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Education and Skills Bill

Volume 703: debated on Tuesday 1 July 2008

House again in Committee.

[Amendment No. 50 not moved.]

Clause 10 [Local education authority to promote fulfilment of duty imposed by section 2]:

[Amendments Nos. 51 and 52 not moved.]

53: Clause 10, page 5, line 40, at end insert—

“( ) The duty in subsection (1) applies to all such persons who are under the supervision of the local authority youth offending team, including those in custody.”

The noble Baroness said: We now move with this group of amendments to Clause 10, which imposes a duty on local authorities to implement the main requirements of the Bill. Theirs is the responsibility to identify and chase up all those young people aged 16 and 17 who are not in school or in college, or in work with training, and to ensure that they are either in a job which includes the requisite training element or that they are helped to get back into education or a job with training. Theirs is the responsibility to find the mentors to counsel these young people with complex needs and to act as their advocates if they stray from the designated path. Theirs, too, is the responsibility to set up the individualised learning programmes to suit the needs of these young people.

Amendment No. 53 reminds local authorities that they also have the responsibility to look to the education and training needs of young people who are in the care of youth offending teams or in custody. During the passage through this House of the Children and Young Persons Bill earlier this year, we had much discussion on the needs of young people who were in custody or under the care of the youth offending teams. Indeed, many noble Lords, including the noble Lord, Lord Ramsbotham, were passionately concerned that they should continue to get the care from local authorities that they would receive if they were, in that particular case, looked-after young people. The need for continuing mentoring and friendship through the social services is a necessary part of their lives.

Equally, there was on the part of many noble Lords some scepticism about the degree to which local authorities had the capacity to meet these requirements; that on many occasions they rather conspicuously failed to deliver on their duties towards looked-after children and others with complex social and educational needs. This is where Amendments Nos. 58 and 65 come in. Local authorities do not deliver on their duties because often they do not have the resources to do so. Amendment No. 58 expressly concerns resources. Money for schools is now directly mandated by the Treasury and ring-fenced for this purpose in local authority budgets—the term is “passported directly to the schools”. Presumably this will also be true of the further education colleges once the LSC has been abolished. Perhaps the Minister will confirm that the 16 to 19 element of funding, which currently comes through the LSC, will be part of the schools’ budgets and meet the same rules of being passported through. The division of these sums between schools is now the job of the schools forums. Amendment No. 58 reminds those forums of the new responsibilities which fall on local authorities.

Amendment No. 65 adds the words “and reasonable” to the caveats in Clause 12. Local authorities do not have infinite resources. The cost of pursuing young people who are supposedly in their area of responsibility possibly to all parts of the planet is just not feasible. What is possible may carry a totally unacceptable cost to the taxpayer.

Amendments Nos. 57 and 67 put the onus on the local authorities to establish whether the young person has special educational needs which need to be addressed. Amendment No. 67 had been proposed to us by TreeHouse and the National Autistic Society. In their briefing, they remind us that autism is a complex condition that affects one in 100 school-age children. Children with autism represent 16.2 per cent of the children with statements of special educational needs. There are many barriers faced by young people with autism and their families in the current education system. More than 40 per cent of children with autism are bullied at school. Statistics on exclusion rates from school further indicate the problems faced: 27 per cent of children with autism have been excluded from school, a quarter of them on more than one occasion. Pupils with special educational needs are nine times more likely to be permanently excluded from school than the rest of the school population. In the past few years, there has been an increase in the number of pupils with special educational needs on fixed-period exclusions.

Despite these shockingly poor indicators of the experiences of children with autism, education is accepted as the best intervention. It is essential that the existing problems are dealt with to ensure that those children and young people already in the education system have positive experiences to ensure that they wish to stay on at school post-16 and also that these problems do not continue in the post-16 education and training opportunities so that the young people with autism and special educational needs can access appropriate opportunities.

This is why we are putting forward Amendment No. 67. I remind noble Lords that Clause 12 is headed,

“Duty to make arrangements to identify persons not fulfilling duty imposed by section 2”.

It provides that:

“A local education authority in England must make arrangements to enable it to establish (so far as it is possible to do so) the identities of persons belonging to its area to whom this Part applies but who are failing to fulfil the duty imposed by section 2”.

We wish to add,

“and identify reasons for failing with particular reference to any special educational needs”.

I beg to move.

Our amendments in this group complement those of the noble Baroness, Lady Sharp. Clause 10 establishes the duty on local education authorities to promote the participation of young people in education or training in their area who are subject to the duty to participate. We of course do not wish those young people to be under a duty, so have tabled amendments with alternative wordings.

