsellor helps them to unravel some of the complicated bits of the unstable lives that some children live. For many of these children, school is an oasis of stability in a disturbed life outside. It gives them a place to go and talk things out.
Many children who underperform, whether from disadvantaged or “advantaged” homes, do so because of difficult home circumstances, and teachers do not have the time in today’s crowded curriculum, with SATs pressures and so forth, to give each child the time that they sometimes need to unravel all the complications in their lives and to come to terms with them. That is essentially what the counsellor is there to do. The person concerned should be trained;the counsellors of the charity Place2Be, whichoffers placements for training, are trained child psychologists.
The second half of Amendment No. 218A calls for information and guidance for parents. The concepts of parenting contracts and parenting orders were first introduced in the Anti-social Behaviour Act 2003, and they are extended in Clauses 90, 91 and 92 to give head teachers the right to impose them, where they feel it appropriate, for bad behaviour in school. Many parents who are referred to parenting classes after parenting orders have been imposed on them because their children have been difficult come away after three months asking, “Why did nobody tell me about this before?” The response of parents who have difficulty controlling their children—it is usually the boys—is, “I can do nothing about him”, and they feel that they would like more help with coping with parenting.
During the passage of the Education Act 2005, just before the last general election, we tried to introduce a clause under which, when a child joined a school, whether at primary or transition level, or when they moved into the area, the school would make known to the parents where help, such as parenting classes, might be available. That would convey the notion that every child can be difficult at times, but that help is available: teachers can help, the parent/pupil support worker can help and, if parents do not want to go to anybody at the school, there are other places that can help. The school would give them the telephone numbers of places where they can access that help. That is what Amendment No. 216A is about. Wefeel that it is important for parents to be given information; if parents want help, they should know how to get it.
Amendment No. 218 is about mutual respect. It replaces the concept of,
“respect for others on the part of pupils”,
“mutual respect between pupils, parents and staff”.
In 1989, the Elton report on discipline in schools stated:
“Our evidence suggests that schools which put too much faith in punishments to deter bad behaviour are likely to be disappointed. This is confirmed by research findings. Rutter found that different forms or frequencies of punishment bore little or no relation to standards of behaviour in secondary schools. Mortimore found that behaviour tended to be worse in junior schools that emphasised punishments more than rewards. The more punishments listed, the more negative the effect seems to be...We have suggested that pupils learn more in schools than they are taught. They also learn from messages carried by the way in which the school is run and the relationships between people in it. Our impression is that, in schools with a negative atmosphere, pupils learn to see themselves as irresponsible beings who must be contained and controlled at all times. Our evidence suggests that pupils live up, or down, to teacher expectations... we emphasise the need for adults to model responsible behaviour for children”.
The Government’s Respect Action Plan states that,
“children learn behaviour - good and bad - from the adults around them, and particularly from their parents and teachers”.
Ofsted’s 2005 report Managing Challenging Behaviour states that,
“pupils describe the good teachers as being those who respect pupils”.
The Steer report reiterates those lessons, emphasising the importance of offering rewards as well as sanctions. It says that schools need to set up pastoral support systems for pupils, to which I have referred; that staff need training and support in order to help them to manage pupil behaviour effectively; that staff must themselves demonstrate positive behaviour; and that that should form part of the school’s behaviour policy. None of these areas is represented in the Bill and it is unclear whether any will appear in the statutory guidance referred to Clause 81(4).
Amendment No. 220 is a probing amendment to introduce the concept of redress and, in particular, to ensure that the school has a complaints processin place for parents and pupils who feel that the behaviour policy has been unfairly applied. At present, Clauses 81 and 88 allow for no element of redress. There is no means by which a pupil or parent can challenge a proposed disciplinary penalty that is disproportionate or unreasonable, even if it amounts to degrading or inhuman treatment in breach ofthe pupil’s human rights. Where such a penalty is imposed, it is unlikely that it could be successfully challenged by judicial review, save in extreme cases. In cases where parents and pupils feel that the penalty has been unfairly enforced, there is a strong feeling that they should have the right to complain about the imposition of a behaviour or discipline policy into which, as currently drafted, they have little input. This amendment has been suggested by the National Children’s Bureau, which feels particularly strongly on this issue.
Finally, Amendment No. 222ZA is about acceptable behaviour contracts. Its aim is to promote the idea of acceptable behaviour. The idea is that the school, as part of the development of its behaviour policy, develops a set of rules or guidelines for pupils, setting out the sort of behaviour that it expects from them. Many schools already do this, but the amendment carries the practice slightly further by involving parents and asking them to countersign the document with their children. It tries to emphasise the positive—to raise the aspirations of children and their parents about expected behaviour—rather than the negative of ASBOs, parenting orders and so forth.
I pay tribute to the Government on these clauses, which are well balanced and clearly define the role of the headmaster and governors. In these clauses, we ought to be careful not to add unnecessary things or to go into too much prescriptive detail. I have some sympathy with the point made by the noble Lord, Lord Lucas, in Amendment No. 215, but, given that the roles of the headmaster and governors in setting out disciplinary codes are clearly defined, we do not need to add what could be construed as yet another piece of bureaucracy that a school has to deal with. More than enough procedure is defined. The Bill makes it clear that schools have to have a clearly defined disciplinary policy, and it is clear about the roles of the governors and of headmasters and teachers in relation to discipline.
I have some sympathy with the views expressed in Amendment No. 216, and I will welcome what the Minister has to say on that amendment.
I was puzzled by the point made by the noble Baroness, Lady Sharp, on Amendment No. 220. I am a school governor who has to deal with cases where parents protest about discipline, and I know that their rights are clearly defined. Parents are aware of this. If they are not satisfied, they can contact the governors either informally or in writing. I do not believe that we need to put anything else in the Bill. The same could be said about Amendment No. 222. There is just too much detail here. We should accept that what the Government have done is basically right. There will always be areas where things could be improved but, in terms of defining the school’s role on discipline and the responsibilities of parents and pupils, I commend the Government for what they have done.
I have a very brief comment on Clause 82(1)(a), under which the head teacher must determine measures to be taken with a view to,
“promoting, among pupils, self-discipline”,
and so on. It is worth considering whether that might better say,
“promoting, among pupils, a shared commitment to self-discipline”.
It matters a lot to me that there is a policy of self-discipline that is shared and owned by every member of the school, whether they are teachers or pupils.
The noble Lord, Lord Lucas, referred to the excellent work of the Practitioners’ Group on School Behaviour and Discipline chaired by Sir Alan Steer. As he said, the Steer group recommended behaviour audits to schools as good practice, but it did not recommend making them a statutory requirement, which is why they do not appear in the Bill. We agree with that judgment. Every school is now expected to carry out systematic self-evaluation, which is the central focus of the school inspections carried out by Ofsted. Ofsted provides schools with a self-evaluation form that covers all the main aspects of a school's work, including promoting good behaviour.
The guidance on completing the self-evaluation form recommends the relevant national strategies behaviour audit tool, which was particularly highlighted by Sir Alan Steer in his report, as a good source of evidence that behaviour requirements are being met. So, without making them a statutory requirement, we have given schools a very strong steer—in both senses of the word—towards conducting regular behaviour audits. We believe that this strikes the right balance between regulation and respecting the professional judgment of head teachers and their governors.
My noble friend Lady Thornton raised a set of important questions about special educational needs, as did the noble Lord, Lord Rix. I pay tribute to the work of the Special Educational Consortium and ICAN in this area; we listen to them in great detail and to their recommendations.
Amendments Nos. 216 and 219 are about safeguarding pupils with special educational needs and disabilities. Amendment No. 216 concerns the knowledge of special educational needs and disability responsibilities among those undertaking behaviour responsibilities in a school. Clauses 81 and 82 specify two stages for the drawing up of a behaviour policy. The governing body draws up a statement of general principles and the head teacher then determines the detailed measures that form the policy itself. In determining behaviour policies, heads must act in accordance with their statutory responsibilities towards disabled pupils and pupils with special educational needs. We will be issuing guidance to schools on making and implementing behaviour policies, which will emphasise the importance of taking proper account of children with disabilities and special educational needs.
The Disability Discrimination Act and the duties on schools to make reasonable adjustments in the disability equality plans that they are expected to produce from this December have a good deal to say in this regard. We have just issued a huge guidance document, in large ring binders, on implementing the Disability Discrimination Act in schools and early years settings, which gives many concrete examples of how schools can manage behaviour better and make reasonable adjustments—for example, how children with autism who exhibit serious behavioural difficulties can manage queues at mealtimes and other times of the day when their behaviour is liable to deteriorate. We have also produced a DVD as a training resource to go out to schools. I hope that that will have the impact of significantly raising the awareness of head teachers, teachers and governors of their responsibilities under the DDA.
Amendment No. 216A, in the name of the noble Baroness, Lady Sharp, would require every school to budget for the appointment of a pupil/parent support worker. We are investing £40 million in a pilot of parent support advisers to trial the most effective way to offer early intervention and support to pupils and parents in schools. The pilot includes 20 local authorities and about 600 primary and secondary schools. The pilot is specifically to take forward the Steer group’s recommendations on pupil/parent support workers. We of course want to see the development of pupil/parent support workers taken further. We also think that this should be for the professional judgment of head teachers, supported of course by best practice, so far as is possible. The Steer group did not recommend that the Government should require schools to appoint such workers. Its recommendation made it clear that other staffing structures that delivered similar functions could be equally effective. So, while we support strongly this recommendation and are providing funding for a substantial national pilot, we do not think that there is a need to go to the next stage and make the appointment of such pupil/parent support workers statutory.
We obviously support Amendment No. 218 about
“mutual respect between parents, pupils and staff”.
Even in terms of enforceable obligations, we believe that it is already provided for. School staff have a well established duty of care towards pupils. They must act as a reasonably prudent parent would in like circumstances. Staff are also under a contract of employment, so poor behaviour by teachers or other school staff is a disciplinary offence.
Amendment No. 218A seeks to make guidance to pupils and parents mandatory aims of a school's behaviour policy. Providing support and guidance for pupils with behaviour problems should be integral to schools’ pastoral systems and we will of course use our guidance on behaviour policies to remind schools of the importance of that.
The noble Baroness, Lady Sharp, talked a good deal about parents in this respect. We share her concerns. We want to make sure that all parents can take advantage of a wide range of services to help them in their parenting role. The Childcare Act 2006 requires local authorities to give parents the information that they need on the range of services available to them to support them in their parenting role. By 2010, all schools should offer access to parenting support as part of their extended school services. This should include access to information sessions for parents when their child starts school and moves to secondary school; information on the advice and support available to parents through national helplines and websites and from local services; parenting groups; and more specialised support for parents who might need it, such as targeted support for parents whose children have problems with attendance or behaviour at school.
Amendment No. 220, to which the noble Baroness, Lady Sharp, also spoke, is about procedures for discipline-related concerns and complaints. These already exist. Clause 81 provides a mechanism for parents and pupils to make representations by requiring governing bodies to consult them about the principles underpinning the school's behaviour policy. As for complaints, Section 29(1) of the Education Act 2002 requires all governing bodies to have a general complaints procedure. Any parent who has a discipline-related complaint can use that mechanism to underpin this. We intend to remind schools of their responsibility to make their complaints procedure known in our guidance on school behaviour policies.
Finally, Amendment No. 222ZA would require schools to make acceptable behaviour contracts with pupils and parents annually. Clause 82 provides for that, by requiring head teachers to publicise their school’s behaviour policy and to remind pupils, parents and staff of it at least once a year. Furthermore, expectations about behaviour form part of home/school agreements, which all maintained schools are obliged to have under the School Standards and Framework Act 1998.
I am very grateful for the Minister’s detailed reply to the large number of amendments I spoke to in the group. In particular, I am delighted that in his response to Amendment No. 216A he said that the Government are establishing a series of pilots for the pupil and parent support workers. That is a very important move and can help not only with discipline issues but also with the degree to which we can help some of the more disadvantaged children to improve their performance in schools. Therefore, I am pleased that we have such a positive response to that.
As for Amendment No. 218, yes, it is part of teachers' contracts, and so forth, but it would be nice to have the concept of mutual respect reflected in the Bill. We will read in Hansard what the Minister said but we may come back to this issue on Report, because it would be good to have that concept of mutual respect reflected. I am pleased to hear what he said about the guidance to be issued—in particular, the information for parents. He is quite right that in the Childcare Act, we are ensuring that parents get access to early parenting information, but people forget and lose information that they obtain when children are quite small. As children grow up, different issues arise. It is vital that parents recognise what is a normal part of growing up and that, if they need help, it is available. I shall be delighted if the guidance to be issued means that, especially at important points of transition, parents are reminded of where they can get help.
I take on board what the Minister said about the existing complaint procedures in the Education Act 2002. I had forgotten that section and it is good to be reminded that there is a very clear complaints procedure. That is important and I am grateful for that.
I thank my noble friend for his answer and commend his clear commitment on the record to the issues of SEN and children with disabilities, about which we have heard during debates on several Bills. That was a very helpful answer. I think that the Special Education Consortium should be pleased with the Government's response. The noble Lord, Lord Rix, and I will be consulting it. That discussion could not take place in the other place, so we felt that it was important to raise the matter here.
I am very grateful to the Minister for his answer; I shall just have to be satisfied with it. I understand that there is always a tendency to try to impose obligations on good schools to ensure that bad schools behave. Perhaps we can revisit the subject briefly when we discuss the office—or Ofsted, as it used to be called—later.
I am going to suffer over the next couple of months from a lack of DfES guidance to read. Can the Minister therefore help me by giving me a copy of the disability guidance that he so helpfully displayed?
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 216 and 217 not moved.]
Clause 81 agreed to.
[Amendment No. 217A not moved.]
Clause 82 [Determination by head teacher of behaviour policy]:
[Amendments Nos. 218 to 220 not moved.]
Baroness Walmsley moved Amendment No. 221:
Page 66, line 15, at end insert “such times including in particular—
(a) the journey to and from school, and
(b) during work experience placements”
The noble Baroness said: I shall speak also to Amendments Nos. 222B, 222C, 222D and 237A. The amendments are about how the disciplinary code is enforced—the where, the when, the who, the why, the what and all those questions. Amendment No. 221 is intended to limit the circumstances under which staff may be expected to regulate the behaviour or conduct of pupils off school premises. Under the Bill, staff could impose penalties for behaviour that has nothing to do with the school. That could give staff the responsibility to manage or even to police a pupil's behaviour at any time and for any reason. Additionally, staff could base a decision on hearsay evidence, because they are not around during the holidays, responding in a disproportionate manner to an unproven allegation of misbehaviour and thus undermining the pupil’s right to know and understand the charge and be able to defend themselves against it.
Naturally, I do not expect that many schools would behave in such an unreasonable manner, but what worries us is that under the Bill they have a duty to manage pupils' behaviour in circumstances where it would not be reasonable to do so. It is difficult for schools to investigate allegations of misbehaviour that occur off-site. Children have the same rights to privacy and family life as adults under Article 8 of the ECHR. If schools were to interpret the clause very widely, one outcome could be an interference with those rights. After all, in the home, in the garden or when children are out with their parents in the park or on the beach during the summer holidays, it is up to parents to manage and police children's' behaviour, not the school. The Bill should clarify that schools must not seek to impose penalties for the behaviour of pupils when they are under the control of their parents.
In his report, Sir Alan Steer recommended that the legal right to impose discipline would include extending the teacher's ability to exert authority beyond the school,
“to any off-site activity which is a continuation or extension of schooling such as a field trip or a school journey”.
That is perfectly reasonable. We seek through the amendment to put parameters around that power and duty in order to be a little more specific about where and when it is both reasonable and feasible for the school to manage the pupil’s behaviour.
Amendments Nos. 222B, 222C and 222D are all about who can impose penalties and why and ensure that they are for the well-being of the child. Amendment No. 222B ensures that the decision to impose a penalty on a pupil can be made only by a head teacher or a member of staff authorised bythe head teacher. We believe that it should be down to the head teacher or someone to whom he delegates that power to decide to impose penalties. The current wording is rather vague. It seems to say that any member of staff can impose a penalty unless the head teacher says that they cannot. We would like to put it the other way round.
Amendments Nos. 222C and 222D together will add to the matters that must be taken into account when determining whether the penalty is reasonable. They ensure that the penalty must contribute to the well-being of the child in order to be considered to be reasonable. I refer the Committee to the speechmade by the noble Baroness, Lady Thornton, on Amendments Nos. 216 and 219. She nicely gave me some good examples of where punishments were not reasonable because they did not contribute to the well-being of the child. Also, they were not effective; in fact, they turned the child in completely the wrong direction. One might believe that any penalty that is not effective is not in the interests of the well-beingof the child, because it will not help the child to address the unacceptable bad behaviour. Therefore, thoughtful and effective penalties that are also reasonable are, by definition, in the interests of the child. That element of well-being should be considered when considering how reasonable disciplinary penalties are.
Amendment No. 237A is about the burden of proof in cases of confiscation. That is a sensitive and difficult area of discipline. Proposed new subsection (1) deals with the need for an individual to prove that the confiscation was lawful, as in the Bill. The amendment was proposed to us by the NUT, because it is very concerned about this part of the Bill. It believes that the requirement for an individual teacher to prove that the confiscation was lawful is contrary to the normal principle of the criminal justice system and, more particularly, to Articles 6 and 7 of the Human Rights Act 1998. In reality, unlawful seizure, as well as the inappropriate behaviour of the teacher, could be considered a criminal offence, so the teacher should not have to prove their innocence. The burden should be on another to prove their guilt.
I remind your Lordships that Article 6 on the right to a fair trial says:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
Article 7 is entitled, “No punishment without law”. It seems very odd that the Government should have introduced the element of confiscation to the effect that the person has to prove that confiscating the article was lawful.
Proposed new subsection (2) deals with the reasonable disposal of the confiscated property and would provide that it would be lawful to dispose of the property if it could not reasonably be returned to its lawful owner—for example, if it was stolen or if the property was a weapon or some drugs and returning it to the pupil, parent or guardian was illegal—or where it might precipitate the need for further punishment, such as handing back cans of spray paint when the pupil has been punished for graffiti. That, of course, is simply asking for trouble, is it not?
The NUT is concerned that teachers could be open to challenge without specific criteria that set out when and why property could be disposed of. It would also be unfair not to return a pupil’s property, such as an iPod or a mobile phone, which might be quite valuable, without proper reason for keeping it. The NUT is therefore concerned that this would otherwise be incompatible with Section 1 of the Human Rights Act, which gives the child the right to its own property. There needs to be a presumption that an item that has been confiscated because its use in class is disruptive would be returned to the pupil afterthe class or perhaps to the pupil’s parents at an opportune moment, and that there would be no right to dispose of property of that sort.
The key issue is the burden of proof. When this subject was discussed in another place, the Minister failed to provide a satisfactory answer. He said:
“Having to prove that a confiscation was lawful seems to reverse the “innocent until proven guilty” principle, but that is not, in fact, what the clause is about. Clause 81 does not make somebody guilty. Quite the opposite: it makes him innocent if he can show that his actions were lawful”.—[Official Report, Commons Standing Committee E, 10/5/06; col. 862.]
I put it to the Committee that that is a tautological argument. The “innocent until proved guilty” principle is not about legalisation, which makes someone guilty; it is about someone not having to prove their innocence of an offence defined by law. The Minister Jim Knight’s statement that the clause makes someone innocent if he can show that his actions are lawful is just another way of saying exactly what we are concerned about. By the way, the Joint Committee on Human Rights raised exactlythe same concern in its latest legislative scrutiny on the Bill. The measure seems to run completely counter to the normal principles of criminal justice, and I wonder whether the Minister can explain why it is necessary. I beg to move.
I shall speak to Amendments Nos. 222, 246 and 239 in the group. First, I have never understood why pupils have been allowed for some years now to leave the school premises in the lunch break, which is what Amendment No. 222 is about. It is not intended to restrict children’s movements for any arbitrary reason. Indeed, its primary purpose is not even to ensure that children stay in school to eat good school meals as an addition to the great progress that has been made in recent months on the awareness of the need for good nutrition for children. We believe that it would contribute to the safeguarding of children while at school, to a strengthening of the work ethos and to a stronger sense of the school as a community if the children were to remain there during the school day.
I stress that this is very much an enabling amendment. I note from my experience all those years ago and from more recent experience as a school governor that children leaving the school premises during the lunch break are much more likely to become disruptive, because their day in the school environment has been broken and they are much more likely to find it more difficult to settle back into the afternoon if they are allowed to leave the school premises and have no discipline and no cover during that break.
The amendment would give head teachers a vital legal entitlement to restrict the hours when children can leave school during the day. That statutory weight would be required where a head teacher comes under pressure not only from pupils but from parents for such a decision. We must remember, however, that it is the responsibility of a head teacher to ensure the safety of children during all school hours. Currently, teachers are forced to spend a large amount of their time filling out risk assessment forms. Notably, schools already have to fill out a risk assessment form on the safety of the school playground and on the likelihood of abduction and street crime. It seems only sensible that head teachers should be given the legal capability to put measures in place to combat that risk. We are talking not only about the risk of crime from external sources but from children finding themselves on the conveyor belt to crime if they can leave the school premises and, in some circumstances, misbehave during the day. The regulatory impact assessment states that the new disciplinary measures,
“would also have symbolic force, in reaffirming the publicly recognised powers of school staff to discipline pupils”.
I therefore hope that the Minister will be able to accept our amendment and, in so doing, make another symbolic statement in favour of safeguarding children in our schools.