Our problem with Clause 10 is the apparent imbalance between the responsibilities of young people to comply with the obligations established by the Bill and the much looser duties placed on local authorities. These concerns have been raised in another place and by the Special Educational Consortium. As currently drafted the Bill imposes sanctions which can include criminal penalties for individual pupils who are not in appropriate full-time education or training, but imposes only a general duty through Clause 10 on LEAs to promote participation in such education or training.

Young people can benefit from the Bill only if a range of appropriate, high-quality provision is available to them. The duty set out in this amendment is intended to rebalance those responsibilities. It would place an explicit duty on LEAs to secure sufficient and appropriate provision for their population of 16 to 18 year-olds. Currently, responsibility for provision for 16 to 18 year-olds rests with the Learning and Skills Council. When responsibility is transferred to local authorities, a stronger duty should be imposed. As my colleague John Hayes said on this subject in another place,

“the more insistent that we can be and the Bill can be on these matters, the better. We must not be found wanting in any way, shape or form when it comes to people who are the most challenged”.—[Official Report, Commons, 7/2/08; col. 446.]

I wholeheartedly agree with him.

Amendment No. 58 was inspired by the National Union of Teachers. We share its concerns that local authorities might not take into account all the changes that the Bill makes. There will be an increase in the number of pupils staying on at school to complete A-levels. The amendment would require local authorities to have regard to the duties imposed on schools by this legislation when they are deciding on their budgets, so that they are not caught short if more pupils have to be provided for.

The Liberal Democrats have tabled Amendment No. 67, which would identify the failing with reference to any special educational needs. I entirely endorse that. It is deeply worrying that many young people who are labelled as disruptive, or who are falling behind, actually have special needs that simply are not being picked up. There must be protection written into the Bill so that those who are left behind because they have special needs are not then penalised because nothing has been done to identify their problem and to help them.

Amendment No. 110 would ensure that if the Secretary of State issued guidance to local authorities, that guidance would be placed in the House of Commons Library. I am sure that the Government will have no problem accepting this straightforward accountability measure.

I support Amendment No. 50, which I believe is about coping with educational needs in prison. My noble friend Lord Ramsbotham made a strong case for that. Incidentally, I hope that the Minister will reaffirm that apprenticeships could begin to take root in prison and not have to wait until the individual was discharged from prison. I also put my name to the amendment—

Before the noble Baroness moves on from that amendment, it should be mentioned for the record that she is speaking to Amendment No. 53, not No. 50.

I am most grateful. I was looking at something else.

I have also put my name to the Motion of the noble Lord, Lord Dearing, opposing the Question that Clause 10 shall stand part of the Bill. Perhaps your Lordships know that the noble Lord cannot be here today because he has had an attack of viral bronchitis. However, on Report he very much wants to object to the clause remaining in the Bill, and I hope that that will be accepted. His view is that this is not the right time to be placing this requirement on local authorities. There will be no duty on them for a number of years, but there will be a duty, and he is keen that it should be quite firm, on local authorities to provide the facilities when the funding is transferred to them from the Learning and Skills Council. That is his view, and I hope it will be acceptable if he makes that case rather more specifically when he returns to your Lordships’ House.

I particularly support what has already been said about the special needs of children who have been failed by the educational system and have failed within it, and who have not really had their needs addressed. The whole point of these various amendments, which have already been spoken to, is that they will require local authorities to take a much stronger line on this and to have a specific duty to fulfil those needs. I totally support what is being said.

I support the principle of paying particular attention to those with special educational needs and, as I said at Second Reading, their early diagnosis, which this amendment does not directly address. I hope that we will get round to that later.

I cannot escape mentioning the way in which Amendment No. 53, by referring to those in custody, puts its finger on the supreme irony of a system which compels people to do something when they have very little freedom of choice and where the ultimate sanction is that they go into custody. There is a certain Alice in Wonderland dimension to that. We will return on Report to the question of compulsion and perhaps it is better to reserve anything else that needs to be said on that until then, but I cannot help looking at this sad picture of the person already in prison compelled to complete a duty which he cannot possibly do unless everybody else does their job of providing him with the means to do it and the threat of imprisoning him if he does not.

I want to say a word in favour of Amendment No. 65. First, as a wording technicality, requiring a local authority to do everything that is “possible” is really putting no limit on things. Local authorities would be compelled to employ private investigators to chase children round the world to establish where they were, and children can be extremely good at getting lost under those circumstances. So “reasonable” does seem to be the right word in practical terms.

Secondly, I am not sure that the local authority ought to be doing this. The Government will be running the national children’s database and they are also intending to keep a complete record of who is doing what courses. These things are not happening, particularly once children reach the age of 16, at a local authority level. Children of that age are able to leave home and many of them will. They will be living in relatively informal arrangements with other people. A local authority will have no natural way of finding out about these people. It will take a central register to establish whose training activity is not known and a central effort to find out where these young people have got to and bring them to the attention of the local authority. We do not want 100-odd local authorities all chasing round independently, trying to find out where Sam Jones, who used to live in the area but now does not appear to, has got to, or which kids are in the area whose homes are not there. It is going to be extremely difficult to track these pupils down if you do it in that disaggregated way. Given the tools that the Government have to do this, it might be better to run it centrally, even if at the end of the day the local authorities then pick up the challenge of helping the kids back into education.