Amendment No. 246 is a probing amendment in that it would allow children who have been excluded and who are not allowed to leave their home during the day some way of leaving their home for the same period as a lunch break while they are excluded. As I say, the amendment is purely probing. We want to ask the Minister what the current arrangements are for ensuring that excluded children are supported by their schools during exclusion, and what measures exist to ensure that those children act within statutory obligations during that exclusion.
Amendment No. 239 is another probing amendment intended to clarify who exactly will be able to implement a school’s discipline policy. The Bill enables teachers to designate a prefect as a “member of staff” with regard to discipline policy. If the Government intend to allow prefects to implement the body of governors’ disciplinary provisions, that should be clear in the Bill. We on these Benches are not opposed to the idea that prefects should be given more responsibility than other pupils in the school, but we would object strongly to wording that allowed prefects to help with discipline as if masquerading as members of staff. We do not quite understand the meaning of this part of the Bill.
Will the Minister explain the precise framework for the disciplinary policy in the Bill and the exact legal status of “lawful control” used in the Bill to describe the nature of the responsibility of the disciplinarian for the pupil? Can a prefect or any volunteer have lawful control? The regulatory impact assessment states that head teachers will be able to,
“extend powers to adult voluntary helpers as appropriate”.
I hope the Minister can inform me whether this loose definition would mean that parents on school trips and other volunteers will be defined as members of staff where it is convenient for teachers. If it would, I hope the Minister can tell the Committee what implications there will be for the need to carry out CRB checks and so on.
If a parent were to be assigned as a member of staff for discipline purposes, presumably the school, as a regulated activity provider under the provisions of the Safeguarding Vulnerable Groups Bill, would have to carry out a CRB check on that person. I have to make it clear that we are not against that in principle. It is a very good idea. I have had experience as a parent on school trips, which I found extremely difficult. I was not there, in a sense, as a parent—my children would be too embarrassed to think of me being there as their parent—nor was I given the power to discipline the children. So parents are there, but they are unable to act. In principle, we are very much in favour of what we think the Government are trying to achieve.
Using the misnomer as a definition, or making “member of staff” the only possible legal definition, will generate huge problems for schools. Albeit that we are not against the system of prefects, in using that terminology, conflicts may arise if students are given a different legal status from their classmates. I hope that the Minister will provide clarity on this and my previous points.
The noble Baroness, Lady Buscombe, rightly said that it may be good practice for schools to forbid pupils to leave during lunch hours or breaks. Many schools do that already and it is often regarded as good practice. The Bill gives head teachers the power to impose such restrictions. It is clear that these powers are covered by Clause 82. We do not want to specify lunch hours and other breaks in particular because, if we specified one area, the question would arise about why the Bill did not list all the measures that a head could determine, such as wearing school uniform and not running in corridors. One could give an exhaustive list of behaviour which it might be thought appropriate to put in the Bill. We acceptthat the restriction the noble Baroness talked aboutis important, and it is emphatically covered byClause 82.
On Amendment No. 246, we should stress that Clause 96 does not prevent excluded pupils from having a break during the day. But we want to ensure that it prevents such breaks being taken in a public place, subject always to the defence of reasonable justification. We want to ensure that parents, or those who are responsible for the welfare of children, take proper responsibility for them in the first five days of an exclusion and that they are not simply roaming the streets in an unacceptable way.
However, the noble Baroness’s amendment has caused my lawyers a slight flurry—if I may put it that way. Clause 96(3) states:
“If the excluded pupil is present in a public place at any time during school hours on a school day”.
The lawyers are not quite clear whether the definition of school hours in subsection (3) would include lunch time, if for example a school’s normal policy was to allow pupils to be in a public place during lunch time. There is much confabulation going on among the lawyers. I may need to bring forward an amendment on Report, but I am not clear about that now.
Amendment No. 239 probes the issue of school prefects and pupils with responsibility in a school. We are clear that pupils should not have those disciplinary powers under the meaning of the Bill. We took advice on the role of prefects from our stakeholder group on behaviour and attendance, on which all the professional associations were represented. Their conclusion, and ours, was that it would be wrong to give such statutory powers to pupils. That said, this amendment is unnecessary because only members of staff can impose disciplinary penalties under the Bill. It is clear that throughout Chapter 1 of Part 7 the word “pupil” is used in contrast to “member of staff”. It is therefore very unlikely that any court would interpret the legislation in a way that made a pupil a member of staff. For further clarification, I say that firmly on the record. To reinforce that, we also intend our guidance on behaviour policies to make clear that head teachers cannot authorise pupils to impose sanctions.
Turning to Amendment No. 221, tabled by the noble Baroness, Lady Walmsley, Clause 82(5) enables a head to regulate the behaviour of pupils when they are out of school and not supervised by school staff, but, crucially, only to such an extent as is reasonable. We believe that the test of reasonableness, which was supported by the stakeholder group on behaviour and attendance, is adequate to govern this provision. Her amendment seeks to specify particular circumstances where this might be appropriate. We obviously agree with the two that she specified—journeys to and from school, and work placements—but we believe that these are clearly encompassed by the clause. Specifying some rather than other out-of-school contexts in which it would be desirable for head teachers to seek to regulate might imply that other circumstances are not so reasonable to monitor. Although we accept the two cases that the noble Baroness raised, we do not believe that it is right to specify particular circumstances. To assist heads in drawing up their behaviour policies, we will provide guidance, which will encompass examples of what might be considered reasonable. It will include the two examples that the noble Baroness raised but we do not wish, for the reasons that I have given, to specify that in the Bill.
Amendment No. 222B seeks to restrict the power to impose disciplinary penalties to staff who have been specifically authorised to exercise that power by the head teacher. That is appropriate for parent volunteers and other unpaid staff for the reasons that the noble Baroness, Lady Buscombe, gave. Clause 84(4)(b) provides for that. There are separate arrangements in respect of CRB checks, which we debated at length in the Safeguarding Vulnerable Groups Bill that regulates the circumstances in which checks need to be undertaken. The noble Baronesses will remember the lengthy discussions that we had about the definition of the word “frequent” in respect of frequent supervision of pupils, which governs that point.
We do not believe that it is right for paid staff to be subject to restrictions on their power to impose discipline, which Amendment No. 222B would allow. Every paid member of staff whose job involves supervising pupils needs the power to discipline them. The power to discipline is meaningless without the power to impose disciplinary penalties. Every paid member of staff whose job involves supervising pupils should get this power by virtue of their job. Of course, they are expected to be properly trained and supervised in their performance of that job. Clause 84 provides for that.
On Amendments Nos. 222C and 222D, we obviously agree with the sentiment that the enforcement of penalties should promote the well-being of children, but the amendment does not seem desirable. Schools have a well established duty of care towards their pupils, which means taking the same kind of care as a reasonably prudent parent would provide. A reasonably prudent parent would of course protect a child’s well-being. Surely, the key point is that all disciplinary penalties—from the mildest through to permanent exclusion—have to strike a balance between the interests of the individual child and those of the school community as a whole. Of course, penalties should signal to the individual child that a particular behaviour is unacceptable. We hope that he or she will learn from that. Penalties should also protect the rest of the school community by deterring children from repeating such behaviour and signal to other pupils that the behaviour is unacceptable. This means that it is not always possible to argue that a particular penalty promotes the well-being of the pupil on whom it is imposed. For that reason, we do not think that it is sensible to add the additional requirement proposed.
As the noble Baroness, Lady Walmsley, said, Amendment No. 237A, which was moved at the instigation of the National Union of Teachers, seeks to provide that all confiscations are lawful unless proved otherwise. My honourable friend Jim Knight wrote at length to the noble Baroness’s colleague Sarah Teather with substantial chapter and verse on the legal position and why we have adopted the position that we have in the Bill. I could read out the whole letter or send it to her to ensure effective co-operation between her Front Bench and the Front Bench in the other place. If she has any queries on it, I would be more than happy to respond to them directly. We believe that the power we are taking is reasonable and meets the human rights concerns that she raised. Having read the letter carefully before this debate, I was wholly persuaded by it. On that basis, I hope that I can conclude.
I thank the Minister for his offer, but I do not think that I will take him up on it. On Amendment No. 221, I have a question about how the phrase that the penalty would be only to the extent that it is reasonable would be interpreted. As the Minister said, although the guidance will have examples, how would it be tested if someone thought that one of the penalties was unreasonable? Perhaps the noble Lord would like to write.
The issue of reasonableness is tested by the courts all the time. As I understand it, it is what a reasonable person would think was a reasonable action in the light of all the circumstances. However, I am sure there is a much longer legal definition which could be provided for the noble Baroness.
I thank the noble Lord. I presume, then, that this would be dealt with through the normal procedures of the courts.
Turning to Amendment No. 222B, while I understand the Minister’s point about what the head teacher would do in relation to parent volunteers and certainly I agree that every paid member of staff should have the power to impose discipline, I still think that the Government have this the wrong way around. The direction should come from the head teacher, who is in a position to decide whether someone should or should not have a particular power of discipline. However, I shall read carefully in Hansard what the Minister has said.
On Amendments Nos. 222C and 222D concerning well-being, the Minister suggested that this is already covered by schools’ duty of care and that a balance must be struck between the well-being of the child and protecting the rest of the school from the indiscipline of a particular pupil whose behaviour may affect the educational opportunities of other children. While I have a great deal of sympathy with that, it is important to make it quite clear that no penalty should be imposed on any child that would actually damage his or her well-being. I suggest that anything which would be effective and teach the child the error of his or her ways would be for their benefit, and therefore no reasonable penalty would be outside the interests of the child’s well-being. Given that, I do not wholly understand the Minister’s difficulty about being specific here and stating that punishments should contribute to the well-being of the child. Again, however, I will look carefully at what he has said. Having looked at the letter he referred to, it still strikes me as tautological, so I think that we shall have to agree to disagree about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos 222 and 222ZA not moved.]
Clause 82 agreed to.
Clause 83 agreed to.
moved Amendment No. 222A:
“Permanent exclusion of pupils
(1) This section applies in relation to the permanent exclusion of a disabled pupil or a pupil with special educational needs by any school at which education is provided for him.
(2) No such pupil shall be excluded unless a review has been held of—
(a) the sufficiency and effectiveness of the reasonable adjustments being made for him if he is a disabled pupil, and
(b) the special educational provision being made for him if he is a pupil with special educational needs.”
The noble Baroness said: I shall be brief in moving Amendment No. 222A because I am joined on this amendment by the much greater experience and wisdom of the noble Lord, Lord Rix, and the noble Baroness, Lady Darcy de Knayth. The purpose of the amendment is to ensure that a disabled pupil or one with special educational needs has a review before he is permanently excluded from school. As we noted in an earlier debate, the figures are stark: the Pupil Level Annual School Census data for 2003-04 show that two-thirds of exclusions are of pupils with SEN.That is clearly unacceptable. Exclusions affect disproportionately those pupils whose special educational needs impact on their behaviour, which means that these are precisely the children who need to be kept in school in order to benefit from education and support. Further figures from the National Autistic Society are of deep concern to the Special Education Consortium and should likewise be of concern to us. They indicate that around 27 per cent of autistic children have been excluded from school at least once, with 23 per cent more than once.
As was mentioned in an earlier debate, these numbers hide an even larger number of children who are excluded. Many organisations running parent helplines report a number of practices where children are being informally excluded. For example, a parent may be asked not to bring a child into school until10 o’clock in the morning, or a grandad on the mum’s behalf may be told to collect a child after lunch each day. We know that such practices are illegal, but parents are often not aware of it. However, they may be so concerned to keep their child in school that even if they do know that these practices are against the law, they are prepared to go along with it because of the problems they face in trying to keep their child in education. The Select Committee report on special educational needs recognised the problem, while Jim Knight in another place mentioned it during the Third Reading debate on 24 May.
This amendment would provide disabled pupils and those with SEN at risk of exclusion with a statutory requirement for an early review to ensure that adjustments and provision are being made for them before they can be permanently excluded. I beg to move.
Although I have third billing here—a position I never enjoyed in the theatre, I am glad to say—my noble friend Lady Darcy de Knayth has indicated that perhaps I should speak next. All I would like to add to the wise words of the noble Baroness, Lady Thornton, is that DfES guidance recommends that where all else fails, the school should seek a statutory assessment or, for a pupil with a statement, an early annual review. Perhaps I may quote the relevant words:
“Schools should try every practicable means to maintain the pupil in school, including seeking LEA and other professional advice and the support of School Action Plus or, where appropriate, asking the LEA to consider carrying out a statutory assessment. For a pupil with a statement, where this process has been exhausted, the school should liaise with their LEA about initiating an interim annual review of the pupil’s statement”.
The high level of exclusion among pupils with SEN suggests that these recommendations are not being followed. The SEC and all on this side of the Committee, I am sure, would like to see those recommendations strengthened and on the face ofthe Bill.
I am grateful to my noble friend Lord Rix for speaking before me because I have less to say than he. I simply want briefly to express my support for the amendment, and to say that I do hope the Minister will consider some of our earlier amendments to ensure better training for teachers and stronger support services. With those, you are less likely to get exclusions. However, where there is the threat of permanent exclusion, I hope that the Minister will acknowledge that far too many pupils with disabilities or SEN are so excluded.
I do not think the noble Baroness, Lady Thornton, quoted the 2002 Audit Commission report, SEN: A mainstream issue. It points out that almost nine out of 10 permanent exclusions from primary schools and six out of 10 from secondary schools involve children with SEN. Those figures are far too high and while there is guidance, this needs to be put on to a statutory basis. I do hope that the Minister will come back to us with something positive.
I rise to speak briefly to Amendment No. 241 in this group. We have already heard the statistics regarding the exclusion of children with special needs. Our amendment would ensure that no child is sent to a pupil referral unit without the appropriate assessment of their special needs in relation to their statement. We have already had lengthy debates on the provision for special needs, but this amendment would ensure that no child with SEN is sent to a pupil referral unit until their statement has been adequately analysed for the suitability of referral. I hope that the Minister will be able to inform noble Lords about current plans to reduce the number of children with SEN facing exclusion, and how the funding linked to statements currently moves from school to pupil referral unit.
Amendment No. 242, in my name, deals with the rights of childrenfacing exclusion. I spoke on this during a previous education Bill, when the Government responded sympathetically but said that the provision should not be included in primary legislation because it was already part of the guidance on school exclusions in England.
At that time, briefing had been supplied to me by Save the Children, the charity of which I was for many years a trustee and executive member. It had undertaken a great deal of research which indicated that excluded children were anxious that their version of events should be heard before exclusion took place, that many wanted to appeal, and that it was not sufficient simply to leave it to parents. Save the Children has asked me to raise the matter again. It points out that the current statutory guidance does not enforce the involvement of the child in the exclusion process. Not all schools provide for children and young people to make representations. Furthermore, the current guidance does not cover the provision of relevant information to children and young people regarding their exclusion, so they are not always in a position to make representations at exclusion hearings even if they are allowed to attend.
Research demonstrates that children and young people often felt that the exclusion process happened around them and did not directly involve them. A number of them explained that if they had been given a voice at exclusion meetings they could have explained their behaviour and perhaps the reasons behind it, such as living in care or family problems. Fully involving children in the exclusion process would ensure that they took responsibility for their actions and did not risk becoming altogether disengaged from education. It was clear from the research that many young people were only too well aware of what exclusion could mean for their employment prospects—indeed, for their life chances. One young man declared, “I don’t want to become thick”. Others had wanted to appeal but, for example, one young person said, “My mum didn’t want to because it would take too much time”.
Legislative change would give children in England the same rights as children in Scotland and Wales. It is therefore crucial that statutory guidance is strengthened through legislative change. I hope the Government will accept the amendment or, if not this wording, at least the principles involved and return with their own wording on Report.
My noble friend Lady Sharp and I have added our names to that of the noble Baroness, Lady Turner, on her amendment. However, we are also sympathetic to the other amendments in the group. What we would really like to see is zero exclusions. Local authorities that have initiated programmes to try to ensure that there are zero exclusions have found that there are enormous benefits for the children in the area and for the schools. It takes a great deal of effort to carry out a review to ensure that a child is properly catered for and goes to an appropriate place, even temporarily, if his or her place in a particular class is causing problems, but it can be enormously beneficial both for the child and for the school. The statistics about the number of children with special educational needs who are excluded are nothing short of shocking; something serious has to be done.
As to the amendment of the noble Baroness, Lady Turner, noble Lords will know how keen we on these Benches are on the voice of the child. In a situation that is so crucial for the child—so life changing for the child in the wrong way—as being excluded from the school, there is really no excuse for any school not to follow the guidance and ensure that the child has the opportunity to speak for himself or herself. Even if the parent does not want to speak for the child, or feels that he or she does not have the time or it is too much trouble, it is important that the child has the appropriate information to make his or her own case. It may be in the guidance but there is evidence that some schools are not following it, as the noble Baroness, Lady Turner, has said. Therefore perhaps we need to strengthen the guidance and put it into legislation.
My Amendment No. 236 also relates to minimising exclusions by seeking to ensure that there are joint pupil referral units which can engage with difficult children. I am grateful to the Minister for his letter of 17 July, which has been placed in the Library. I think we are both on the same wavelength, although I should like, if I may, over the Recess to discuss with him or his colleagues how and to what extent local authorities should be involved in facilitating this process.
My amendment gives the Committee the opportunity to discuss how far guidance should be statutory and how far you need only have regard to it. What has been said by other noble Lords merely illustrates the position. We all know that some schools pay no attention to the rules. The whole process of an appeal to the governors’ committee in such schools tends to be a bit of a whitewash, and going on to tribunals is unnecessarily difficult. Nevertheless, it is necessary to balance that against the difficulties which would arise if the guidance were statutory and parents could appeal against failure to follow any particular dot or comma in the regulations.
We need to improve things because, as everyone has said, the figures show that the situation is wrong. Such a high proportion of SEN children should not be excluded because exclusion is almost always the wrong answer for a child with SEN. An agreed placement in a different institution may be the right thing if the school cannot meet a child’s needs, but if the child is getting to the point of being excluded, their needs have not been met for some considerable time. One needs to work back up the chain and, I hope, produce a system which sees this proportion falling over time.
In that context, I am very attracted to what the noble Lord, Lord Dearing, said. I missed the letter that was placed in the Library—perhaps it is waiting there for me to read in the Recess, among the pile of things to which I have not yet paid full attention—but what is proposed would seem the right approach. You are saying to schools, “You cannot get rid of these children because they are your pupils, but you can place them in a different context if that is required to ensure the best possible education for them and other pupils”. There are some very good PRUs around the country but they become part of the school family. These children continue to be part of the mainstream education system, and it would be a change of spirit and an arrangement which could be extremely constructive, perhaps also bringing in generalised special schools. As, I am sure, noble Lords know, many of those schools are extremely good at remedial treatment. They pick up children who have become emotionally damaged as a result of their special educational needs and who need a period of respite and specialist attention before going back into mainstream education. It seems a very constructive approach and I hope that the Government will take it seriously.
As the Minister for special educational needs, I am very alive to the issues raised by the noble Lord, Lord Rix, my noble friend Lady Thornton and the noble Baroness, Lady Darcy de Knayth, in respect of excluded pupils. However, in my experience, there are always more statistics that one can give. I shall give more statistics because I want to put the issue into context. I accept that there is a continuing serious issue in regard to the exclusion of many children who have special educational needs. We need steadily to improve our support for schools to enable them to make the reasonable adjustments that we want to see made for pupils with SEN, and to tackle and improve their behaviour without making exclusion necessary.
There has been a very significant improvement in this area in recent years. I am very keen that the figures should go on the record to inform further debates. The number of permanent exclusions from schools has fallen dramatically from 12,300 in 1997 to 9,440 last year, a reduction of one-quarter. Exclusions of pupils with statements of special education needs are down even more significantly, from 2,250 in 1997 to 850 last year. The percentage of permanent exclusions of pupils with special educational needs has halved in that period, from 18 per cent in 1997-98 to 9 per cent last year.
We all accept that there is a continuing issue on exclusions generally, and exclusions of pupils with special educational needs in particular, but the statistics show a significant improvement in the past nine years. I believe that that has been due in good part to the much greater seriousness with which schools, head teachers and governing bodies take special educational needs. It is also due to the significantly strengthened guidance that we have issued. The guidance is very tough. Paragraph 43 of the most recent guidance on exclusions of pupils from schools and pupil referral units, issued in October 2004, says:
“Other than in the most exceptional circumstances”—
I stress those words—
“schools should avoid permanently excluding pupils with statements. They should also make every effort to avoid excluding pupils who are being supported at School Action or School Action Plus”—
those are pupils with SEN who do not have statements—
“under the special educational needs code of practice, including those at School Action Plus who are being assessed for statements. In most cases, the head teacher will be aware that the school is having difficulty managing a pupil’s behaviour well before the situation has escalated. Schools should try every practicable means”—
again, I stress those words—
“to maintain the pupil in school, including seeking local authority and other professional advice and support at School Action Plus or, where appropriate, asking the LEA to consider carrying out a statutory assessment. Where a child is permanently excluded, the head teacher should use the period between his or her initial decision and the meeting of the governing body to work with the local education authority to see whether more support can be made available or whether the statement can be changed to name a new school. If either of these options is possible, the head teacher should normally withdraw the exclusion”.
I hope that when Members of the Committee study my words in Hansard, they will see that the guidance is very strongly drawn. It has significantly reduced exclusions, particularly of pupils with statements of special educational needs. If there are further changes that we could reasonably make over and above that and our guidance on implementing the duty to make reasonable adjustments in respect of disability, we will of course consider them. But the judgment I have reached is that in statutory terms, and in terms of the guidance which underpins statute, the provisions in place are about as strong as we could reasonably make them.