My noble friend raises all sorts of issues. On which local authority devolves the problem of pursuit when an apprentice is taking his apprenticeship in a different local authority, for instance? Is it the local authority where the employer is or the local authority where the young person is resident and on the records?

Perhaps I may first respond to Amendment No. 53 of the noble Baroness, Lady Sharp. We entirely support the intention behind it. Young offenders are among the most vulnerable young people and are at serious risk of missing out on the education and training that they so badly need.

The duty on a local authority, created by Clause 10, to promote effective participation in learning of all young people, subject to the new duty in Clause 2, already includes young offenders, so it would not be necessary to specify them separately. However, we have recently consulted on proposals to give local authorities responsibility for providing education for young offenders in custody. Our document Raising Expectations: Enabling the System to Deliver states in paragraph 3.46:

“Consistent with the principle that local authorities should plan, commission and fund education and training for all children and young people, we want them to do so for young people in juvenile custody (who are aged 10-17 and some 18 year-olds nearing the end of their sentence). Despite recent improvements, standards of provision still fall short of what we would expect for young people in mainstream education. New planning and funding arrangements for young people in custody must foster improved outcomes, including progression and achievement in education, and hence contribute to reducing re-offending”.

Clear commitments are made there. We will see whether—I have to choose my words a little carefully, because I cannot pre-empt legislation—it would be appropriate to make these changes in forthcoming legislation in the next Session.

The intended effects of Amendment No. 57 of the noble Baroness, Lady Verma, also are already secured in the legislation. Clause 10 puts a duty on local authorities to promote participation for all 16 and 17 year-olds in their area to whom the central duty applies. That includes those with learning difficulties or special educational needs. We agree that it is important to recognise the additional barriers that some young people face, including those with SEN. It is important to diagnose learning difficulties as early as possible. That is why we announced in the Children’s Plan an additional £18 million of spending which, among other things, is to improve the workforce’s knowledge, skills and understanding of SEN and learning difficulties through better initial teacher training and continuing professional development. I launched the new units for initial teacher training last week to give effect to the first phase of our investment in this area.

The Bill seeks to strengthen assessment arrangements and accountability for those with learning difficulties through Clause 65. We will spell out in statutory guidance to local authorities that every young person with learning difficulties who is likely to benefit from an assessment should receive one. We have already consulted stakeholders on drawing up this guidance, and the Special Educational Consortium, which has also briefed noble Lords, recently commented that it was happy to be involved in the process and is pleased with the progress being made. I can reassure the Committee that Connexions and local authorities will continue to offer support to young people with learning difficulties and/or disabilities up to their 25th birthday.

I turn to Amendment No. 58. When determining the resources required by schools and colleges, we already expect local authorities to have regard to their duty to promote participation, as they will have regard to all their duties. The amendment makes assumptions about how the new funding system will operate when the transfer of resources from the Learning and Skills Council to local authorities is implemented in 2010-11. It is premature to make such assumptions given that the details of the new funding system will be subject to the outcome of ongoing consultation about how to take forward these proposals.

These changes should be implemented from the academic year 2010-11, which is well before plans to raise the participation age will be implemented. They will be put in place using the primary legislation, which, as I said earlier, is likely to be brought before the House in the next parliamentary Session, including amendments as necessary to the School Standards and Framework Act.

The noble Baroness, Lady Howe, raised issues relating to Clause 10 on behalf of the noble Lord, Lord Dearing, who we are sorry is unable to be in his place. The duty placed on local authorities is a necessary corresponding duty to the one on young people to participate in education or training. These duties are two sides of the same coin. The duty on young people cannot be delivered without the support of local authorities. If this clause were removed, as the noble Lord has suggested, Clause 2 would still place a duty on young people to participate, but there would be no corresponding duty on local authorities to enable this, or to encourage them to do so. The noble Lord and I discussed this issue in a meeting. I give way.

The noble Lord’s intention was to delay what was intended in this clause until the local authority had those additional powers and responsibilities. That was his aim. I was delighted to hear that there will be a responsibility for certain groups with special educational needs to receive education up to the age of 25. Perhaps I may also ask about young offenders who, again, do not have the right skills and are in prison until that sort of age. Who will pay for their educational needs? Will they be part of this Bill’s responsibilities? Whose responsibility will they be?