The issue, as the noble Baroness, Lady Darcy de Knayth, rightly highlighted, is the actual levelof training provision in schools. We are seeking constantly to improve that so that teachers, head teachers and governing bodies can make the best possible provision for pupils with special educational needs, including those whose behaviour is such that they might become liable for exclusion.
It is fair to say that the figures I gave demonstrate that authorities are taking note of the guidance. We would not have had these very significant reductions if they were not.
The guidance needs to be seen in the context ofthe figures. As always with these debates, it is the direction of travel that is so important, and that has been very much in the right direction in recent years. However, I am always open to reflecting on this further, and if we could make changes which would reasonably secure a further improvement, we would do so. But having looked at this in some detail, my judgment is that the statutory position and the position on guidance are not only satisfactory in terms of the words on the page but are being demonstrated by significant improvements on the ground.
Amendment No. 214 in the name of the noble Baroness, Lady Buscombe, seeks to ensure that local authorities can reassess statements of special educational needs for permanently excluded pupils when they are excluded. Local authorities already have a duty to maintain statements of special educational needs which meet children’s current needs. Where a child is permanently excluded, local authorities should consider whether the child’s statement continues to meet his or her needs and in any case must amend the statement to name a new school where the child’s needs can be met.
Under the proposed legislation, there will be no time limit on the alternative provision and all excluded pupils, whether with statements or not, will be able to enjoy the benefits of it until they are reintegrated into an appropriate school or other educational provision. For statemented children, this will be when the statement is amended.
Amendment No. 236, in the name of the noble Lord, Lord Dearing, seeks to empower local authorities to transfer their duty to establish and manage pupil referral units to groups of secondary schools. The noble Lord was good enough to referto the letter I sent him, which I will happily circulate to other noble Lords so that they do not have to go to the Library. We have been paying very close attention to this area, as I set out in the letter, and we are already working to give local schools a significant role in the management of pupil referral units and the responsibility to identify and commission alternative provision for their pupils, including a strong lead to local authorities to be prepared to delegate budgets to groups of schools to manage this provision directly.
Furthermore, we intend to make regulations for the establishment of mandatory management committees for pupil referral units from September 2007. At present, there are no arrangements for such management committees; pupil referral units are managed directly by the local authorities. The regulations will require that senior staff, as well as governors of local schools, should form the bulk of the membership of a pupil referral unit management committee, which would take on many of the functions currently handled by local authorities.
We have given a good deal of thought to these regulations and the policy underpinning them. Our concern is precisely that raised by the noble Lord, Lord Dearing—that local schools should take real responsibility for the provision of pupil referral units. We believe that they could make a significant contribution to their better management, whereas at present such units are largely apart from the provision that mainstream schools are expected to make, and they have no responsibility for them.
From 2007, we expect all secondary schools to be in partnerships to improve behaviour and tackle persistent truancy, using funding devolved by the local authorities, and if school partnerships are compelled to fund their pupil referral units, we fear that that may limit their flexibility to fund other types of provision. Up to that point, we are certainly prepared to go with the noble Lord, Lord Dearing.
Amendment No. 237 in the name of the noble Lord, Lord Lucas, seeks to change the status of the exclusion guidance by requiring that appeals panels act in accordance with the guidance rather than having regard to it. We have given a good deal of thought to this amendment but we do not think it is the right way to go. We have comprehensive regulations which govern exclusion procedures. The guidance goes beyond the regulations by exploring some of the factors that decision-makers—head teachers, school governing bodies and independent appeals panels—must take into account. But decision-makers must retain their discretion to make their own decisions, taking account of the circumstances of the individual case, which is crucial in making decisions about exclusions. Requiring decision-makers to act in accordance with that guidance would in many cases remove or narrow their discretion to the disadvantage of the pupils whose welfare they are expected to be considering.
In her Amendment No. 242, my noble friend Lady Turner raised the issue of the child’s right of representation in the exclusion process. In responding to a similar amendment tabled by my noble friend to what became the Education Act 2005, my noble friend Lord Filkin undertook to strengthen DfES guidance, to emphasise that the excluded child or the child threatened with exclusion should be encouraged to make representations about his exclusion at the various stages of the exclusion procedure. I undertake that these amendments will be made this September when we revise and reissue the guidance, which will fully take account of the commitments made tomy noble friend during the passage of the previous Bill.
I thank my noble friend for such a detailed response. I hope that he did not think that those of us making these proposals did not recognise that great improvements had been made and that, as he rightly said, we were on the right track, travelling in the right direction on these issues. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 84 [Enforcement of disciplinary penalties: general]:
[Amendments Nos. 222B to 222D not moved.]
Clause 84 agreed to.
Clause 85 agreed to.
moved Amendment No. 223:
Page 69, line 3, after “pupil” insert “or student”
The noble Baroness said: Amendments Nos. 223 to 233 and 235 are all about inserting “student” instead of “pupil” in Clause 86. That clause is about members of school staff using reasonable force to prevent a pupil committing an offence, but the amendments would extend those powers to further education and sixth-form colleges. It is vitally important that colleges are able to operate in the same legal framework as schools, especially as more 14 to 16 year-olds are spending time in colleges. The recent estimate is that there are somewhere in the region of 120,000 doing so, but I believe that is shortly to go up to something like 400,000.
It is not clear whether Clause 86 as it stands includes sixth-formers. If so, we need to remember that there are more 16 to 18 year-olds in full-time study at FE and sixth-form colleges than at schools, so again college staff arguably need the same powers, although one hopes that the sixth-formers are not causing as much trouble as some of those lower down. It is not sustainable for two differing legal frameworks to be operating across the same age range, especially as many of these youngsters will be spending more time in institutions from both the school and college sectors.
There is a very recent precedent, which the Minister may choose to follow. The Violent Crime Reduction Bill currently before the House of Lords introduced a power for school staff to search their pupils for offensive weapons, but omitted colleges. My friend Lynne Featherstone in the other place persuaded the Government, through amendments tabled in Committee, that college staff should have identical powers to those proposed for schools. We were delighted that the Government agreed to that. I believe we might have some good news from the Minister on this occasion. Last week the Times carried an article which indicated that the Government were inclined to be generous on this occasion and to agree with this amendment. I look forward to hearing from the Minister.
Amendment No. 234 again refers to Clause 86, which enables staff to use such force as is reasonable to prevent the committing of an offence causing personal injury to another person or damage to property, or to maintain good order and discipline at the school. The third purpose for which force may be used is very broadly drafted and, as cited by the Joint Committee on Human Rights in its scrutiny of the Bill, may give rise to a risk of disproportionate useof force. Surprisingly, unlike existing legislation on physical restraint of pupils, the clause on the use of force does not refer to statutory guidance. That lack of guidance on the use of force seems to ignore developments in other sectors.
This year the Youth Justice Board published its Code of Practice on Managing the Behaviour of Children and Young People in the Secure Estate, which provides some concepts that could usefully be transferred into the school setting, and which place the use of force or restrictive physical interventions within the broader context of the establishment’s behaviour policy. In particular, the code states that agreed methods of physical restraint should be used only when absolutely necessary, by trained staff. The code of practice refers to other techniques that can be used to defuse or de-escalate incidents that may otherwise lead to the use of force, and requires the proper recording of each incident and the staff’s response to it.
Physical force may be imposed by members of staff who are not qualified and—since the definition of “staff” is so loosely drafted in Clause 82—by volunteers or others offering services on site if the head teacher so authorises, as was mentioned in our earlier discussion. Qualified teachers and teaching assistants receive training in disciplinary procedures and penalties, so are generally better able to understand and apply the concepts of proportionality and reasonableness. However, they do not receive training in the use of physical force. Other staff may receive no training whatever in this area. More worryingly, unpaid members of staff, volunteers and those delivering extended services are not under the control of, or answerable to, the school if mistakes are made.
The aim of the amendment is to tighten up the wording and ensure that only those who have received proper training in the use of physical force when working with children should be able to do so. Additional safeguards would limit that power to teaching staff and introduce clearer guidelines on the types of behaviour and situations that would warrant the use of force. We discussed these amendments a while back. What training would be available to teachers in the use of physical force, and what training would be available to others who work in schools and are given permission to use physical force?
Amendment No. 238 is a probing amendment aimed at defining “force”, since it involves the use of physical intervention or direct physical contact between a member of staff and a child, and is intended to physically overpower or restrict movement. The Minister in the other place—I think it was Jim Knight—helpfully clarified that when deciding whether to use force, or what sort of force to use, school staff will have to take account of all the relevant circumstances. Those will certainly include a pupil’s special educational needs or disability. In this respect the Minister was entirely correct in saying that there is no statutory guidance on the use of force. Schools already have guidance on the use of restrictive physical intervention for staff working with children and adults who display extreme behaviour in association with learning disabilities and autistic spectrum disorder—although, as we have been discussing, there are problems here too. There is separate guidance on the use of restrictive physical interventions for pupils with severe behavioural difficulty. However, these two sets of guidance are neither statutory nor well known in mainstream schools, which picks up the discussion we had earlier. Those with any knowledge of working with children with autism will know that, and it is imperative that mainstream schools also receive such guidance, especially on the avoidance and de-escalation of problems.
We are seeking clarification from the Minister on how guidance will be distributed to schools, whether it will be made statutory, and how the DfES will ensure that all schools act in accordance with it. For example, when staff use force, will they have good grounds for believing that immediate action is necessary to prevent significant injury to children or others or to prevent serious damage; that only the minimum force necessary to be effective should be used; that every effort should be made to secure the presence of other staff before applying restraint so that there are assistants or witnesses; that restraint should be relaxed as soon as it is safe to allow the child to regain control; and that restraint should be used as an act of care and control, and not as an act of punishment?
How do the Government define reasonable force, and how will they ensure that staff who resort to the use of physical interventions do so as a proportionate response to pupils' behaviour? Will Ofsted consider investigating the use of force in schools? Will the Government issue guidance to teachers on the use of force and ensure that it complements that already in use in residential schools?
Those issues have been raised with us by the National Autistic Society, TreeHouse and the Advisory Centre for Education. We would be very grateful if the Minister could give us some guidance on those issues. I beg to move.
I speak to Amendment No. 227. The noble Baroness, Lady Sharp, has covered most of the area that I wish to cover and I will echo what she has said.
Things have got to a pretty pass at the moment in schools. If you are assaulted by a pupil, you just have to stand there and take it. You dare not do anything, even if you have witnesses, that might lead to the student taking action against you afterwards. It is such a perilous business to be involved in. You risk losing your entire career—everything you have worked for and care about—on the word of a student against yours. It is not a risk that most teachers are prepared to take.
We have moved a long way since the schools of my childhood where the use of violence was a matter of routine. I would no more have dared thump a teacher than they would have hesitated to thump me. I think that the movement has been entirely in the right direction. However, we have allowed ourselves to get in a position where the use of violence by pupils has no effective answer, especially if pupils are fighting each other rather than attacking a teacher. We must move back, and I think that Clause 86 is a very constructive approach to doing it.
However, we have to ensure that we are putting teachers in a position where they have the confidence to use the powers that are given to them or set out in this clause. I think that that comes from clear and effective guidance so that teachers can know when they are in the right and when they are not. As the noble Baroness, Lady Sharp, said, there is a very effective system of guidance and rules for residential schools. It works well in situations where pupils are routinely violent. You have to be an absolute saint to work in some of those schools: you know that you are going to get hit, bitten or kicked every day—that is just the way the pupils are. That is not the way it is in most ordinary mainstream secondary schools, but none the less the same incidents can occur, and the methods that have been well proven in extreme situations ought to be transferred there so that the teachers can have the confidence to deal with these incidents when they occur, knowing that they are not putting their careers at risk.
Perhaps I may deal first with statutory protection for the use of force within further education colleges. I am glad to say that this is one of the numerous areas where the Liberal Democrats have persuaded us by the force of their arguments that we should amend the Bill. Having reflected on the amendments tabled by the noble Baroness, Lady Sharp, we believe that it is appropriate that colleges should have a parallel power to schools in this area. Although we cannot accept the precise amendments she has tabled, as that would create an anomalous reference to further education colleges within a part of the Bill dealing exclusively with school-related matters, government Amendment No. 255A, in my name in this group, broadens the current clause to cover students studying at further education colleges.
We are also, with the other amendments standing in my name, introducing into Part 9 a clause to be inserted into the Further and Higher Education Act 1992 which would extend the power to use reasonable force to further education institutions. This clause purposely mirrors the school clause in the Bill, Clause 86, thereby ensuring consistency of approach between schools and colleges. We have consulted institutions within the FE sector and representative bodies to establish the suitability and appropriateness of introducing a statutory power to enable the use of reasonable force in certain circumstances for those working in FE colleges, and all those consulted were in favour of such provision being introduced, particularly given the growing number of pupils of compulsory school age attending FE institutions under arrangements made by their schools—a point made by the noble Baroness, Lady Sharp. I stress, however, that this is an enabling power for colleges to use only if they wish. They will remain free to continue with existing arrangements; for example, using security staff or the police to deal with situations that might give rise to the use of force.
I turn to Amendment No. 227, tabled by the noble Lord, Lord Lucas, which seeks to ensure that the department issues guidance on the interpretation of this clause and specifies recording systems and procedures to be used following any such incident. The department's current guidance on the issue of force, in Circular 10/98, provides clear practical examples of situations in which the use of force might be necessary and the degrees of force that should be used. I am happy to send that to the noble Lord to fortify his summer reading. It contains a whole section on types of incidents where it might be appropriate to use force and sets out three broad categories where action is necessary: in self-defence or because there is an imminent risk of injury; where there is a developing risk of injury or significant damage to property; and—this is a crucial third area that relates to one of the concerns that he expressed—where a pupil is behaving in a way that is compromising good order and discipline. It gives a series of examples of where the use of force might well be appropriate in such cases.
The guidance also goes on—taking up the point raised by the noble Baroness, Lady Sharp—to define reasonable force. It begins by accepting that there is no single accepted legal definition of reasonable force, but it sets out two relevant considerations: that the use of force can be regarded as reasonable only if the circumstances of the particular incident warrant it; and that the degree of force employed must be in proportion to the circumstances of the incident and the seriousness of the behaviour or the consequences it is intended to prevent. Any force used should always be the minimum needed to achieve the desired results. The guidance then gives a set of practical considerations that should be taken into account and examples of the application of force and what would be appropriate. I hope that that meets the concerns raised by the noble Baroness.
The noble Lord, Lord Lucas, raises in his amendment the important issue of recording systems. It is important that we do not overburden staff by requiring them to record very minor or even trivial issues which may happen from time to time—for example, in early-years settings. However, there obviously needs to be proper recording of significant incidents and we will address that issue in revising the guidance, to which I referred, that we send to schools.
Amendment No. 234, in the name of the noble Baroness, Lady Sharp, provides that school staff will be able to use force only after having received appropriate training. School staff already have a statutory power to use reasonable force. Clause 86 re-enacts the current legislation with minor amendments, and I have already referred to the guidance we have in place in respect of it. We are not aware that this essential legislation has caused problems over the past eight years in which it has been in effect. Therefore, we believe that it would be disproportionate and impractical to require every school to give every member of staff who hasany responsibility for supervising pupils specialised training in physical intervention. We believe that head teachers and governors are in the best position to make professional judgments on the training needs of school staff, and schools are already well used to managing staff training.
Amendment No. 238, which also stands in the name of the noble Baroness, would statutorily define “force” as meaning restrictive physical intervention. Clause 86 stipulates that force must be used only as “reasonable in the circumstances”. This makes clear the expectation that staff will use only such forceas is reasonable, which means that it must be proportionate, taking account of the child’s individual needs. We are absolutely clear, and the guidance I cited a moment ago also states, that “reasonable in the circumstances” means that the force used should be the minimum required in both type and degree to achieve the objectives specified by the legislation.
I am grateful to the Minister. I am particularly grateful that he has acceded to our request for amendments in relation to further education colleges. The government amendments are a response to that. It is extremely useful for the college sector that this has been carried forward and that it knows where it is.
As regards Amendment No. 234, there is training in situ today and staff use it. However, one has to accept that the Bill introduces new powers for staff on physical restraint and therefore that there may need to be changes in the training delivered to staff. However, I will ponder this matter over the Recess, read what the Minister has said and think about it. The same goes for Amendment No. 238 on the concept of reasonable force. Both amendments pick up the same issue—that the goalposts have changed to some degree and that it is a new ball game. Teaching staff need to be reassured that if they are playing a new game, they know precisely what guidance is available. For the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 224 to 235 not moved.]
Clause 86 agreed to.
Clause 87 agreed to.
[Amendments Nos. 236 to 237A not moved.]
moved Amendment No. 237B:
After Clause 87, insert the following new clause—
“Well-being of homosexual pupils
The governing body and head teacher or principal of a maintained secondary school, academy, sixth form college, further education college, city technology college or city college for the technology of the arts shall have a duty to establish effective policies to prevent the bullying and ensure the safety and well-being of all pupils self-identifying as, or believed by others to be, homosexual, so helping to promote the fulfilment by every pupil of his educational potential.”
The noble Baroness said: Amendment No. 237B concerns the well-being of homosexual pupils. It is a sad fact that homophobic bullying causes permanent damage. It affects children and young people fromall backgrounds, regardless of their actual sexual orientation, and blights the schools and colleges where it takes place. It is not a small problem. One DfES survey in 2002, Bullying—don’t suffer in silence, found that 82 per cent of secondary school teachers said they were aware of verbal homophobic bullying and 26 per cent were aware of physical homophobic bullying. However, only 6 per cent of schools had anti-bullying policies that dealt specifically with homophobic bullying.
Having effective policies in place in individual schools to tackle bullying is critical. Ofsted has said that homophobic bullying is one of the most difficult forms to deal with, and yet it is often not properly addressed, if at all. Homophobic bullying in schools is a behaviour issue which has very serious effects on a minority of pupils. It frequently results in those who are bullied failing to achieve their full educational potential, which is one of the main objectives of this Bill, or their playing truant, self-harming or even in some particularly sad cases, committing suicide. Such victims may or may not actually be growing up gay or lesbian—they may merely be thought to be so by their fellow pupils.
It is not a matter of “political correctness”. It is an issue about pupil achievement, pupil behaviour, pupil well-being, and the right of parents to feel confident that their child will be safe in school. A school where such bullying is permitted to continue unchallenged is a school which is not safe for all its pupils, and where boys in particular usually feel the need to appear “macho” and are not likely to feel comfortable about being open about their emotions. Displays of threatening or violent behaviour are not uncommon, and this will not infrequently go hand in hand with an attitude that schoolwork is “uncool”. It will readily be seen that if most of those pupils are under-achieving because of the pressure of homophobic bullying, this will have a serious effect on that school’s academic achievements. It may also affect attendance and truancy rates.
Such bullying can take many forms. Most commonly it is verbal abuse in which a string of insulting words, jokes and anecdotes are levelled at the “target” pupil. In a recent report one victim said:
“I was never able to set off down a corridor at that school without expecting someone to say something unpleasant to me”.
To have this kind of abuse over several years at school can have appalling long-term effects on self-esteem. Even where the target of such abuse appears to have coped with the difficulty and survived, it is not unknown for them to develop severe depression in early adulthood and to take their own lives.
Not infrequently, verbal abuse can turn into physical attacks. Schoolwork is defaced, clothing ruined and victims are set upon, sometimes by several pupils, and beaten up. If such behaviour goes unchecked, it eventually leads to one adult murdering another. We hear not infrequently of such homophobic murders.
It is also difficult for a victim to lead the life of an ordinary teenager in these circumstances. “Ordinary” teenagers go to discos and parties and “go out with” people of the opposite sex. Gay and lesbian teenagers either pretend feelings that they do not have, which can lead to all kinds of complications, or hide themselves away and do not have a social life, especially in areas of the country where they do not have a support group where they can feel comfortable. Some even find themselves out on the street and homeless because of these problems.
Pupils are not the only people in schools to be both the targets and the perpetrators of homophobic bullying; it happens to and by staff as well. Pupils have reported insulting remarks made by teachers to individual pupils, sometimes in front of the whole class. Of course, pupils take their cue on behaviour from the adults in schools.
It should not be assumed that homophobic bullying is purely a secondary school phenomenon. Young children of primary school age readily pick up the verbal insults that they hear, and “gay” is a common playground insult in many primary schools. We do not believe that it is appropriate to engage children of primary age in teaching about homophobic sexual acts. However, they can perfectly well be led by teachers to understand that people of the same sex sometimes have loving relationships. These days it is by no means unknown for a child in a school to have “two mummies” or for a young child to be aware that an older brother or sister is gay. Certainly, primary school teachers could perfectly reasonably challenge inappropriate language.
Homophobic bullying will be most successfully challenged where there is leadership from the very top. This starts with central Government legislation. The repeal of Section 28 of the Local Government Act 1988 has been a highly important step, but to impose, as this proposed new clause does, a specific duty on governors and head teachers to safeguard the well-being of gay and lesbian pupils would send an important and welcome signal to all schools. The DfES has made some welcome forward steps, especially with the publication of the document, Stand Up For Us—challenging homophobia in schools. But no document, however well conceived, is a substitute for face-to-face in-service training and we need a lot more of that.
The requirement for Ofsted to report on how a school is promoting the five outcomes, including pupils being physically and mentally healthy, staying safe and being protected from harm and neglect, provides a ready-made opportunity for inspectors, too, to evaluate how schools are confronting homophobic bullying. If schools are aware of Ofsted’s interest in that area, that will be an important lever to improvement. The local education authority can give an important lead. But, at a school level, leadership must come from the top, from the head teacher, who then needs to convince the senior management of the school of the importance of the issue—not from a bleeding-heart liberal or politically correct perspective, but from one of improving pupil achievement and ensuring that all pupils are safe in schools.
School behaviour policies are developed by the whole staff working together and with the whole pupil body. The Minister has promised that he will bring forward an amendment to that effect at the next stage of the Bill. Schools are required to have anti-bullying policies, but alarmingly few to date make specific mention of homophobic bullying. It will be a huge step forward when every pupil is aware of where their school stands on the issue of homophobic bullying and that gay and lesbian people will not be disparaged any more than people from ethnic minorities are, rightly, not disparaged.
No one would pretend that we have yet won the battle with racism or with the bullying of disabled pupils in schools. But what has been done has been achieved by legislation. It is normal in the vast majority of schools for every pupil to understand that racism is regarded as quite unacceptable and thatthe bullying of children with disabilities is quite unacceptable. It should be clear to all pupils that homophobia and homophobic bullying of all kinds are equally unacceptable.
You cannot help your race, your colour, your disability or your sexual orientation. If legislation is required for those other factors that are a part of the person, then, in exactly the same way, we need this new clause in the Bill to ensure that, right from the start, as attitudes develop among young people, homophobia and homophobic bullying are just as unacceptable. I beg to move.
The amendment raises an important issue in that lesbian, gay and bisexual pupils need to be able to have support within their schools. Bullying is unacceptable towards any child and can have the most awful effects on their subsequent lives and the quality of their education. While we very much support the aims of the amendment, we are concerned that it may be seen as singling out a particular group.
Every child should be in a position to fulfilhis or her educational potential, regardless of their sexuality, religious, social or academic background, as the noble Baroness stated, and without the fear of being bullied. While we are not against and thoroughly support the amendment in principle, we are concerned that, although it is well intentioned, it singles out one group. In some instances, that could cause more problems than it solves.
This issue clearly needs serious attention and work. We support the principle, but I question whether statutory force is the right tool to deal with this extremely sensitive issue.
I shall make an unusual intervention in that I find myself in sympathy with what has been said by the Conservative Front Bench. I cannot say how strongly I support the noble Baroness, Lady Walmsley, in her intention. Homophobic bullying is nasty, sinister, and cruel and can have terrible results. Of that there is no doubt. But I strongly believe that we should all be concerned about the strategic issue of bullying, because bullying of vulnerable children of different sorts, as the noble Baroness stated so well at the end of her remarks, is unacceptable and can do terrible damage.
Her argument was persuasive in so far as she was saying that homophobic bullying was not getting the same level of attention as other forms of bullying. I wonder whether she should not consider withdrawing her amendment and coming back with one that emphasises again the strategic issue of bullying and illustrates different aspects of bullying, including the iniquitous nature of homophobic bullying. If we take that approach we will not inadvertently accentuate the problem.
Let me in turn destroy the credibility of the noble Lord, Lord Judd, by agreeing with him. He is exactly right—bullying comes in many forms. You can be bullied for being fat, thin, bright, thick, smart or not smart—anything. It does not happen just because of things that you are born with, which are inescapable, but ordinary personal characteristics and variations can make you liable to bullying.
However, the noble Baroness has a strong point in that schools are traditionally bad at eradicating some forms of bullying, where the victim displays characteristics that do not fit with the spirit of the school. If a school is traditionally sporty, the shy, retiring bookworm tends to get bullied and teachers tend to turn a blind eye, because that kid is not supporting the school in the way that it believes should be the case. That can be seen in all sorts of schools, whereby if someone does not fit in with the school as a whole, teachers can be less than supportive in dealing with the bullying that that child is enduring.
That must particularly be the case as regards homosexuality. It is hard to think of any school that makes a positive virtue of applauding homosexuality. Many schools, particularly those based on religious foundations, label that as a sin. So it is important that homophobic bullying should not go unnoticed and should be included in the matters to which a school must pay attention. However, as the noble Lord,Lord Judd, said, the problem is general. Not only homosexuals suffer in this way. Many thousands of children suffer—years and years after the Elton report showed schools how to deal with bullying. I remember that we tried as hard as this Government have to deal with it. I do not think that bullying can be eradicated, but we need to continue to make an effort to do so, as the noble Lord, Lord Judd, suggested.
I had not intended to intervene on this topic, but I want to mention two matters, prompted by the noble Lord, Lord Lucas. One issue that has been illustrated by this debate is the stereotyping that goes on—for example, the homophobic words that are used against bookworms or quiet pupils. The gay community includes some very macho young men, and we need to remember that inadvertently we use language that is difficult. That is an illustration.
When I worked for Childline, we undertook apiece of work on bullying. Two areas caused us considerable difficulty. One was ethnic bullying—and our report on that was one of our best sellers—and the other was homophobic bullying. Although, clearly, young people were distressed, the real difficulty was among teachers who were not homophobic, but who found it hard to find the language to deal with the issue. What we really need is good guidance and help for people in education.
I have noticed from listening to the debate how difficult it is for some people to talk about these issues. That is also true in schools. It is not easy for people who have come from fairly close communities to face the issue. I hope that we get good guidance. I should like to be able to support the noble Baroness, Lady Walmsley, in the hope that this amendment to the Bill would not exacerbate some of the issues, but I think that we would do better to look at the matter more broadly as a part of bullying and to get guidance for teachers to help with this very difficult issue.
The noble Baroness, Lady Howarth, has anticipated my remarks entirely. We intend to proceed by way of guidance and I shall say a little more about that in a moment. By way of introduction, we entirely agree with the noble Baroness and other speakers in this short debate. As my noble friend Lord Judd said, bullying in all its forms is one of the great evils that our schools have to confront, and we have a good deal further to go before we can claim to have confronted it successfully. We agree wholeheartedly with the intention behind the new clause proposed by the noble Baroness.
Schools have a well established duty of care to all their pupils. This is interpreted as a duty to take care of pupils in their charge, as a reasonably prudent parent would in like circumstances, including a duty to take positive steps to protect their well-being. A prudent parent would of course act to ensure that his or her child’s physical safety was secured and would take positive steps to protect his or her well-being, regardless of sexuality. That is exactly the duty that schools are under in respect of their pupils.
The bullying of homosexual pupils is rightly seen as a serious concern. Clause 82(1)(b) requires a head teacher to determine measures to be taken with a view to,
“encouraging good behaviour and respect for others on the part of pupils and, in particular, preventing all forms of bullying among pupils”—
that is in the Bill at the moment—
“in particular, preventing all forms of bullying among pupils”.
That provision means what it says. Head teachers must ensure that their school’s behaviour policy deals with all forms of bullying, including homophobic bullying and bullying relating to race, religion and culture, as well as cyber-bullying—an increasingly prevalent form of bullying, about which the Government issued guidelines only today.
We agree with many of the points made in the debate but we do not think that singling out one group in the Bill would be advantageous. We expect schools to take action against discrimination and bullying directed against any group, but we need to do more to help schools to turn good intentions and policies into practice. That is why my department is committed to providing comprehensive guidance on bullying that is driven by prejudice. We have already issued guidance on bullying related to race, religion and culture. This morning, as I said, we issued guidelines in respect of cyber-bullying, and that will be followed by guidance early next year on tackling homophobic bullying.
As well as advice on dealing with specific incidents, the guidance in respect of homophobic bullying will focus on prevention, including promoting a school environment in which homophobic bullying does not occur. We will consult widely on the preparation of this guidance with a view to establishing the broadest possible consensus and momentum for real change and improvements on the part of schools to meet the issues raised by the noble Baroness.
I thank the Minister for his response and all noble Lords for their comments. Why do we single out these victims of bullying? We do so because there is currently no corresponding framework of legislation, such as the Disability Discrimination Act or the Act on racial discrimination. Therefore, we felt that these victims of bullying required a little more help through an emphasis on their protection in legislation. The legislation that I mentioned has been successful in completely changing attitudes in society, and we would like to see the same sort of change relating to those who find themselves the victims of homophobia.
Why did we not address the issue as a whole and why did we pick out this kind of bullying? We did so because, as the Minister said, Clause 82 does it for us—it talks about bullying as a whole. We picked out these particular victims of bullying because of the need to make a positive statement about the approach that a good school will take to all pupils and because of the widespread nature of the problem and the lack of a legislative framework until now.
I am sure that if the amendment were agreed to, it would not make the problem worse. These things must be brought out into the open. Schools need to talk about them and to ask how they will approach such situations, making a positive statement. However, I was very pleased to hear what the Minister said about the consultation and the fact that the guidance will come out early next year—not before time. I know that the Minister is consulting many people who have a great deal of expertise and constructive thinking to offer in this field. But, if we had not pressed this matter, and if some of the organisations that are about to offer the noble Lord their wisdom had not pushed it, we might not have got as far as we have done in respect of the guidance to which the Minister referred.
Will the noble Baroness allow me to intervene? I was concerned about singling out this group because very often individuals are bullied because they have been perceived by others to have been given special treatment. We are not saying that that is what is intended by the amendment, but the reality is that pupils can be quite unpleasant to one another and can look for ways to be unpleasant. Most of us in the Chamber probably suffered in one way or another at some stage while at school. I certainly did, but I would not want to go into detail as to why. The problem often arises when a pupil is seen as being treated as special. That is perverse but it is real.
The noble Baroness has made a very thoughtful point and I see exactly what she means. But it is only when a whole school says, “These are our policies”, that that approach is thrown right out of the window, because then there is power in numbers. It needs the whole school community to stand up and say, “We will not tolerate this sort of behaviour”. That is why we feel that it is important that there is a specific set of policies to address the problems of these children.
No one can legislate to prevent children from being nasty to one another. It will happen and nothing that any of us in the Committee does will change that. I should like to see the whole school being consulted, talking about the problem, bringing it into the open and standing up as a body and saying, “No, we will not have this. It is not humane; it is not the sort of school we want to belong to”. If the children were involved in making such statements, this horror would be wiped off the face of British education, and not a moment before time. I thank the Minister and all noble Lords who have taken part in the debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 88 [Interpretation of Chapter 1]:
[Amendments Nos. 238 and 239 not moved.]
Clause 88 agreed to.
Clauses 89 and 90 agreed to.
Clause 91 [Parenting orders in case of exclusion or misbehaviour]:
moved Amendment No. 240:
Page 71, line 32, after “subsection” insert “and that this is not substantially due to the actions or omissions of the school”
The noble Lord said: I shall also speak to my other amendments in the group. Amendment No. 240 stands, to some extent, on its own. Essentially in that amendment I am saying that, where a court is asked to grant a parenting order, it should be able to do justice. On my reading of subsection (5), the court is able to take into account only the case for the prosecution—that is, it asks “Did the child do this?”—but it is not able to take into account any mitigating factors before making the parenting order.
As we have discussed recently, there are many occasions when the reason for the incident may relate to the school. The school may have been entirely unreasonable in dealing with a pupil with special educational needs, for instance, or something may have happened to give the pupil a strong case whereby, although the facts are as alleged, the underlying reasons should result in the court refusing to grant a parenting order. That is the sort of discretion that the court ought to be given. The court is the right forum, as it will be in possession of all the facts and arguments. It is capable of making a reasonable decision, which should not be biased in favour of the school and against the pupil in those—unusual, I suspect—cases, when the pupil has a real argument against the parenting order, other than on the grounds of the facts of the incident.
All the other amendments are concerned with the practicality of the rules surrounding parenting orders, as set out in the Bill. The obligations on the parent come into force immediately the pupil is excluded. That may be at lunchtime. A parent is supposed to drop whatever they are doing and rush back on pain of a fine and, presumably, a criminal record to deal with their child. That is entirely impracticable. There may be cases when some parents can do that, but you have to contact them in the first place. How the school is supposed to do it, I do not know, but there is no obligation on the school to contact the parent and nothing in the Bill saying that the parent has to be contacted before the punishments come into force. I cannot see how it is reasonable to ask a parent to assume these obligations earlier than the day after they receive notice that they should be subject to them.
In a practical sense, if you know that your child has been excluded from school, you can shift heaven and earth to make provision for them the next day. That is the most that should be required of a parent. With any lesser notice, the parent’s inability to give their employer proper notice that they cannot be in the next day will make their life difficult. It is hard enough when this happens because their child is ill. By and large, employers will then make some reasonable emotional allowance and not mark down their employees, although I have known many cases when that is not the case. But when the problem is seen to be the parent’s fault—because they are not controlling their child properly and their child is getting into trouble—and suddenly they cannot appear at work in the morning, leaving their colleagues in the lurch because their child has misbehaved at school the previous day, that will be extremely damaging to their employment prospects. Employment prospects are our concern; parents getting into that kind of trouble have enough difficulties in their life without being made unemployable as a result of things that are not within their immediate practical control.
The other aspect of the clause that I want to consider is the business of the pupil not being in a public place. To say that the child should be confined in a private place is to argue that they should be in their room with their television and Gameboy doing absolutely nothing constructive. I know that this is how we treat prisoners these days. We think that they should not be educated; they should just be stuck in front of the television 23 hours a day and not be part of the real world. But if you want to socialise a child and give the parent who has been dragged away from work to look after their child for three or four days a real opportunity to get the child back on the straight and narrow, you have to ensure that they can be out doing educational things. The parent wants to be with their child in museums, in the library and engaging in the sort of activities that will help to socialise and regulate the child. For the child to be stuck in their room is no answer. The minimal justification—as I read it in Clause 96(4)—states that it is a defence to show “reasonable justification”. I am not a lawyer, but my understanding is that that is extremely limiting in effect. For instance, on a day such as we had recently with temperatures in the high 30s, a parent who took their child into the communal gardens next to their flat would be guilty of an offence. That is ridiculous. I beg to move.
This group of amendments, among other things, includes reference to the decision of our Benches to oppose Clauses 96, 97, 98 and 99 standing part of the Bill. The clauses deal almost entirely with the exclusion of children, the giving of notice for excluded children, the issue of penalties for excluded children and the regulations that govern those penalties. I begin by saying that I very much appreciate and strongly support the amendments tabled by the noble Lord, Lord Lucas, who time and again in this Committee has brought an awareness of human life to bear on all kinds of legal aspects of the Bill. I want to say how much I feel that the Committee has benefited—as I have personally—from some of his remarks and insights.
I shall deal briefly with two aspects of this group of amendments concerning excluded children—by looking at the children and then at the parents, and at the things that characterise each of them. I begin by pleading with the Minister, who is an extremely conscientious and thoughtful Minister, to reconsider this part of the Bill. Anybody with experience of parents who have great difficulties holding their families together, who may have not just one child but several children, and who find it extremely difficult to cope—particularly single parents with the strains and pressures put on them—knows that such parents would find this legislation impossible to live by, however hard they tried.
I shall try to explain why I say that. I speak with some insight having myself been for some years a single parent. Of course, I was a far more advantaged single parent than most of those whom we are considering in society more generally. Also, in my children’s families, both parents have full-time jobs, which is a lesser version of the single parent family in terms of the extraordinary difficulties that will arise from trying to obey and live by the proposals in the Bill.
First I shall say a word about children. In 2003-04, 344,510 children were given periods of exclusion from school in England and Wales. Of those, 84 per cent were in secondary education. That tells us that the problems that parents have with children in secondary education are much more acute than those with children in primary education. A key reason is that teenage children are much more likely to defy and challenge their parents than younger children, who, by and large, can be expected to obey them. The typical exclusion is short—over 85 per cent are for five days or fewer—which is where these clauses bite, because in short exclusions there are difficulties in making alternative institutional provision for children.
Now let us look at the parents. In a recent study, 63 per cent of parents who will be affected by the Bill said that their children had been affected by bereavements, breakdowns and problems that arose in the family, and therefore it was not the school but some external factor that inspired the behaviour that led to the exclusion. Any of us who are aware of the impact on a child of the loss of a beloved parent or even a grandparent, or of how children react to deep disturbances in their families—not necessarily the break-up of the family but constant quarrels and parents shouting at one another, difficult neighbours and all the rest of it—will know that that is often reflected in children’s behaviour and it may not be a lasting or deep-seated problem but an acute one at that time. Most families pass through periods of great difficulty and emotional storm in relationships. According to research for the Office of the Deputy Prime Minister in 1996, eight out of 10 families evicted for anti-social behaviour—a deep disturbance for children—were headed by single parents. This Committee is aware of how commonly the multiple burdens borne by a family make it almost impossible for it to sustain itself and maintain calm and good order.
The Government have rightly gone a long way to encourage single parents back into work relatively rapidly after the birth of their youngest child. That means that many parents are clinging to often ill-paid, unattractive jobs with unconcerned employers of the kind to which the noble Lord, Lord Lucas, referred. Those parents are the most likely to lose their jobs if they fail to turn up or to explain why they have not turned up. As the noble Lord, Lord Lucas, said, if they have to respond to a notice on the same day, how do they begin to explain, even to a reasonably sympathetic employer, that they cannot come to clean the hospital ward or wash the dishes after the restaurant is closed? It is ludicrous to suppose that a parent who is already under stress as a result of an unruly child can somehow persuade an employer within a matter of hours to accept her reason for being away.
Much of this part of the Bill is simply not reasonable. I shall give another instance. As the noble Lord, Lord Lucas, has said, reasonable justification is defined in guidance to local authorities and schools. That guidance will depend, to some extent, on the local authority. But we already know that the reasonable justification of shopping is likely to be disallowed. It is one thing if shopping means going out to get the latest in bikinis because you are going to Spain on holiday next week; but if shopping means that you have run out of nappies for your younger child, that you have no milk for your middle child, that you cannot get to the shops or that it takes you time to get to the shops because you do not have a car, it is absurd to suppose that in those circumstances it is not a reasonable justification. Most of us in the Committee, especially those of us who are parents or grandparents, are acutely aware that that is a real justification in some circumstances, although it is clearly a ludicrous justification in others.
For all these reasons, I hope that the Minister will consider the points made in this short debate and bear in mind the extraordinary strains on single parents, be they mothers or fathers. Incidentally, they will be made more acute by the winding-up of the Child Support Agency, which means that in some cases we will be looking at families that have simply run out of money, and the money they are legitimately entitled to may take months to reach them now. On top of that is the pressure on single parents to go back to work. All these circumstances mean that the provision badly needs to be recast, taking into account what the noble Lord, Lord Lucas, said—with great respect to him, that is the bare minimum. One day’s notice to a parent that they have to be with an excluded child is an incredibly narrow period. I would have proposed three days’ notice, but since the Government say no days’ notice, then one day is not an unreasonable amount to ask for.
I plead with the Minister to look carefully at this group of amendments and at the clauses, whichplace unreasonable demands on some of the most desperately pressed of our fellow citizens.
We are not sufficiently imaginative about this group of children and their parents. The Prime Minister said that we should address not only crime but the causes of crime. Deep in the causes of crime are excluded children. They are the children who will almost certainly be the offenders of five or 10 years’ hence. We need to look more imaginatively at their plight. I ask the Minister to consider three—there may be many more—possibilities. First, how far community support officers could be brought in to assist families with secondary-age children, where the child is unwilling to accept the exclusion order and takes no notice of it. Some community support officers could be trained to deal with this situation to help the parent who is unable to cope. Incidentally, it would also be very good evidence of their inability to cope. A second area which we should certainly look at is parenting classes in dealing with difficult children, particularly teenagers.
Finally, and much more radically, one of the most distinguished chief education officers this country ever had, Sir Alec Clegg of the East Riding of Yorkshire, proposed a long time ago that many children at this age could be rescued through extra support, not only financial but emotional, involving such measures as “adoptive grandparents” and, in extreme cases, boarding provision. He said that this should be done before their almost inevitable detainment at young offender institutions and prisons, where for the rest of their lives they would be an expensive problem for a community to which they could no longer contribute. I support the amendment.
I sympathise with the amendment and the views of the two previous, eloquent speakers. For some parents, such an order would be not only punitive but potentially destructive and unhelpful. On the other hand, some parents would benefit immensely, as would their children, from having drawn to their attention the consequences of their children’s behaviour in the class and their relationships with the school.
I put it to the Minister that exclusion does not come unannounced. There should be some sort of trail or record to indicate those cases where parents have already paid little attention to overtures from the schools. For them it may well be the moment for firm action, but it should be possible to do otherwise for parents and families who would clearly not benefit.
It is with some diffidence that I follow the eloquent speakers, particularly the noble Baroness, Lady Williams, who have so clearly outlined the issues for these families.
I thank the Minister for his letter in response to the points that I raised with him in writing. This is the opportunity to pay tribute to how he so carefully pays attention to issues, responds to and discusses them. Therefore, it is always with sadness that I have to disagree fundamentally with him, as I do on this issue.
I remain unconvinced by the arguments in the Minister’s letter. The families I have dealt with—and I speak from experience of working with families—are deprived and come from our poorest communities. We have had a long debate this afternoon about children with a learning disability and their families. We have looked at them with sympathy and interest and at how we might help them. Yet these are the families to whom we are being punitive in these clauses.
Like the noble Lord, Lord Lucas, when thinking of this week and what we would be doing, I was struck by how I would have looked at this situation as a social worker. If a child had been locked in a room for a week in this heat, I suspect that I would have taken out a child protection order and removed that child from the home as needing safeguarding. Those are the kind of repercussions we need to look to. These are not families with several rooms and a garden; these are families who live on the sixth floor of a tenement block of flats where people are afraid to go out at night. These are mothers who, as has been said before but I repeat, are in jobs where they do not want to explain that they have difficulties. Indeed, many of them are ashamed that they cannot cope with their children. Others have simply given up all hope of being able to cope alone with a teenager who is already taller than them. They could not lock them in a room even if they wanted to.
I realise that police swoops have gathered in children with their parents—children who should have been in school but who had been on the street. I am grateful that they were with their parents on the street rather than elsewhere. That does not make it right. As the noble Baroness, Lady Williams, said, we need to be imaginative in thinking of alternatives.
When I was a young social worker, we had people called education welfare officers. They seem to be a lost breed. They were social workers who worked with the local authority and in education to ensure that, where children were missing school or were likely to be excluded—which picks up the point made by the noble Lord, Lord Sutherland—they would intervene earlier to carry out preventive work with those families. In the days when we did such work, often under the old Section 3 of the 1963 Act, we had some hope of changing children’s course.
I suspect that the Minister is under some pressure from his Government to ensure that the clauses remain in the Bill. With the noble Baroness, Lady Williams, I plead with him to think about it again, because I believe that it will punish families who are already punished time and again.
Any concerns raised by the noble Baroness, Lady Williams, such as those that she has raised here, merit my full consideration and I give her the undertaking that she sought. I will reflect fully on what she said. However, it is my duty to set out the Government's thinking behind the amendments so that she may reflect on what we have to say and, when we come to Report, we may further the debate. Of course, I take immensely seriously what was said by the noble Baroness, Lady Howarth, who also brings a great wealth of personal knowledge to this area.
I shall make three introductory remarks before I deal with the detail. First, from the remarks made by the noble Baroness, Lady Williams, there may be a belief that the policy was entered into lightly and without due consideration. I should emphasise that that is absolutely not the case. Many speakers in debates on earlier clauses made reference to the report on behaviour and discipline produced by the working group chaired by Sir Alan Steer. That was a group of practitioners of great knowledge, wisdom and length of service who were expert in the area. It produced a whole set of recommendations which we are seeking to take forward. It placed great emphasis on meeting the needs of individual children and ensuring that schools do that more effectively by training, support and so on. The recommendations that it made in this area are precisely what we are taking forward inthe Bill.
Paragraph 147 of the Steer report is headed, “Making Exclusions an Effective Sanction”. It states:
“We consider it important to ensure that exclusions are an effective sanction and are not seen as a ‘reward’ (time off school) but as a punishment. We also consider it important to ensure that excluded pupils are not wasting time and making a public nuisance of themselves”.
Anyone with any knowledge of the problems that schools face knows that excluded pupils at school gates and otherwise in the environment of schools is a very serious problem that schools must address.
With all due deference to the other views that have been expressed in this debate, we have been recently debating the issue of knives in schools. I say that because an incident is very much in my mind. The fatal stabbing of a pupil in a school in north London recently involved a pupil who had been excluded who was at the school gate. The issue of excluded pupils making, as Sir Alan Steer’s report says, a public nuisance of themselves, is real and one that we as a community must seek to address.
Sir Alan Steer’s report continues:
“Excluded pupils need to be supervised appropriately and continue to experience learning”.
At paragraph 148 it states:
“In a democratic society parents must have responsibility for their children”.
Let me emphasise that. I accept what the noble Baronesses, Lady Williams and Lady Howarth, said; of course parents can be expected to take responsibility for their children only to the limit of their capacity. I do not believe, however, that we should accept that that limit is necessarily short of being able to supervise their child at home for one or two days.
I appreciate the experience that the noble Baroness, Lady Howarth, brings to this, but I grew up in a community where many parents had to deal with very challenging situations. We do not properly recognise the responsibility that parents are capable of taking on. We assume that all parents who happen to be poor and have challenging lives are not capable of taking responsibility for their children when they are excluded for one or two days. Perhaps I should stress that 50 per cent of all temporary exclusions are for one or two days, and 26 per cent are simply for one day, so I implore the Committee to get this into perspective. In the great majority of cases covered by the amendments, we are talking about exclusions for one or two days, or at the outside three days, and saying to parents that they should take proper responsibility for their children and not as a matter of course regard it as acceptable that their children are unsupervised and not subject to proper parental discipline.
I, too, come from a tough working-class estate, and therefore absolutely agree about the many parents who come from poor and difficult backgrounds. I would not like it to be on the record that I had suggested that these parents could not take responsibility. There are, however, some parents with whom I have worked who are vulnerable. This is particularly true of single mothers who have a poor background and who have had educational difficulties themselves. All I am pleading for is help rather than punishment for that group of people.
I absolutely accept that, and I completely endorse what the noble Baroness says about the need for help and not simply punitive measures. May I, as a prelude, also point out two other important elements in the package of reforms before the Committee? A key part of this part of the Bill and the Steer report is that schools and local authorities should take responsibility for making provision for excluded pupils from the fifth day of exclusion. One of the things that I found most shocking about our existing pattern of provision when we were considering the Steer report and the measures that we should take was that, at present, local authorities and schools are responsible only from the 15th day. That means three whole weeks of exclusion from school when no public authority, be it a school or a local authority, has any responsibility whatever for making this provision.
Under the provisions, which I believe will come to be seen as bringing about extremely important changes, schools and local authorities—it is actually the local authorities who have the duty, but much of it will be exercised in conjunction with schools—now have responsibilities for making proper provision, including the kind of supported provision and education-related provision to which the noble Baroness, Lady Williams, referred, after the fifth day. That is a substantial improvement on the status quo. The issue that we then have to address is what we seek to do in the case of exclusions for fewer than five days.
We could simply have done nothing. That would have been perfectly possible, and we could have left the status quo to continue. We could have extended the duty of local authorities from the first or the second day; indeed, we gave that considerable consideration. Our conclusion was that there were serious practical issues in expecting schools and local authorities to make that provision for all excluded pupils, given that the numbers involved are very large; as I said, 50 per cent of all temporary exclusions are for just one or two days. We looked at this in some detail and decided on balance that the right course for those first few days of exclusion was to expect parents to make proper supervisory arrangements for pupils, but subject to the defence of reasonable justification when it came to their capacity to make that provision, which is there. I stress that the only statutory responsibility on pupils in the Bill is with regard to their appearance in public places. They have a defence of reasonable justification if it is claimed that they are not fulfilling their responsibilities.
In the letter dated 18 July on reasonable justification, which I sent to the noble Lord, Lord Lucas—I do not think I copied it to the Committee, but I am happy to do so after the sitting—we set out in some detail what we thought would and would not constitute reasonable justification. I shall quote from it because this has been raised by a number of speakers.
The noble Lord, Lord Lucas, gave the example of a parent who wanted to take their child out of doors possibly because of cramped surroundings or lack of a garden, a point raised by the noble Baroness, Lady Howarth. The offence is quite clear. The parent must ensure that their child is not present in a public place during school hours in the first five days of exclusion without a reasonable justification. The letter states:
“A justification which is capable of being reasonable will depend on points of fact and proof”.
We have prepared draft guidance to local authorities on reasonableness. The guidance explains that,
“authorities should not conclude that some justifications are automatically unreasonable. Some, such as a medical emergency, are probably more straightforward: hospital records, doctor’s certificates etc. will help in the consideration of an individual case. Other justifications, such as the pupil needing a haircut or shopping for clothes, are without more evidence unlikely to be reasonable, for these activities could readily be carried out at the weekend, after school hours or after the first few days on which the duty applied”.
Of course, those activities would be carried out at those times if the pupil was not excluded in the first place. The letter went on:
“However, every case should be considered on its merits and all relevant evidence provided taken into account”.
Taking account of what Sir Alan Steer said, the interpretation that we have set out in our responses to the points raised and the evident challenges that we face to see that pupils are properly provided for when they are excluded from school, the provisions in the Bill are reasonable. I hope that Members of the Committee are able to reflect on what I have said, just as I will reflect further on what the noble Baroness, Lady Williams, has said, in particular.
I made those general remarks because we were having a debate on these clauses standing part, but I shall turn now to the specific amendments. Amendment No. 240, in the name of the noble Lord, Lord Lucas, would amend Clause 91 to preventthe imposition of parenting orders where the misbehaviour of the child is substantially due to actions or omissions of the school. We do not accept that schools and local authorities will apply for a parenting order in cases where parenting is not a significant factor in the behaviour of the child, or without significant efforts having been made to investigate and resolve the issues prior to any consideration of compulsory measures. The approach is set out in guidance and we will seek to further emphasise these points in due course.
Amendments Nos. 243 and 245, also tabled by the noble Lord, Lord Lucas, would limit the scope of the offence of a child being in a public place by allowing excluded pupils to be in a public place during school hours for any reason, provided that they are accompanied by their parent or another authorised adult. As I have said, we believe that such an approach would render exclusion a less effective sanction. A significant proportion of truants found on truancy sweeps are in the company of an adult, and the presence of an adult or parent will not necessarily mean that the purpose of being in a public place is appropriate.
We understand the desire to ensure that parents are able to go about their business, but nothing in the clause prevents them doing so. I stress that the clause does not require parents to supervise their children personally. The clause provides for a defence that there is “reasonable justification” for excluded children to be in a public place, which should allow for emergencies, such as either the child or the parent requiring medical attention.
Amendment No. 244 would remove the five-day limit on a parent’s duty towards their children and enable the head teacher to have discretion to specify the days on which the duty is to apply. I have already partially explained the reason for the five-day limitin terms of the practicality of imposing such an extensive additional duty on schools and local authorities. On giving additional discretion to head teachers, it is important that any legislation which places a duty on an individual clearly defines the limits of that duty as well as the requirements. We therefore do not believe that we can support this amendment, nor Amendment No. 247, which would delay the start of the duty. It would mean that the requirement would not come into effect until the school day after the notice was given to or received by the parent.
Where a pupil is excluded from the school in the morning, the duty will arise in the afternoon of that day and notice will have to be given to the parent prior to the afternoon session. Of course, the notice has to be given before there is a requirement on the parents. If such notice is given, the period of parental responsibility will start as soon as the notice is given to the parent and not on the following day. However, I should stress that it is good practice at the moment when children are excluded in the course of the day for the parent to be notified immediately. Indeed, a school would not be acting responsibly if it did not seek to contact a parent or guardian at the point of exclusion if it is necessary for a pupil to be removed from school, not least because the duty of care for the school extends to ensuring that there are proper arrangements if pupils have to leave the school at very short notice. But, as I have said, here again we are subject to the defence of reasonable justification.
I hope that I have been able to set out the Government’s case on these issues and explain why we regard the duties we are imposing as a significant improvement to the current regime, which I stress again imposes no duties on anyone in respect of excluded pupils for the whole of the first 15 days of exclusion, and why we believe that these provisions—including the new duties on local authorities beyond the fifth day and those on parents not to allow their children without reasonable justification to be in public places during the first five days—represent a major step forward from the status quo.
Perhaps I may go back, first, to the remarks made by my noble friend Lord Sutherland about a track to this, which is the important element. Secondly, I should have thought that in normal cases, especially when the new arrangements for joint pupil referral units come into being, this would have been a normal part of the track. It is an impossibly difficult problem, but the points he made were apt. In addition, I want to say to the Minister only that these pupils are more of a problem for their parents than they are for the school. It is impossible for parents to control them and that is why we have to get to the root of the problem through the pupil referral unit.
I thank the Minister for what he had to say in response to this useful debate. I also pay particular credit to him for the fact that arrangements will now be in place from the fifth day. It is extremely important to ensure a continuing educational experience for young men and women who have got themselves into difficulties and have been excluded. It is a long step forward and one for which we on these Benches are very grateful.
An additional factor in any issue surrounding reasonable justification needs to be taken into account, and it is hoped well before the parent appears in court, because at that point it is already far too late. I refer of course to the issue of conflicting responsibilities for parents with several children. I believe strongly that parents should face their responsibilities—in my wilder moments I have thought sometimes that people should have, as it were, to marry again before they have more children or take on a ceremony of some kind in which their full responsibilities are brought before them. Having said that, there can be situations where a parent faces an acute conflict. A teenage son may say that he has been excluded and has been told to stay in his room. He is in a rebellious state and says that if the parent leaves the house, he will break the crockery. However, it is three in the afternoon and the younger child must be collected from nursery school. No one else can meet her. That sort of situation can arise again and again in a single-parent family. No father or, in some cases, no mother can be called upon, no grandparent is available or, indeed, anyone else. This illustrates the problem for a good, responsible and conscientious parent trying to tackle an acute conflict if they have more than one child. That may certainly be the situation in many cases. Younger children require more care, so even the good parent can be put into an extremely difficult position by the way the legislation is currently drawn up.
While I fully accept what the Minister has said and I will go away and think about it, I hope that he will consider this set of circumstances, which is very common.
I am grateful to the Minister for his answers, and I begin by saying how much I approve of the direction being taken by the Government. It is immensely helpful that they have shortened the period from 15 to five days. It is a reasonable and practical target for an education authority and a school to make alternative provision and to do it properly, because it is so important in respect of non-returning exclusions. It is perfectly reasonable that the onus for the first five days is placed on the parents because that is where the responsibility for children should lie. Yes, if there are problems with the parents, mechanisms ought to swing in to support them and help them fulfil their obligations.
However, where I differ from the Minister is that the solutions that the Government have arrived at are just not practical. I was trying to deal with two areas. The first is the period of notice that parents require to deal practically with their obligations. The method of telling a parent that a child has been excluded is governed by Section 572 of the Education Act 1996. That allows notice to be given by sending it in a pre-paid letter addressed to him at his residence. That letter might not arrive until two days after the period of criminal liability has started. If you are dealing with a lunch-time exclusion and someone is working as a bus driver, for example, what are they supposed to do? Get out of their bus at Charing Cross and take the tube home because a message has been sent?
I accept the case given by the noble Lord would be a reasonable justification. However, in many cases parents in receipt of a telephone call—we are not talking about two days of delay for a letterto arrive—would be perfectly capable of taking responsibility for their children at an hour or two’s notice. Although I accept the noble Lord’s case and believe that the Bill makes provision for it, he will probably accept that in many cases putting this responsibility on parents would be a perfectly appropriate thing to do.
Yes, but it can be extremely difficult to make alternative arrangements. It takes time to do so and that should be recognised. Also, there is no sense in which exclusion is a punishment for a seriously rebellious child. You cannot do anything with them that they would regard as a punishment. Being locked up in their room with their comics and television is not a serious punishment. Being made to trail around behind Mum may be. The idea that being out of a public place is more of a punishment than being in a public place properly supervised is not correct. It makes life extremely difficult for the conscientious parent and employee. They cannot even take their child to work and make them sit in the corner studying their books, which is a solution that might be allowed by reasonable employers to help out. They are not allowed to say, “Come on. You can come with me and help me wash the dishes or clean office”, or whatever else.
It is wrong to think that incarceration is the only form of punishment. The punishment is actually on the parents in this case. The people who will suffer are the parents, and the child will suffer because the parents are suffering. That is the mechanism being used. To inconvenience the parents sufficiently for them to want to discipline the child it is not necessary to tell the parent, “You go home and stay home for five days”, in order that the child should be properly disciplined.
For this provision to be workable we need a broad and reasonable interpretation of “reasonable justification”. That will only be based on whatever guidance the Government choose to provide, because the servants of the state in their great wisdom are fond of pettifogging interpretation of the rules. That may not be in every case, but we are all familiar with people who have been arrested for reading newspapers in Whitehall because that happens to contravene some aspect of the Anti-terrorism, Crime and Security Act 2001 in the interpretation of the police officers involved. That sort of thing goes on throughout the country in all sorts of petty and unreasonable ways and we do not want that applied to parents. We want a good solid set of guidance.
The difficulty at the core of my amendment is this business of not being in a public place because that is obstructing the proper treatment of the child and obstructing arrangements that might be made to use that period for education and reintegration for the child. It is an unhelpful interpretation.
Before the noble Lord withdraws the amendment, I want to say that it would be useful if the Minister were to share with the rest of the Committee the letters that he sent to the noble Baroness, Lady Howarth, giving his interpretation of these matters. It would be helpful to know what he said.
I shall certainly think on what the Minister has said. I shall read it in the course of the Recess—I have little else to do on these sunny days. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 91 agreed to.
Clauses 92 and 93 agreed to.
Clause 94 [Duty of local education authority in relation to excluded pupils]:
[Amendment No. 241 not moved.]
Clause 94 agreed to.
[Amendment No. 242 not moved.]
Clause 95 agreed to.
Clause 96 [Duty of parent in relation to excluded pupil]:
[Amendments Nos. 243 to 246 not moved.]
Clause 96 agreed to.
Clause 97 [Notice to parent relating to excluded pupil]:
[Amendments Nos. 247 and 248 not moved.]
Clause 97 agreed to.
Clauses 98 to 104 agreed to.
Schedule 11 [The Office for Standards in Education, Children’s Services and Skills]:
moved Amendment No. 248ZA:
Page 212, line 7, after “State” insert “one of whom must have knowledge and experience of post-16 learning”
The noble Baroness said: We now move to Part 8 of the Bill which deals with reforms to Ofsted and the new office which will be created. In moving Amendment No. 248ZA, I shall speak also to Amendment No. 248B. Both amendments concern the amalgamation of the Adult Learning Inspectorate, ALI, and Ofsted.
Broadly speaking, we welcome the proposed merger of Ofsted with the Adult Learning Inspectorate and the other inspectorates. This is intended to ensure that all issues concerning the welfare of children and young people are brought under the same umbrella, thereby creating a more joined-up approach. It is also part of the Government’s welcome ambition to reduce the number of bodies involved in the regulation of schools and colleges and the childcare sector, which is another important part of the reforms to the inspectorate.
There is support in the further education sector for the merger of ALI and Ofsted and it is seen as an important step in reducing the bureaucratic burden. However, the expertise and often helpful attitude demonstrated by the Adult Learning Inspectorate need to be preserved and the high degree of commitment it has shown to adult learning must be maintained. The two amendments seek to ensure that this is so by requiring in Schedule 11 that one of the members of the office must have knowledge and experience of post-16 learning. This is replicated in Amendment No. 248B, which, when inserted into Clause 112, would provide:
“One of the persons appointed to the staff of the Office under paragraph 6 of Schedule 11 is to be appointed as director of post-16 learning”.
Clause 112 creates the children’s rights director. Just as there is to be a children’s rights director as part of the new, larger Ofsted, there should also be a director of post-16 learning. The role of the children’s rights director was established under the Care Standards Act 2000, and what the Bill proposes is a continuation of that role. But the Bill provides a good opportunity to enshrine in law a new post to recognise the importance of post-16 learning within the new Ofsted structure. The amendments make the dual suggestion—there is one in the schedule and one in Clause 112—that we should recognise this new post and the person appointed to it. I beg to move.
I shall speak to Amendments Nos. 248ZAC and 248G. Amendment No. 248ZAC would create the role of an adult learning director in Ofsted to redress the balance after the abolition of the Adult Learning Inspectorate. The amendment was put forward by my honourable friend in another place, John Hayes MP. He raised the issue as a result of correspondence with the Institute of Directors, whose expectations for the future of adult learning are far from optimistic. In its experienced opinion, the Institute of Directors states that,
“it seems inevitable that, despite the Government’s protestations and soothing reassurances, the new inspectorate will concentrate on children and schools at the expense of adults”.
While the reasons for closing the Adult Learning Inspectorate were lacking, the Institute of Directors said that the operational benefits were unconvincing and the financial saving underwhelming.
The Minister in another place suggested that this amendment would not stand up to scrutiny as in his opinion, a head of schools and a head of adult learning would place a dividing line between the academic and the vocational. Aside from the obvious oversight that adult learning takes place in further education colleges and not schools, so the comparison is, to a certain extent, redundant, I suggest the very opposite. Surely the existence of a head of inspection for schools but no position for adult learning will create a division of attention in the inspectorate that all but ignores adult learning.
The Minister in another place stated that he wants pathways between the vocational and the academic. That is a laudable aim which would be fully supported by our amendment and would ensure that both the vocational and the academic would be equally represented within the inspectorate.
Can the noble Lord enlighten me about something that is related, but not directly, to the amendments? We have all got used to referring to Ofsted reports. What are we to call them in the future? Will we call them office reports? We certainly will not shorten the long title, which is Ofsecss.
I can assure the noble Lord that we will continue to refer to it as Ofsted, and the reports will be called Ofsted reports. There will be minimal change in that regard.
The amendment of the noble Baroness, Lady Sharp, seeks to ensure that a member of the new Ofsted board has knowledge and experience of post-16 learning. The primary criteria for board members are good corporate governance, experience and credibility. Board members will not be appointed as sectoral representatives. However, the Government will be looking to appoint board members witha range of expertise, skills and professional backgrounds, including some with direct experience of education, children’s services and skills and some from business and other walks of life so as best to fulfil the role of the board to provide strategic direction and effective corporate governance.
I hope that I can give similar reassurance on the amendments tabled by the noble Baroness, Lady Buscombe, on post-16 learning. In expanding Ofsted’s remit, the knowledge and experience built up by the Adult Learning Inspectorate will not be lost and, furthermore, we do not expect there to be any drive towards uniformity. Different sectors have different needs, different approaches will remain, and we shall expect these to be reflected in the new Ofsted arrangements. I hope that that gives the noble Baroness the reassurance that she is seeking.
I thank the Minister for his response, which we shall have to think about. I must say, with regard to his response to the change of name, that I cannot understand why the Government have bothered with all the preamble. Why not just leave it as Ofsted, if you are going to call it Ofsted? Education is a very broad word and covers many things. Why bother to say that we are going to make it the Office of Standards in Education, Children’s Services and so forth? Why not just leave it as the Office of Standards in Education? Then you do not have to bother having initials that say something else—you can just call it Ofsted.
As I say, my reaction is why bother with the preamble and changing the name—but I take account of the sensibilities of those in the social care sector.
On the director of adult services or post-16 learning, perhaps it is the same issue and there are sensibilities involved. This whole question of where adult learning is going is very important. We need to reflect on these matters, and may well bring them back at Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 248ZAA:
Page 212, line 25, leave out paragraph 5
The noble Baroness said: In moving Amendment No. 248ZAA, I shall also speak to Amendments Nos. 248ZAB and 248ZH. This cluster of amendments is intended to probe the precise strategy for the new Office for Standards in Education, Children’s Services and Skills, which I see will retain its former acronym, Ofsted—as we have already said.
Amendments Nos. 248ZAA and 248ZAB are probing amendments. It is not our intention to abolish the salary of the chairman and appointed members of Ofsted; neither is it our intention to abolish committees that may be set up. But in the absence of on-the-record information from the Minister in another place on the precise financial arrangements of Ofsted, I hope that the Minister will be able to shed light on these issues.
My honourable friend Nick Gibb MP asked in another place whether the Minister felt that the present arrangements lacked strategic direction. In response, the Minister said that he was,
“not here … to spell out those strategic directions”.—[Official Report, 11/5/06; col. 907.]
It seems to me that the answer to my honourable friend was, “Yes”—the department’s present arrangements for Ofsted do lack strategic direction.
It is right that Ofsted should function entirely independently; that is at the core of its great value for education in this country. There would be no point in having a government-run body to inspect schools and, by implication, the government education policy. Even so the department, which in the words of the Minister in another place has no strategic input into Ofsted, has implemented spending powers to be set by the Secretary of State and introduced new powers to create committees—all of which come with a generous civil servant pay and pension packet.
What the Minister in another place failed to answer was the point concerning the structural reconfiguration and the accountability of levels of remuneration. The regulatory impact assessment quotes the Government's policy on inspection of public services, which states that it,
“supports inspection where it can be demonstrated that the benefit outweighs the cost”.
But nowhere in the regulatory impact assessment is there mention of an advance audit of how effective Ofsted spending will be. The RIA states that at the time of publishing, cost estimates were based on an early assumption that,
“will be refined as the detail of the policy is developed”.
I hope the Minister can fill us in on the detail of that policy, how much it is set to cost the taxpayer and, crucially, whether it will affect the independence of Ofsted.
Further to the question of initial finances, there is also little to no incentive in the Bill for the office to keep costs in control. These expenses are easy to accumulate in hotel bills, travel and so on. My honourable friend in another place, Nadine Dorries MP, tabled an amendment that would have ensured that schools did not pay an unlimited fee for their own inspections. I should be grateful if the Minister could shed some light on what incentives exist or are planned to help the new office minimise costs. I am minded to await the Minister’s response today with the possibility of bringing back a revised version of the amendment in the light of information about Ofsted’s strategy.
The proposed inspectorate will incorporate a vast remit and not just in educational terms. It will stretch from nursery schools to adult education—also incorporating the children's services from the Commission for Social Care Inspection—to prison inspection work with juvenile estates. That is planned, I understand, to happen by 2008. That is a tight schedule. I fear that while these various different inspectorates jostle for their new roles under the Ofsted umbrella, roles will become confused and the vital component of our educational system, the head official body for holding schools to account, will suffer, resulting in literally immeasurable damage to standards in schools.
Amendment No. 248ZH injects a duty to promote high standards into the office, which, in its title, stands to represent standards in education, children’s services and skills. I was extremely surprised to note that such a priority was not already included in the Bill, and even more surprised to note the Minister’s rejection of the amendment in another place, stating that the amendment was at odds with the general purpose of Ofsted, although the regulatory impact assessment states:
“Inspection has a key role to play in the reform and improvement of public services”,
and—this is the most important thing of all, on which we have touched again and again, although maybe not enough in this Committee—
“helps to drive up standards”.
I should be interested to know which of those statements is true.
Why should not Ofsted focus on high standards? The key to the role of Ofsted must be to ensure that all schools are good. Both the White Paper and the RIA state repeatedly that,
“satisfactory is no longer good enough”.
The educational goalposts shift ever upwards. However, that aim, which I read to mean that all children must achieve their best, must be tested.
The Government’s policy is clear. Page 143 of the RIA states unequivocally:
“The Government challenges all schools to provide the best possible standards of education to all their pupils, so all children and young people can achieve their potential”.
Yet in another place the Minister rejected the amendment from my honourable friend, retabled as Amendment No. 248ZH today, which would make it a key statutory aim for the chief inspector to exercise his functions with a view to promoting high standards. That is the essential bridge between the statement of intent that we can find on the first page of the Bill in new Section 13A(l)(a), “promoting high standards”, and the realisation of the success or failure of that ambition. I beg to move.
I shall speak to the three amendments under my name in this group, Amendments Nos. 248ZAD, 248ZAE and 248ZAF. I have some residual concerns about the process proposed in this part of the Bill. These are probing amendments that I hope will bring clarification of what the consequences and achievements of such a part of the Act would be as it becomes an Act. What is the added value of the office being structured in this way? Is there a potential deficit? I stress also the points made in the previous speech about the importance of independence for Ofsted and clarity of purpose and governance. I suspect that these clauses of the Bill will add to neither independence nor clarity.
This measure could be expensive. Doubtless, as committees and sub-committees multiply, it will become more expensive because they all have to be fuelled and the expenses covered. Ofsted has happily moved ahead in its management arrangementsto include independent members of the senior management group within Ofsted. I think that these independent members have given considerable value and provided what this part of the Bill ideally sets out to provide. They have been a valuable addition and this model of governance has served Ofsted well.
As for additional value, could it be that weare to use the blessed words “accountable” and “accountability”? Those words usually appear at this stage in such a debate. Her Majesty's chief inspector is accountable. He or she is accountable to Parliament, and is rightly held to account by Parliament through, for example, the annual report, the Secretary of State and the Select Committees.All of those operate well and in a way that teststhe independence and clarity of vision of the inspectorate.
That is happening—accountability is there. If there be any doubt, there are more than 25,000 schools in England, each of which has a complement of teachers who regard it as a sacred duty to keep an eye on Ofsted. So there is an informal form of accountability. I believe that accountability is there and clear and should properly continue to be exercised by Parliament.
Is there then the risk of a deficit in these departures? I believe that there is, and I think that the risk is that the office, constituted as it is in the Bill, will perhaps raise issues about both the professional and independent judgment of the chief inspector and his or her colleagues.
What precisely is the office meant to add and what will it do? According to the Bill, it will “determine strategy”. The Government properly determine policy. If a body such as this determines strategy, what is left for the professionals in the organisation who have served us very well not only in exercising government policy and criticising it but also in determining the strategic ways in which it can be carried out? If such a body were excluded from determining strategy and perhaps reduced to advising, as my amendment suggests, I think that there would be a consequence which shows the danger in the proposals: mission drift. I think that that will happen anyway. I think that the body in question will suddenly find that it sits in a position where it can ask more questions—I am tempted to say “X” fool questions—than it reasonably should, and that will provide a bad air to efficient organisation within Ofsted.
There will be a layer of bureaucracy between the inspectorate and the exercise of its judgment in practical ways. Does it have to go back to the body in question—in monthly meetings, six-weekly meetings, three-monthly meetings? Does the chief inspector have to go back to that body before making sometimes very urgent practical decisions to ensure that it is in line with strategy and strategic priorities as set out in the mind of the office?
My view is that this element of the Bill will at best add little to the activities of Ofsted. As it stands, however, it could confuse the lines of accountability and the professional responsibilities of the inspectorate and the chief inspector by adding another line of accountability. I know that the schedule spells out in some detail who does what, but I do not think that it adds up to a clear line of responsibility or a clear line of accountability. For example, the office can make appointments but only through the action of the chief inspector. That seems rather convoluted, and there is a series of similar examples in the Bill.
I would ultimately wish that these clauses be excised, but I suspect that that is too much to hope for. However, if they are to remain, I hope that they can be modified to make plain where independence, professional judgment and accountability lie, which is quite clearly with Parliament rather than, effectively, a quango.
I have three amendments standing in my name in this group: Amendments Nos. 248D and 248E, to which I wish to speak, and Amendment No. 251A, which I shall not speak to or move.
We have tabled Amendments Nos. 248D and 248E on behalf of the Local Government Association. They relate to Clause 130, on reviews of local education authorities. The LGA is putting forward these amendments to give the chief inspector a power rather than a duty to review and rate the overall performance of each local authority every year.
The LGA sees the creation of a single inspectorate for children as an important step forward as it reflects the focus on the child rather than the institutions providing services. However, the LGA is concerned about the proposal to require the chief inspector to review the overall performance of each local authority every year and to award a performance rating. Whileit is adamant that inspection of direct services to children, and children in situations where they are most vulnerable—for example, children’s homes, schools and so forth—must continue, it nevertheless believes that the complete review of each local authority every year is not the best or, indeed, the only means of encouraging local partnerships to improve. To review only the local authority misunderstands the multi-agency and interdisciplinary approaches required to ensure that outcomes and the well-being of children are being well provided.
The landscape of children’s services has changed significantly, even in the short time in which children’s services inspections have been formally under way. The LGA and the IDA have proposed that the new local performance framework to replace CPA should be consistent with the way localities are governed and focus on improvement rather than compliance. They would like to see an annual assessment at the heart of a new framework undertaken by local authorities and their partners. This would draw on a robust evidence base, including the inspections carried out by the new inspectorate, so they would expect that inspection and assessment of services for vulnerable children would continue to be important. The results of these inspections would be used by local authorities and their partners in their own annual assessments but they do not want to see the new single inspectorate required to carry out an annual review of the local authority’s performance in isolation or to give authorities a performance rating. This reflects the current CPA framework, and they do not think that the legal basis for the new inspectorate should prescribe existing inspection methodology for the future.
Amendment No. 248ZAA, in the name of the noble Baroness, Lady Buscombe, concerns paragraph 5 to Schedule 11. I stress that these remuneration and salary arrangements for members of the office are common to any public organisation with a non-executive board. They are not unusual and replicate those made in other equivalent cases. It is only right that members of the non-executive board are financially compensated for their services through a remuneration package, the payment of allowances and pensions. Removal of this provision would limit the ability to recruit members of sufficient expertise.
The noble Baroness asked what pressure there would be on the new Ofsted to contain costs. There is a requirement on the office in that regard under Clause 108(1)(c) and Clause 109(1)(c). Clause 109(1)(c ) states:
“The Office is to perform its functions for the general purpose of encouraging…(c) the efficient and effective use of resources in the carrying”,
out of its duties. The savings that we expect to be realised by bringing together all these inspectorates are set out in the regulatory impact assessment, which states in paragraph 20.29 that while there willbe transitional costs of around £13.5 million to£19.7 million, there is an expectation of annual savings of £6.4 million, which means that there is an implied payback period, once cumulative savings have covered any transitional costs, of between two years, nine months and three years, eight months. I should stress that the Government agree with Ofsted and will agree with it in future regarding the cost envelope in which that has to be conducted. That is an absolute cash limit which imposes significant discipline on Ofsted and will continue to do so.
On Amendment No. 248ZAB, paragraph 7 to Schedule 11 is a standard provision, giving the non-executive board flexibility to establish whatever committees and sub-committees it chooses. There is nothing unusual in that respect. As my honourable friend said in another place, at the moment we do not know what pattern of committees and sub-committees the office will choose to establish and we regard that as beyond our remit to determine. The office should be free to determine those matters itself.
The noble Lord, Lord Sutherland, spoke to Amendments Nos. 248ZAD, 248ZAE and 248ZAF with all the authority of a former chief inspector. I appreciate the points that he made. He was the first head of Ofsted and established it as one of our most successful inspectorates over the past 15 years, if one looks at the results in terms of higher school standards and the increased accountability in the schools system. However, I think that the noble Lord would accept that our proposed model of a non-executive board is not unusual. Indeed, it is much more common for organisations of this kind than that which has been in place for Ofsted.
The present chief inspector, Maurice Smith, and his predecessor, David Bell, who is now Permanent Secretary in my department, met noble Lords a fortnight ago to look at these provisions. Both expressed satisfaction with the current provisions and they believed that the demarcation of responsibilities between the proposed non-executive board and the chief inspector are appropriate to the task and did not raise concerns.
I should emphasise that the Bill provides the board with no powers to overrule the chief inspector on any matter concerning his inspection and regulatory functions. It places those powers and duties firmly and unambiguously on the chief inspector. So, the independence of the chief inspector to report onthe findings from any inspection and to advise the Secretary of State as he or she sees fit are firmly enshrined in Clause 110. As in the time of the noble Lord, Lord Sutherland, as chief inspector, the new Ofsted will be a non-ministerial government department, emphasising that it will continue to have the same status and independence as today. Her Majesty’s chief inspector will continue to be appointed by Her Majesty in Council, which is a further significant guarantee of the inspectorate’s independence.
The noble Lord raised issues relating to the relationship and accountability between the chief inspector and the board. I believe that they are fairly set out. But one of the pertinent points raised by Maurice Smith and David Bell in their meeting with noble Lords was that, at the moment, Her Majesty’s chief inspector’s accountability for his performance is to the Secretary of State in my department, with whom the chief inspector has an annual meeting that determines performance bonuses and issues of that kind. Those who wish to safeguard the independence of Ofsted would agree that being accountable to the board will be a more substantial safeguard of the independence of the chief inspector than is the case at present, because there is no board to the Department for Education and Skills through the Permanent Secretary.
Amendment No. 248ZH, in the name of the noble Baroness, Lady Buscombe, seeks to ensure that the chief inspector exercises his functions with a view to promoting higher standards. I am pleased to tell her that the inspection remits under which the chief inspector works will continue to be agreed with the Secretary of State, as now, and they will give primacy to the promotion of higher standards—so there will be no change in that regard.
Amendments Nos. 248D and 248E were spoken to by the noble Baroness, Lady Sharp, and tabled at the instigation of the Local Government Association. At present, a local authority’s performance rating for its children’s services functions is arrived at by Ofsted and CSCI discussing and agreeing a rating constructed of two parts: for education and for children’s social care. Clause 130 provides for a single performance rating to be awarded by the chief inspector following the transfer of functions.
The Government believe, first, that tracking year-on-year progress is a key element in driving up performance and, secondly, that providing an overall rating enhances local accountability by providing local communities with a simple measure of their council’s performance. Those provisions are in the Bill but I should be very happy to discuss the matter further with the noble Baroness if that would be helpful.
I thank the Minister for his response to my amendments. I was content with his replies to both my Amendments Nos. 248ZAA and 248ZAB. I am much reassured by what he said on the need to prioritise the promotion of higher standards in all our schools and that that will receive primacy under my Amendment No. 248ZH. On that note, I have pleasure in begging leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 248ZAB not moved.]
Schedule 11 agreed to.
Clauses 105 and 106 agreed to.
[Amendment No. 248ZAC not moved.]
Clause 107 agreed to.
Schedule 12 agreed to.
Clause 108 [Functions of the Office]:
[Amendments Nos. 248ZAD to 248ZAF not moved.]
moved Amendment No. 248ZB:
Page 83, line 4, at end insert “; and
( ) to safeguard and promote the best interests of the child”
The noble Baroness said: We are reaching the home straight. I shall speak also to the rest of the amendments standing in my name in this group. I should also mention that, although my name has not been added to Amendment No. 248CA, I support the spirit of what the noble Earl, Lord Listowel, seeks to do. I know that he is not very well today and I wish him well. The noble Baroness, Lady Howarth, will be speaking to that amendment.
Amendment No. 248ZB would add to the functions of the office of the chief inspector the duty to safeguard and promote the best interests of the child. Of course, any organisation providing services to, or inspecting services for, children should have such a duty to safeguard and promote the welfare of children. Although we welcome the provisions in the Bill which state that in performing its functions the office has to have regard to the need to safeguard and promote the rights and welfare of children, we feel that this should be included in the functions of the office rather than in the performance of the office’s functions. Perhaps we can hear angels dancing on the heads of pins at the moment but that is where we would prefer to see that provision.
Amendment No. 248ZC is another “voice of the child” amendment. It would ensure that the office—I cannot get used to calling it “the office”; I have a picture in my mind of television soap operas—in performing its functions, took account of the views expressed by children. That is an honourable duty. The Minister has been kind enough to accept it in other respects and I hope that he will also look kindly on the idea in this regard.
Amendment No. 248ZD would insert definitions of “rights” and “well-being”. We welcome the office’s functions with regard to the need to safeguard and promote the rights and welfare of children. However, for the sake of clarity, we would hope that the definition of rights as set out in the UN Convention on the Rights of the Child and the Human Rights Act 1998, and the definition of “well-being” in the Children Act 2004, could be added to Clause 109(4), as no one would then be in any doubt about what we mean by those things.
Amendment No. 248ZG would insert the definition of “well-being” into Clause 110 regarding the functions of the chief inspector and his duty to keep the Secretary of State informed about improvements in well-being.
Amendments Nos. 248ZE and 248ZF have been suggested to us by the NSPCC, which believes that a function of the chief inspector should be to keep the Secretary of State informed about the quality of improvements in outcomes achieved by children in receipt of social services. The wording of the Bill relates to Ofsted’s current inspection methodology, which has a very prescriptive, standards-based approach, lacking in user-focused outcomes, in the opinion of some. A reference to improving outcomes and well-being, as set out in the Every Child Matters Change for Children programme is essential to ensure that the focus on children and young people is maintained, and in particular, the focus on the most vulnerable children and young people for whom inspection arguably plays an even more important role.
Amendment No. 248C puts a duty on the Children’s Rights Director to co-operate with the Children’s Commissioner for England. Those two roles are complementary and a duty to co-operate would formalise the current effective working relations.
Amendment No. 248A was suggested to us by the Commission for Racial Equality. It states that in the performance of the chief inspector’s functions, he,
“shall ensure that inspections and all his other functions are carried out with regard to race equality and in particular the general statutory duty”.
Although Ofsted is currently subject to the general and specific duties, it is taking an increasingly narrow view of its obligations under the Race Relations Act. Ofsted sees its function of reporting to the Secretary of State as discretionary when patterns of inequality emerge in relation to compliance with specific or general duties. Patterns of inequality can include differential or disproportionate rates of exclusion, significant differentials in levels of attainment, disproportionate or differential rates of admission failures, admission patterns or in individual inspection reports. It is difficult to see how such patterns will emerge, given that Ofsted has stated that it sees any analysis of self-evaluation form data for such trends as being outside its current statutory duties and legal obligations. These self-evaluation form data are collated by individual schools.
Ofsted has said that its new brief reports, which we all welcome, cannot hope to cover all of the school’s statutory duties. That approach means that it is increasingly likely that schools inspection reports will not assess the extent to which schools are promoting race equality and good race relations. Ofsted currently interprets its responsibilities under the race equality duty so narrowly that it gives it wide discretion as to when and how, or even if it will inspect, assess and report on race equality compliance and outcomes. This is a particular concern, given that the newly enlarged Ofsted is taking over the functions of other inspectorates, some of which currently interpret their responsibilities more broadly, such as the Adult Learning Inspectorate which looks specifically at equality of opportunity as a distinct section. It seems that we have the marrying of organisations that take a somewhat different approach to this issue.
To be able to deliver the objectives of the Government’s wide strategy, the Commission for Racial Equality tells us that it believes there is a need for a clear requirement written into the Bill that obliges Ofsted to ensure that its inspection, assessment and reporting functions are carried out with regard to the race equality duties. That would limit its discretion and remove the possibility of continuing inequalities and outcomes in education, and so on. On top of that, the clause would help the Government to fulfil their IOSS commitment to increasing race equality and community cohesion. It will certainly help them to honour their commitment of placing a duty on all schools to promote social inclusion and community cohesion.
The last of my amendments in this group is Amendment No. 248F, which requires the chief inspector to have particular regard to safeguard and promote the welfare of children, ensure co-operation arrangements are in place to improve their well-being and promote the best interests of children as per the UN Convention on the Rights of the Child for children who are detained in secure training centres, local authority secure children’s homes and youth offending institutions, or who are in the process of being adopted or fostered. Children in these settings are especially vulnerable, and we believe that Her Majesty’s chief inspector should have particular regard to their needs. I beg to move.
I shall speak to Amendment No. 248CA, which would have been spoken to by my noble friend Lord Listowel, but, as the noble Baroness, Lady Walmsley, mentioned,he is unwell. I would have put my name to this amendment, but I was uncertain whether I would be here when we reached this point. I shall also speak briefly to other amendments in this group.
My noble friend Lord Listowel secured a debate in this House on 13 October last year on the joint chief inspectors’ report, Safeguarding Children. During that debate, I said that I was not convinced that the protection of vulnerable children would not be put at risk as a result of the proposals to take responsibility for children’s social care out of the Commission for Social Care Inspection and put it into Ofsted, as proposed in the Bill. In response, the noble Lord, Lord Adonis, arranged for me to meet the chief inspector of Ofsted in order to be persuaded of its commitment to children’s social care. I met the inspector and received some reassurance, and I think that we are now on the way to that end. Together with others, I will do what I can to make sure that the end is positive.
However, Amendment No. 248CA is very simple to accede to, and I hope the Minister will look at it positively. The joint chief inspectors’ excellent report, Safeguarding Children, is a precedent and an example, so I am not suggesting something new. It seems vitally important to continue that activity, which sets a benchmark regarding safeguarding arrangements, in particular for disabled children, children living away from home and children in health and secure settings. That links neatly with the points being made by the noble Baroness, Lady Walmsley, about ensuring that we know where we are in relation to those children.
By placing a duty on Ofsted to report on safeguarding children at least once every three years—which is not an onerous task—the new inspectorate will have a clear responsibility to ensure that safeguarding children issues are clearly part of its remit. It will reassure this Committee and the children’s social care community that Ofsted is serious about looked-after and vulnerable children. This duty is not intended to bind the hands of Ofsted, but will demonstrate a clear commitment to some of the most vulnerable children in our society and to working together, because Safeguarding Children shows the partnership with many other inspectorates. I look forward to the Minister’s consideration.
I shall briefly mention Amendment No. 248C, which states:
“The Children’s Rights Director has a duty to co-operate with the Children’s Commissioner for England”.
I hope that would be a mutual duty to co-operate, rather than one with another, recognising that the duties of the children’s rights director are different from those of the commissioner and that he has to carry them out in his own right within Ofsted.
In respect of Amendment No. 248F, I hope that particular co-operation will develop between the Adult Learning Inspectorate end of the new super inspector and whatever emerges by way of inspection in prisons. Education in prisons is a lost soul, despite all the efforts of this Government and previous Governments. The expertise and experience that will be incorporated in this new inspectorate would find a strong place alongside a professional prisons inspectorate.
I am glad I can offer the noble Baroness, Lady Howarth, the assurances she seeks on Amendment No. 248CA. As she rightly said, the report conducted by the joint chief inspectors on safeguarding was an immensely valuable document, not only because of its focus on safeguarding, but also because of its collaborative nature, commenting on safeguarding across inspectorate remits. We are happy to confirm that this report will continue and that we will agree with the new Ofsted a basis on which that will take place.
Amendment No. 248ZB was moved by the noble Baroness, Lady Walmsley. The Government are absolutely clear that safeguarding children is an important part of Ofsted's new remit. Therefore, Clause 109 contains a list of factors for the board to have regard to in performing its functions, including,
“the need to safeguard and promote the rights and welfare of children”.
That is a major factor.
The noble Baroness referred to the functions of the office, as set out in Clause 108. It should determine the strategic priorities and set strategic objectives and targets for the chief inspector, and subsequently to hold her to those. They are distinct from the factors that the office must take into account when establishing what those priorities will be. So we do not think that it is suitable for safeguarding children to be one of the office's functions in Clause 108. But it is precisely because of the importance that we attach to safeguarding the rights and welfare of children that Clause 109 refers to them as it does.
On Amendment No. 248ZC, of course it is essential that the views of children are listened to by the new Ofsted. We can offer firm reassurance that this will continue. In particular, subsection (4) of Clause 109 defines relevant persons as,
“persons for whose benefit they are carried on”.
That covers all users of services including children, and will be taken to be so by the new Ofsted.
On Amendment No. 248ZD, in performing its functions under Clause 109, we fully expect the office to satisfy itself that it is operating to the most suitable definitions of rights. We have every confidence that, in doing so, rights will include, so far as is relevant, rights under the United Nations Convention on the Rights of the Child, as well as the Human Rights Act, and those that may otherwise be conferred on children through other legislation.
In considering the welfare of children, the office would of course look to the Children Act definition of well-being, but also more broadly. The Children Act outcomes are highly relevant, given that they guide how HMCI will conduct her inspection functions on children.
We fully understand the noble Baroness's desire, also through Amendments Nos. 248ZE, 248ZF and 248ZG, for HMCI to keep the Secretary of State informed about improvements in well-being for children. I can assure her that the use of the word “standards” in this context does not relate solely to educational standards. We expect the chief inspector to comment as relevant on the well-being and outcomes for all users of services inspected. Where services for children are being discussed, the Children Act outcomes and well-being will of course be central to such reporting.
Turning to Amendment No. 248A, I should make it clear that Ofsted is committed to race equality and the important role inspection plays in assessing and reporting on educational performance and outcomes for children from all backgrounds. This commitment will be extended across its expanded statutory remit. Ofsted, as a non-ministerial government department and a specified public authority, already has a duty in carrying out its functions to have regard to race relations, including promoting equality of opportunity under the Race Relations Act. We believe that the amendment simply seeks to restate existing legislation.
The noble Lord, Lord Lucas, referred to Amendment No. 248F. Clause 111(3)(a) requires the chief inspector to have regard to the need to safeguard and promote the rights and welfare of children. This duty applies to all HMCI's functions, not just those covering secure training centres and adoption and fostering services. We believe that that requirement is met. For this reason, the new clause is not necessary.
Finally, the noble Baroness referred to Amendment No. 248C on the Children's Rights Director. He undertakes a valuable function for the most vulnerable children, which is why his role is being transferred to the new Ofsted. The Children's Commissioner's remit extends to all children. The two roles are clearly complementary but each has different and separate functions.
We understand that relations between the two postholders are good, and, indeed, a joint concordat between the two has been published, setting out how they will work together, which we take to be a very welcome sign that the collaboration which the noble Baroness seeks is taking place.
Before the noble Lord, Lord Lucas, takes us into the very last furlong, I thankthe Minister for all his reassurances about the amendments, which are very well received on these Benches. I have only one little quibble, which concerns the lead amendment, Amendment No. 248ZB. We should have thought that safeguarding children was a strategic target; that is why we felt that it should be where we put it in the amendment, rather than just in the functions. However, apart from that little quibble, I am delighted with the reassurances that the Minister has given us and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 108 agreed to.
Clause 109 [Performance of Office's functions]:
[Amendments Nos. 248ZC and 248ZD not moved.]
Clause 109 agreed to.
Clause 110 [Functions of the Chief Inspector]:
[Amendments Nos. 248ZE to 248ZG not moved.]
Clause 110 agreed to.
Clause 111 [Performance of Chief Inspector's functions]:
[Amendment No. 248ZH not moved.]
Clause 111 agreed to.
[Amendment No. 248A not moved.]
Clause 112 [Children's Rights Director]:
[Amendments Nos. 248B and 248C not moved.]
Clause 112 agreed to.
Clause 113 [Annual and other reports to the Secretary of State]:
[Amendment No. 248CA not moved.]
Clause 113 agreed to.
Clauses 114 to 129 agreed to.
Clause 130 [Annual reviews of local authorities in England]:
[Amendments Nos. 248D and 248E not moved.]
Clause 130 agreed to.
Clauses 131 to 139 agreed to.
[Amendment No. 248F not moved.]
Clauses 140 and 141 agreed to.
Schedule 13 agreed to.
Clauses 142 to 148 agreed to.
Schedule 14 [Minor and consequential amendments relating to Part 8]:
[Amendment No. 248G not moved.]
moved Amendments Nos. 249 to 251:
Page 232, line 24, at end insert—
“For section 96 substitute—
“96 Additional functions
(1) The Assembly shall have such additional functions in relation to the provision of Welsh local authority social services as—
(a) correspond to functions within subsection (2), and
(b) are specified by the Assembly in regulations.
(2) The functions within this subsection are—
(a) functions conferred on the CSCI by or under this Act, and
(b) functions relating to the provision of relevant services and assigned to Her Majesty's Chief Inspector of Education, Children's Services and Skills under section 110(4) of the Education and Inspections Act 2006.
(3) In subsection (2)(b) “relevant services” means services which immediately before the coming into force of Chapter 4 of Part 8 of the Education and Inspections Act 2006 were English local authority social services for the purposes of this Part of this Act.””
Page 233, line 9, at end insert—
“In section 133(1)(a) (failure in discharge of functions: CSCI) omit “or the Children Act 1989 (c. 41)”.”
Page 234, line 41, at end insert—
“In section 61 (report of inspections) omit subsection (4)”
On Question, amendments agreed to.
Schedule 14, as amended, agreed to.
Clause 149 agreed to.
Schedule 15 agreed to.
Clause 150 agreed to.
Clause 151 [Power of Chief Inspector to investigate complaints by parents about schools]:
[Amendment No. 251A not moved.]
Clause 151 agreed to.
Clause 152 agreed to.
Schedule 16 [Powers to facilitate innovation]:
moved Amendment No. 252:
Page 239, line 16, at end insert—
“( ) In subsection (1)(a), leave out “in the opinion of the Secretary of State,”.
( ) In subsection (2), leave out “England or Wales, the Secretary of State or” and insert “Wales,”.
( ) After subsection (2) insert—
“(2A) The Secretary of State shall not permit any project unless its outcomes will be properly assessed and published.””
The noble Lord said: I shall deal with the smaller amendments in the group first. Amendment No. 256 is a misunderstanding, and I shall not speak to it. On Amendment No. 257, I simply ask why. What are the lines that the amendment would leave out doing in the Bill? What evil are they intended to address? So far as I can see, they merely remove rights, particularly from the parents of children at independent schools, without good reason. Perhaps the Minister can increase my understanding of what is going on in the clause.
I was speaking to AmendmentNo. 257. I tabled it merely to understand what is going on in that part of the Bill.
My other two amendments, the chief of which is Amendment No. 258, followed by AmendmentNo. 252, are to do with educational research. It has long been my feeling that we do not have the quality of educational research, and more particularly the quality of use of educational research, in this country that we should have. When the educational system is the generator of so much research, it seems extraordinary that it does not conduct proper research and put it into effect in the educational system. Far too much happens as the result of ill considered nostra, far too many restrictions are placed on development and experimentation, and far too little is done to discover which developments are doing well and to spread the good news.
A very recent example is the Government’s by no means too early conversion to phonics, which have been an evident path to go down for some considerable time. There has been a lot of research and a lot of work, but it has taken government fiat to make it happen. In a healthy education system, that sort of realisation and improvement should be spreading and generating itself as a matter of course.
In Amendment No. 258, which mirrors the provisions under which the National Institute for Health and Clinical Excellence was set up, I suggest that we take a leaf out that book, which the Government wrote early in their career by setting up that body, and set up a body whose function is to promote research into education. We should then ensure that, where that research generates some kind of consensus, that understanding is properly promulgated throughout the educational system by means not of fiat but of recommendation, so that we get a pattern of investigation and putting into practice properly researched educational ideas. Many areas would benefit from this, not least diagnosing and treating children with special educational needs. There are all sorts of methods and means of educating and exciting people, and bringing pupils who are finding education unattractive back into the fold. There are so many ways in which research should benefit education, and so few ways in which it does. I do not criticise this Government for lack of trying—we had the beacon schools project, which was tried but failed, and we now have school improvement partners, which are making attempts in this direction—but it seems that we lack a motor at the centre of this, and the Government should take a lesson from their own good practice.
Amendment No. 252 is a small additional change in this direction. The Education Act 2002 introduced the ability of schools to innovate where the Secretary of State approved that innovation. I suggest that we loosen that a little and do not require the Secretary of State to be convinced that a particular course of action or proposal is good, but require him merely to allow it to go ahead if it is within ordinary bounds and subject to a proper evaluation of its performance. In other words, we should allow innovation and experimentation if there are useful results from it and something at the end of the day that other schools can know and understood; namely, that it has not worked or that it is a really good idea that they should pursue. There would be a proper record of how it was done, what was done and how it worked; in other words, the sort of research base you need to make progress in education.
There are a lot of schools with good ideas and a lot of teachers who are really innovative in the way in which they approach things. Where teachers are invited to generate proper research findings, as they are frequently by, for instance, Durham University’s Institute of Education, they produce a succession of well thought-out and well documented ideas. That is the sort of process and freedom that schools should be allowed. The Secretary of State should not see himself as the gatekeeper to these things, but the person who makes sure that they are done properly. I beg to move.
I shall speak to Amendments Nos. 254A and 252AA. Amendment No. 254A requires the Secretary of State to commence the earned autonomy provisions of the Education Act 2002 within 12 months of the commencement of this Bill. The powers introduced will allow highly performing schools to apply for exemption from or modification to teachers’ pay conditions and national curriculum provisions.
This amendment would make the freedom offered to schools in the Higher Standards Better Schools for All White Paper a reality by ensuring that good schools can receive additional freedoms where they have demonstrated a consistent ability to maintain high standards. At present, while the Bill will make it easier for schools to become self-governing, the freedoms that these schools have are not substantially increased. The principal route for gaining additional freedoms by governing bodies and head teachers of schools remains through what the Secretary of State has described as the,
“tortuous process under the power to innovate”,—[Official Report, Commons, 24/5/06; col. 1590.]
available under chapter 1 of Part 1 of the Education Act 2002.
If the Secretary of State thinks that the process is tortuous, is it any surprise that such a tiny number of schools have taken advantage of that power? In the three years for which these powers have been available, only 178 out of approximately 26,000 schools in England and Wales have made use of them—less than 1 per cent of schools. In many cases, the powers have been used to pilot schemes that the Government wish to evaluate.
Earned autonomy was a major element of the Schools—Achieving Success White Paper of 2001-02. Chapter 5 of the paper states:
“Where schools are successful, well-led and have a record of school improvement, we want to free them from those conditions and regulatory requirements which they tell us stand in the way of yet higher standards and further innovation”.
Again, I am touching on standards which should be absolutely central to our discussions.
Paragraph 5.18 states:
“We will allow schools flexibility over some elements of teachers’ pay and conditions, for example to provide even greater recruitment and retention incentives”.
Paragraph 5.19 states:
“We will set out clear criteria for deciding which schools should have this extra autonomy and as the school system improves we would expect the proportion of eligible schools to grow”.
These reforms were central to that Education Act. This was made clear during the debate at Second Reading when the then Secretary of State, now the noble Baroness, Lady Morris of Yardley, said in another place:
“We want to give the best schools even greater freedoms … when their success shows that they can manage their own affairs, we want to give them more scope to do so. Under the Bill, successful schools will earn greater autonomy over the curriculum and teachers’ pay and conditions”.—[Official Report, Commons, 4/12/01; col. 196.]
A consultation document on earned autonomy was due to be published on 30 September 2002. However, this did not take place as planned. As far as I am aware, the consultation did not take place and the policy is now “under review”.
The then Minister was fully committed to the principle of “earned autonomy”, which was central to the 2002 Bill. Yet it has not been implemented and there has never been a formal or satisfactory explanation for the reason for not giving good schools these additional freedoms. I hope that the Minister can shed light on this delay and on whether his department has decided to U-turn on that policy. In the best case scenario, I hope that he can inform the House that that is not the case and that he can accept our amendment.
As regards Amendment No. 252AA, Clause 153 allows the Secretary of State to amend or appealall references to local education authorities and children’s services authorities in any statutory provision, replacing it with a reference to an English or Welsh local authority. Our amendment would require that any order made under this subsection be laid in draft and approved by a resolution of each House of Parliament.
We welcome the powers in the Bill to change references to the terms “local education authority” and “children’s services authority”. It is clear that the distinctions between the various types of authorities providing children’s services and education have been broken down and that to maintain these distinctions would serve no further use. However, this is a Henry VIII clause and for that reason the Delegated Powers and Regulatory Reform Committee drew particular attention to it, stating in the report:
“We are not persuaded that the scope for any amendment of substance is so limited as to justify the negative procedure for this Henry VIII power. We therefore recommend in accordance with our general presumption that Henry VIII powers should be subject to the affirmative procedure, that the affirmative procedure should apply in this case”.
The Department for Education and Skills justifies this decision in a memorandum to the report, which tries to reassure us by stating that:
“The great majority of such amendments will be straightforward amendments in the form of ‘for local education authority/children’s services authority, substitute local authority’”.
It is clear from this that, in a minority of cases, the amendments will not be so straightforward. Indeed, the government memorandum goes on to say that in a few instances the amendments will affect the sense of a provision. This of course is inevitable. Where the law currently refers to a local education authority, simplistically replacing the phrase with “local authority” risks imposing massively expanding statutory duties or having unwanted consequences.
When the order is produced, according to the department it will need to set out in detail amendments where such a simple substitution could not occur. It would do this by, for example, setting out a list of education functions to replace references to local authorities in their capacity as local education authorities. If the hitherto novel definition of education functions is to be incorporated into English law, it is extremely important as a matter of principle that it receives parliamentary backing. This is made all the more important by the immense scope of the proposed order. The policy statement produced by the department states that over 50 non-education Acts contain references to local education authorities and that the order is expected to take two years to complete. Both of these amendments, although substantively unrelated, seek to ensure that the Government act with the courage of their own previous convictions and those of the expert opinion of the officers of your Lordships’ House.
I shall speak to Amendment No. 252B tabled in my name in this group, but perhaps I may say first how strongly we on these Benches agree with the objective of the noble Lord, Lord Lucas: ensuring that good quality educational research receives a wider audience and is implemented as broadly as possible. We believe that fact-based and evidence-based policies are always the best ones to pursue.
Amendment No. 252B seeks to ensure that academies are also required by regulations to, for example, act in accordance with the admissions code, serve school meals that meet the nutritional standards and be subject to similar school improvement measures as other schools. In other words, the amendment seeks to relate academy funding agreements to the relevant provisions of the Bill. Of particular concern to us are admissions, school improvement measures and nutritional standards. Perhaps I may speak briefly about each of them.
It is not possible to reach any conclusion about how the admissions, exclusions or the SEN regime will apply in a particular academy in terms of reference to general principles of educational law and the statutory framework. The first recourse will always need to be to the funding agreement, but levers for pupils and parents over that funding agreement are not as strong as the equivalent levers they would have over a maintained school. The DfES website on academies says that,
“in all cases the admission arrangements for each academy are agreed with the Secretary of State as a condition of the funding agreement and are consistent with the code of practice on admissions and with admissions law”.
However, as it seems that funding agreements may vary and access to them may be quite difficult for parents, this amendment would give them some reassurance that academies have to abide by the same restrictions on admissions as maintained schools.
On nutritional standards, academies are intended to replace schools in many deprived areas. The majority will have a high number of pupils entitled to free school meals. For many children, lunch is the main meal of the day, so it is important that meals served on academy school premises are nutritionally balanced. Under-nutrition, as we have heard this afternoon, can have detrimental effects on cognitive development, behaviour and concentration. Including all schools in the requirements would ensure that the food and drink provided on school premises was not subject to undue influence from a particular party such as a school sponsor who might award provision for school food to a particular company or see it as an area where costs could be cut. I understand thatthere have been examples in academies where school contracts have been awarded to companies connected to the sponsor.
Finally, on school improvement measures andlocal authority powers of intervention, in its briefing sent for an earlier day of Committee, the Local Government Association argued that:
“Children may well attend schools not maintained by the local authority, but the council is still responsible for their well-being and educational fulfilment…The Bill fails to bring Academies into the scope of a local authority’s challenge, intervention and support functions…This would mean a significant number of children in the most deprived communities will be beyond the assistance of councils”.
While many academies are improving, they are not immune to failure, as we have heard on other days in Committee. Local authorities should therefore have the power to intervene to ensure that academies are provided the necessary support if they are failing or coasting so that children's well-being and educational potential are protected.
I am glad to be able to respond positively to two sets of amendments before us. The first is Amendment No. 258 in the name of the noble Lord, Lord Lucas. It would require the Secretary of State to establish a foundation for research and excellence in education. We entirely agree with the noble Lord that evidence should have an important role in both the design and delivery of education. My department already commissions a wide range of research—indeed, a colossal range, as I see all the proposals that go through which are funded by my department. However, we are aware that in other sectors, such as health and social care, sector-wide organisations provide guidance drawn from research and other evidence. The noble Lord referred to the National Institute for Clinical Excellence and one might also cite the Social Care Institute for Excellence as an example of that.
We are considering whether some form of evidence centre in education could summarise and provide digests of research and other evidence in a form that front-line organisations and practitioners could easily absorb. That might take place in conjunction with a university. Such a centre would be likely to cover some of the functions which the noble Lord envisages for the foundation that he described.
In considering an evidence centre, we need to be careful in defining its role and remit so that it can command widespread credibility. It is a matter that we have in hand, and I will report back to the noble Lord and the Committee when I can.
Amendment No. 252A tabled by the noble Baroness, Lady Buscombe, would incorporate into the Bill the recommendation of the Delegated Powers and Regulatory Reform Committee that orders under Clause 153 which amend primary legislation should be subject to the affirmative resolution procedure. I can assure the noble Baroness that we accept the recommendations of that committee and intend to table an amendment at Report in line with that recommendation. We cannot accept the noble Baroness’s amendment, unfortunately, because parliamentary control of orders and regulations are set out in Clause 167 rather than against individual clauses. But we will achieve the objective that she seeks by means of an amendment at Report.
Amendment No. 252B, tabled by the noble Baroness, Lady Walmsley, replicates AmendmentNo. 184, laid by my noble friend Lord Judd in that it would apply to academies a wealth of legislation currently applicable to maintained schools. We debated this point fully on 18 July, when I stated why I believe adequate protection is already afforded to pupils attending academies.
I have since written in some detail to both my noble friend Lord Judd and the noble Baroness in response to the points they have made during the debate. I simply reiterate that we believe adequate protections are already afforded to pupils attending academies, including in all three of the areas to which the noble Baroness referred.
All admissions arrangements in academies must be in accordance with the admissions code of practice. There is no better guarantee of that than the fact that they must be agreed personally by the Secretary of State, including any changes made. As I said in an earlier debate, the nutritional standards will be required through the funding agreements.
As regards school improvements, I think there is a misconception as to the regulatory authority. It is not that there is not a regulatory authority in respect of academies—there is—but the regulatory authority is the Secretary of State. It is the Secretary of State who appoints school improvement partners for academies and who has the duties which, for maintained schools, are fulfilled by local authorities, as the noble Baroness described. We accept that there needs to be a regulatory authority and that it may, in certain circumstances, need to address poor performance, but that authority is the Secretary of State. As I said to the noble Baroness, Lady Scott, on a previous occasion in Committee when she raised the issue of one academy that has been failing—the Unity Academy in Middlesbrough—we have undertaken significant interventions, both in the governance and the leadership of the academy, which are precisely the kind of interventions that we would expect a local authority to undertake in respect of maintained schools within their area of responsibility.
Amendment No. 252 in the name of the noble Lord, Lord Lucas, questions the role of the Secretary of State in judging power to innovate applications. I emphasise that we are talking about power to innovate applications which relate to the suspension of legislation in respect of schools, not any power to innovate in the much broader area beyond that which does not require any contravention of existing legislation. Of course we encourage schools to be as innovatory as they wish to be, consistent with meeting their obligations to their pupils. That is the reason why we think there is a role for the Secretary of State. It is essential to ensure that all the evidence on a proposal under the power to innovate requirements—which can have significant implications for the operation of the law—demonstrates to the Secretary of State’s satisfaction that it will contribute to raising standards and that pupils and students are not disadvantaged.
In her Amendment No. 254A, the noble Baroness, Lady Buscombe, seeks to commence provisions in the Education Act 2002 giving exemptions related to school performance on teachers’ pay and conditions and the curriculum. I frankly confess to the noble Baroness that we are thinking this through further because, since we enacted those provisions, we have significantly extended the scope for innovation within the curriculum. We have slimmed down the scope of the statutory curriculum and we are seeking to do so further, for example, with the key stage 3 review that we are currently conducting. We have also, through the recommendations of successive reports of the school teachers’ pay review body and the additional powers and responsibilities we have given to head teachers in respect of the appraisal of teachers and decisions taken about the putting of teachers on to higher pay spines, given schools greater flexibility in these areas. So, in the context of the changes we have made in respect of schools at large, we are considering whether commencing the provisions in the 2002 Act to which the noble Baroness referred would be a sensible thing to do. But we wish to keep the issue under review and we have not yet reached a definite decision on it.
Finally, in his Amendment No. 257, the noble Lord, Lord Lucas, asks what is the reason for the relevant provision in respect of the registration authority—being the Secretary of State for England and the National Assembly for Wales—having powers to institute proceedings against any person who has committed an offence relating to independent schools. My explanation, I am advised by my lawyers, is this: it is essential that the legal requirements relating to the registration of independent schools can be enforced. It is entirely appropriate that the registration authority that has responsibility for determining all aspects of an independent school’s registration should have the final authority to take action where an offence has been committed. As a condition of registration, independent schools must meet the standards set out in regulations, ensuring that all children are able to learn in a safe and secure environment.
Experience has shown that the circumstancesin which these powers would be exercised are, thankfully, very infrequent. However, it is only right that the registration authority should be able to act where offences occur which would put children’s well-being at risk, and that is the reason for these provisions. On that technical note, I believe we are now well and truly on the home stretch.
I thank the Minister for a very full explanation in response to my amendments. I am really pleased that, notwithstanding the fact that he is unable to accept my amendment, the objective that I wanted to achieve is there, and we look forward to receiving the Government’s amendment on Report.
With regard to earned autonomy, I am very pleased that the Minister has said that the Government are thinking this through further. Canhe give us an idea of the timescale? Will he let us know more when we first come back in October about the possibility of further freedoms which might forestall us from taking this further on Report?
On my amendment, we will just have to accept that there is unlikely to be a meeting of minds between the Minister and us about whether it is appropriate for a Secretary of State to spend his or her time micromanaging individual schools. We believe that it would be much more appropriately done by the local authority, given the experts it has on hand. The Secretary of State should be looking more at the big picture and not micromanaging. We will have to agree to disagreeon that.
On Amendment No. 257, I entirely agree with the noble Lord that the registration authority ought to have the ability to institute proceedings. My reading of the Education Act 2002 is that that is the case. Why is only the authority in that position? Why is it only the authority that has to give its permission? That excludes anyone else taking action in respect of breaches of provisions of the 2002 Act. Is there a restriction because there has been some mischief with individuals suing or prosecuting schools privately in a way not approved of by the authority?
My understanding is that it is because the Secretary of State in respect of England and the National Assembly in respect of Wales are the relevant registration authority. That is why only those bodies have the power, but I am happy to clarify this to the noble Lord in writing.
If there is anything more to say,do, but if there is nothing, don’t. I continue to be interested.
On Amendment No. 258, I am delighted that the noble Lord is going down that road. I very much hope that the proposed body will have two important functions. The first is to make the results of research intelligible to the ordinary teacher so that he or she can use it. There are good research digests available but they do not begin to reach that audience. You would require an inordinate amount of time to make any use of the sort of thing which is commonly available. Secondly, I hope that it will be able to advise the Secretary of State on the research he should pursue; it will be gathering a lot of information on what is happening and will see gaps and possibilities emerging. If the noble Lord is not thinking of giving it a budget of its own—which I gather he is not—I hope that someone in the DfES will be listening to its thoughts on what could and should be done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 252ZA to 252A had been withdrawn from the Marshalled List.]
Schedule 16 agreed to.
Clause 153 [Power to repeal references to “local education authority” and “children’s services authority” etc]:
[Amendment No. 252AA not moved.]
Clause 153 agreed to.
[Amendment No. 252B not moved.]
Clause 154 agreed to.
[Amendments Nos. 253 to 255 not moved.]
Clause 155 agreed to.
Lord Adonis moved Amendment No. 255A:
After Clause 155, insert the following new clause—
“Power of members of staff of further education institutions to use force
After section 85B of the Further and Higher Education Act 1992 (c. 13) insert—
“85C Power of members of staff to use force
(1) A member of the staff of an institution which is within the further education sector may use such force as is reasonable in the circumstances for the purpose of preventing a student at the institution from doing (or continuing to do) any of the following, namely—
(a) committing any offence,
(b) causing personal injury to, or damage to the property of, any person (including the student himself), or
(c) prejudicing the maintenance of good order and discipline at the institution or among any of its students, whether during a teaching session or otherwise.
(2) The power conferred by subsection (1) may be exercised only where—
(a) the member of the staff and the student are on the premises of the institution, or
(b) they are elsewhere and the member of the staff has lawful control or charge of the student.
(3) Subsection (1) does not authorise anything to be done in relation to a student which constitutes the giving of corporal punishment within the meaning of section 548 of the Education Act 1996.
(4) The powers conferred by subsection (1) are in addition to any powers exercisable apart from this section and are not to be construed as restricting what may lawfully be done apart from this section.
(5) In this section, “member of the staff”, in relation to an institution within the further education sector, means any person who works at that institution whether or not as its employee.””
On Question, amendment agreed to.
Clause 156 [Collaboration arrangements: maintained schools and further education bodies]:
[Amendment No. 256 not moved.]
Clause 156 agreed to.
Clause 157 agreed to.
Clause 158 [Offences relating to independent schools]:
[Amendment No. 257 not moved.]
Clause 158 agreed to.
Clauses 159 and 160 agreed to.
Schedule 17 agreed to.
Clauses 161 and 162 agreed to.
[Amendment No. 258 not moved.]
Clauses 163 to 169 agreed to.
Schedule 18 [Repeals]:
Lord Adonis moved Amendments Nos. 259 to 261:
Page 246, line 48, column 2, at end insert—
“In section 133(1)(a), the words “or the Children Act 1989(c. 41)”.”
Page 247, line 15, column 2, at end insert—
Page 248, column 2, leave out lines 2 to 4 and insert—
“In section 89—
(a) in subsection (1A) the words “(within the meaning of section 22 of the Children Act 1989)”, and
(b) in subsection (2) the word “and” at the end of paragraph (c).”
On Question, amendments agreed to.
Schedule 18, as amended, agreed to.
Clauses 170 to 173 agreed to.
Clause 174 [The appropriate authority by whom commencement order is made]:
Lord Adonis moved Amendments Nos. 262 to 263A:
Page 120, line 14, at end insert—
“section (Admission arrangements for schools with religious character: consultation and objections) (admission arrangements for schools with religious character: consultation and objections);”
Page 120, line 15, at end insert—
“section (Schools with pre-1998 arrangements for selection by ability or aptitude) (schools with pre-1998 arrangements for selection by ability or aptitude);”
Page 120, line 22, at end insert—
“section (Power of members of staff of further education institutions to use force) (power of members of staff of further education institutions to use force);”
On Question, amendments agreed to.
Clause 174, as amended, agreed to.
Clause 175 [Extent]:
moved Amendment No. 264:
Page 121, line 3, after “Act” insert “, other than any amendment made by paragraph 2 of Schedule 10,”
On Question, amendment agreed to.
Clause 175, as amended, agreed to.
Clause 176 agreed to.
House resumed: Bill reported with amendments.
Northern Ireland (Miscellaneous Provisions) Bill
My Lords, I beg to move that the Commons reasons be considered forthwith.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to HL Bill 110 as first printed for the Lords.]
1: Leave out Clause 12
The Commons disagree to this amendment for the following reason—
1A: Because it is not desirable to preclude eligible Irish citizens and bodies from making political donations to Northern Ireland parties or regulated donees
2: Leave out Clause 13
The Commons disagree to this amendment for the following reason—
2A: Because it is not desirable to preclude eligible Irish citizens and bodies from making political donations to Northern Ireland parties or regulated donees
My Lords, I beg to move that this House do not insist on its Amendments Nos. 1 and 2 to which the Commons have disagreed for their reasons 1A and 2A.
The Commons have agreed to reinsert the two clauses relating to permissible donors because it is not desirable to preclude eligible Irish citizens and bodies from making political donations to Northern Ireland parties or regulated donees. As was made clear—or, probably, as was not made clear during the debates in this House, although we followed them up with letters with more detail—the Government firmly believe that Northern Ireland parties and regulated donees should continue to be able to accept donations from Irish citizens and other Irish bodies that can currently donate to Irish parties, as well as donations from those who can donate in the UK.
There is nothing stopping anyone in England, Scotland or Wales who is on the electoral register donating to any of the Northern Ireland political parties, if they so desire. This would follow the end of the final disapplication period in October 2007. That is the Government’s stated policy, and we believe it is consistent with the Good Friday agreement. It reflects our belief that Irish citizens should be able to make these donations to take account of the special role Ireland has in relation to Northern Ireland’s political culture.
I watched the debate in the other place, which was quite acrimonious in some places. If your Lordships agree to put these two changes back in the Bill, this change represents a significant step forward from the current position in Northern Ireland, under which donations can come from anywhere and anyone in the world and there is absolutely no obligation on parties to disclose their donations. Under the new arrangements, which the House will have the opportunity to debate in detail, donations to Northern Ireland political parties, including those from Irish donors—that is, from the republic—will be subject to regulation and verification by the Electoral Commission. That is until the end of the transitional period, we hope in 2010. Impermissible donations will be required to be returned, or indeed forfeited. In addition, all donations must be confined to the funding of political activity in Northern Ireland. That is to stop the Northern Ireland political parties being used as a conduit for what I call “GB parties”, so there is no leakage. The donations have to fund activity in Northern Ireland.
Any reasonable person outside these Houses and certainly inside both this House and the other place, has concerns about the detail of how the “permissible donors” clauses would operate in practice, particularly with regard to the conditions that Irish citizens and bodies—companies, for example—would have to meet in order to be able to donate to Northern Ireland political parties, and how these donations would be checked and verified in the future by the Electoral Commission. We recognise that these are genuine concerns, but we believe they can be dealt with. We have sought to address them when they have been raised, both here and in the other place.
As we have explained, the detail of how “permissible donors” clauses would work will beset out in UK secondary legislation following consultation with the Electoral Commission. That would be secondary legislation, as my colleague David Hanson said; not an Order in Council, but an affirmative resolution. By definition, that would be published and consulted on, both with the political parties and the wider public. That is the way legislation is done: we consult, and we have quite a long period for that. That would be after consultation with the Electoral Commission.
The secondary legislation would include the criteria that Irish donors will have to meet in order to be able to donate, and how these donations will be checked. That is, I say with respect, not the issue for today. This House, the other place, political parties and the wider public will have plenty of opportunity, when we publish that secondary legislation and consult on it, to have full, detailed explanations and debates about this issue. I have no doubt it will be of interest to the wider population in Northern Ireland. As I have said, this would be set out in an instrument to be laid before, and approved by, a resolution of each House of Parliament. Your Lordships and my honourable friends will have the opportunity fully and publicly to debate these issues when this legislation is published and then goes through Parliament. It will not be rushed through.
I repeat: this is a major step forward from the status quo. The status quo is quite unacceptable. It allows anyone anywhere in the world to donate in secret to the Northern Ireland political parties. I can honestly say I would get a 100 per cent vote for saying that was unacceptable. This provision closes that down. It may not do so in a way that everyone is satisfied with, but the detail of how we can regulate the closing-down will be set out clearly in the orders.
We have to put an end to the current arrangements. There have been pressures on what are called the Great Britain political parties concerning problems arising, as we know, with the openness and transparency of donations. Some of the problems have been self-inflicted, others have not. Nevertheless the system is transparent, open and a matter for public debate. That is right and proper and how it should be. We have to reach that state in Northern Ireland. We accept that it will be more than a one-step process between 2007 and 2010. But we have to close down the opportunity for anyone, anywhere in the world, to donate in secret to Northern Ireland political parties. I respectfully submit that the two clauses that the Commons have offered for reinsertion are a way forward, subject of course to detailed debate in both Houses of the legislation to bring it about. I beg to move.
Moved, That this House do not insist on its Amendments Nos. 1 and 2 to which the Commons have disagreed for their reasons 1A and 2A.—(Lord Rooker.)
My Lords, I am grateful to the Minister for that comprehensive explanation of the decision in the other place. We will not challenge the decision to reverse the vote on political contributions from the Republic of Ireland. However, I should like to place on record the wish from this side of the House to see in due course the practice in Northern Ireland brought into line with that applicable to other parts of the United Kingdom—in other words, no foreign donations to political parties, full stop. I think that the Minister has indicated that the Government’s intention is to move towards that in due course.
No, my Lords, with respect, I did not say that. We are saying that because of the special relationship and political culture on the island of Ireland, we should allow in regulation those who are able legally to donate to political parties in the republic—where they have their own rules; Irish citizens anywhere in the world can donate, which is not the case in Great Britain—to do so, but it should be highly regulated as we will set out in the regulations. The current arrangements do not apply only to Irish citizens; and donations can be from anywhere in the world, and, what is more, made in secret. We have to stop the secrecy. Donations will become upfront and governed by the Electoral Commission rules.
My Lords, I too am grateful for the noble Lord’s explanation, for which we have had one or two rehearsals. I thank him for making his officials available to me further to elucidate on it. As I said to them, and through them to him, we would have preferred the provision to be in this Bill rather than waiting for secondary legislation to tidy it up afterwards. It is all rather future tense. Although we have every confidence in the Minister, it would have been better had we had proper regulations about how this will work in practice. Throughout consideration of the Bill, both here and in another place, the Liberal Democrat Benches have been at pains to stress to the Government that we do not object in principle tothe proposed extension. However, we have been concerned about how it will work in practice.
The Minister and I may disagree about whether we are going about it the right way, and, as I say, I would have preferred to have the regulations ironed out beforehand. I think that there are difficulties in practice that we will come to at a later stage and that we will be pressing. However, I recognise that this considerably improves the situation. We too will not oppose the passage.
I am most grateful for noble Lords’ responses. I do not think there is anything more for me to say as both noble Lords are agreeing to the Motion.
On Question, Motion agreed to.
3: Insert the following new Clause—
“Continued suspension of Assembly: Parliamentary control of Orders in Council
(1) This section shall come into force on 25th November 2006 unless a restoration order under section 2(2) of the Northern Ireland Act 2000 (c. 1) has been made before that date (in which case this section shall cease to have effect).
(2) Paragraph 2 of the Schedule to that Act is amended as follows.
(3) In sub-paragraph (1)(a), for “by resolution of each House of Parliament” substitute “in accordance with sub-paragraphs (1A) to (1E)”.
(4) After sub-paragraph (1) insert—
“(1A) A draft of every Order in Council must be laid before each House of Parliament for approval before it may be made.
(1B) If either House of Parliament passes a resolution that the draft Order be approved with a specified amendment or amendments, the Secretary of State shall withdraw the draft Order in Council.
(1C) If no amendment or amendments are specified under subparagraph (1B), the Order shall be approved unamended.
(1D) If the draft Order in Council is withdrawn under sub-paragraph (1B), the Secretary of State may re-lay the draft Order in Council before each House of Parliament—
(a) with the amendment or amendments specified under sub-paragraph (1B) incorporated into the draft Order in Council, or
(b) with notice in writing to each House of Parliament of the Secretary of State’s refusal to incorporate the amendment or amendments specified under sub-paragraph (1B) and the reasons for that refusal.
(1E) If the draft Order in Council is re-laid under sub-paragraph (1D) without the amendments incorporated, the Order shall be made having been approved by a resolution of each House of Parliament.””
The Commons disagree to this amendment for the following reason—
3A: Because it is unnecessary in view of the Government’s undertaking about parliamentary scrutiny of Orders in Council to which the amendment relates
My Lords, I beg to move that this House do not insist on its Amendment No. 3 to which the Commons have disagreed for their reason 3A.
The Commons have decided that the amendment agreed to by your Lordships on how we deal with Orders in Council is unnecessary in view of the Government's undertaking on parliamentary scrutiny of Orders in Council, to which your Lordships' amendment related.
For the avoidance of doubt I take the opportunity once again to put that undertaking clearly on the record so there can be no ambiguity about it; that is, if we are unable to restore devolution on 24 November, we will quickly introduce measures to make direct rule more accountable, including provisions that will enable Orders in Council to be amended, in the light of views expressed by Members of both Houses of Parliament, in a way that reflects the spirit of the amendments passed in your Lordships’ House. I refer to the opportunity, agreed through the usual channels, for an amendability stage in parliamentary consideration of Northern Ireland Orders in Council. We will also ensure that we legislate for Northern Ireland by a Bill—primary legislation—wherever appropriate. We do that when we can now and we shall make sure that we highlight it in the future. I am involved with the marine Bill as a Defra Minister—indeed, when I was in Northern Ireland I discussed it with Defra Ministers—which deals with coastal areas. I told them that we wanted to include Northern Ireland in the Bill and that the preparations for that were going ahead. It is not on the horizon at present, but we shall take the opportunity to include Northern Ireland in that UK Bill. At other times we may need to legislate separately.
Neither I nor my colleague David Hanson can go into detail about certain matters, but we have made that clear. Plan A concerns the Assembly. If the Northern Ireland members of the Assembly want to keep their jobs, keep representing their constituents, keep their salaries and keep their staff in work, the Assembly will go back. It is as simple as that. It is their choice, not ours. We can do so much to cajole them back, but we cannot force them. Nevertheless, the ingredients are being put in place. Commitments have been given. At some point people will have to decide whether being elected to office in Northern Ireland means anything, or does it mean just flying over here occasionally and dipping into Westminster? That is not governing Northern Ireland. Covering the detail here is second best. That is an excuse that elected Members of the other place will make in due course. They must be ready to be attacked for that if they want to take the soft option because they will not be able to go into the detail that they could in the Assembly, even if we have an amendability stage with regard to Orders in Council. However, it is much more satisfactory than what we have had for more than 30 years. But it is much better to have locally elected, locally accountable members. You are not locally accountable flying over to Westminster once or twice a week. Locally elected, locally accountable members of the Assembly are much better placed to deal with these issues in Northern Ireland and take charge of the ministries, as they have done in the past. That is plan A.
We shall not spend the summer having discussions and working out the minutiae of the matter. We have given a commitment. I shall not be able to stand at this Dispatch Box as a Northern Ireland Minister, and neither will David Hanson in the other place, after 24 November, if the Assembly is not back—I believe that if it is not back on 24 November, it will not be back for the foreseeable future—while we promote other changes in Northern Ireland and push the reform programme forward, which involves changes to ministries because of the consequences of the review of public administration. I shall not be able to stand here and say, “We still have to do Orders in Council because we do not have an agreement”. I will not be able to do that. The statement stated, in its first or second line, that we would quickly introduce measures to make direct rule more accountable. I cannot be more specific than that. I refer to Orders in Council rather than statutory instruments. We have to be clear what we are talking about here—we are talking about Orders in Council. Statutory instruments would be a much more difficult matter. With Orders in Council a whole Act of Parliament is done in an hour. Fifty or 60 pages are involved with no chance to amend them. Statutory instruments are slightly different.
I ask leave of the House to mention a further matter before I sit down. I may have a chance to respond to what is said, but on the other hand that opportunity may not arise. This is an important week in the Northern Ireland Office because one of our key civil servants, who is in the officials’ box today, who has served in the Northern Ireland Office since the day it was set up in 1972, will retire on Friday. He served for nine years before that in the Home Office. He is the current Head of Legislation and the Parliamentary Unit, Jonathan Margetts. He is a really nice guy. He gives you good, firm and fair advice—such as, “Minister, you can’t do that”. I pay tribute on behalf of myself, the noble Baroness, Lady Farrington, and other Ministers who have served with him. He has served under 15 Secretaries of State. That has to be pretty unique for a civil servant.
Of course, the Northern Ireland Office is unique in many respects. People think that it runs Northern Ireland. It does not. I got there to find that there is a Northern Ireland government with their own civil servants and 11 ministries. That is somewhat different from the Northern Ireland Office. Jonathan has served there since the day it was set up in 1972, when Stormont was abandoned, put into cold storage and there have been 15 Secretaries of State since. I want to say thank you on behalf of the Government and this House. I wish him and his family well in a long and healthy retirement.
Moved, That this House do not insist on its Amendment No. 3, to which the Commons have disagreed for their Reason 3A.—(Lord Rooker.)
My Lords, I had not intended to intervene, but I support the remarks made by the Minister about Jonathan, who I remember from my time in Northern Ireland, on behalf, not only of this side of the House and my party, but of those of us who served in the Northern Ireland Office.
My Lords, I am grateful to the Minister for that explanation. We also had the most helpful statement at Third Reading on 19 July, col. 1289, addressing the situation that none of us hope will arise—if devolution on 24 November is not possible. The Minister has assured the House that in that event measures would be put in place—I am glad that he emphasised the word “quickly” in that statement—to make direct rule more accountable. I know that I speak for my noble friend Lord Glentoran, who cannot be in his place to