This Bill’s responsibilities go up to the age of 18. There are responsibilities placed on the Prison Service for the education of those who are over that age. Spending on education in prisons, including for those in the adult estate, has risen significantly in recent years. We are alive to our responsibilities in that regard. In respect of Clause 10—

If the Minister will forgive me, since we are on the subject of education in prison, it would be helpful to know—now or in writing—to what extent the authorities responsible for those in custody have been consulted about these proposals. How will they be met within custody? To what extent will their being in custody limit the curriculum and other choices open to them? There must be real difficulties in that area. Is it proposed, for instance, that there should be apprenticeships available within the prison industries? I should have thought almost certainly not. I would want to be reassured about the ability of that part of the Prison Service to meet the requirements satisfactorily before that was proposed. I am asking for a background note from the Minister, before Report, on how it is proposed that this will be done.

I shall be happy to provide such a background note. I covered some, but not all, of those issues in my letter on offender education to the noble Lord, Lord Lucas, yesterday. I will address in correspondence the issues I was not able to raise then. The forms of education and training that are made available in the secure estate have to be consistent with the requirements of detention, which significantly limits the capacity to offer apprenticeships. The noble Lord raised the issue of what scope there is for apprenticeships to be offered within the prison industries. I suspect that is also very limited, but I will address that.

I suspect that is the case, but I will confirm the precise position in correspondence. Returning to Clause 10, following an intervention to an intervention, the noble Lord, Lord Dearing, and I discussed this issue with Peers at the open meeting on the Bill a week ago. I explained to the noble Lord, but I say again for the record, that the duties in Clause 10 range far more widely than those in respect of the funding that will be transferred from the Learning and Skills Council to local authorities, under legislation likely to come forward in the next Session. Local authorities have a wide range of other duties, including the provision of support services, targeted services for vulnerable groups, and the sort of training and education opportunities that we discussed earlier in our proceedings. These range far more widely than the direct funding of 16 to 18 education, which will be transferred to them under the legislation expected in the next Session. Clause 10 is a flexible clause, which takes account of that. It says:

“A local education authority in England must ensure that its functions are (so far as they are capable of being so exercised) exercised so as to promote the effective participation in education or training of persons belonging to its area”.

That duty will also apply to functions as they are extended by future legislation. Therefore, it is absolutely appropriate that this clause should be in the Bill. Its practical impact will increase as the tools available to local authorities to promote participation increase with forthcoming legislation.

We entirely agree with the intention of Amendment No. 67 in the name of the noble Baroness, Lady Sharp. I join her in paying tribute to TreeHouse, an organisation which I know well, which does outstanding work with autistic children. However, it is not necessary to add to Clause 12 an explicit reference to those with special educational needs. The provisions in the Bill to raise the participation age are intended to ensure that all young people have the opportunity to participate and achieve. Ensuring that the most vulnerable are not left behind is one of the key motivations of this legislation. Children with SEN are fully encompassed in Clause 12.

I do not think that the noble Baroness spoke to her Amendment No. 65.

I spoke to it in relation to resources. As I pointed out, there are limits to what local authorities can be expected to do and to spend in chasing up these young people. Clause 12 states:

“A local education authority … must make arrangements to … establish (so far as it is possible to do so)”.

What is possible to do may cost an enormous amount of money. Therefore, I propose that it should be not only possible but reasonable that it should do this.

We are not minded to weaken the duty on local authorities in the way that the noble Baroness suggests. However, the definition of what is possible must encompass what is reasonable. I therefore suspect that the difference between us may not be as great as it seems.

Amendment No. 110 stands in the name of the noble Baroness, Lady Verma. I am glad to tell her that I can meet her concerns entirely. We will ensure that all statutory guidance relating to this part is placed in the Library and that notice is given when this is done. We will also publish it on the department’s website. This is routine practice for us, so alive are we to our duties to Parliament. We will ensure that our duties are fully performed in this regard, as in all others.

Will the noble Lord take advice from the Government’s most senior lawyers about the use of “possible” between now and Report? Most of us are much more familiar with the use of “reasonable” in legislation than with “possible,” and there may be advantages in using it.

In addition to writing the letter, will the noble Lord give some clues about what mechanisms a local authority is expected to be able to employ to track down people? I may have missed the definition of “belong” in the Bill, but my understanding is that it indicates that people have their residence in the area. Will young people have to register that with a local authority in some way? The local authority will presumably know where the parents are because they are usually reasonably locatable, but once a young person has left home how will the local authority know where they are?

The noble Lord will have the opportunity to address those issues when we come to the Clause 12 stand part debate.

I thank the Minister for his response and for ensuring that the relevant information will be placed in the Library of the House of Commons.

The Minister says that the Bill will place a duty on local authorities to ensure that education and training is in place for young people, but it seems that young people will face criminal action if they do not comply. I remain unclear on what penalties local authorities will face and I hope the Minister can clear that up. I am not sure that he has addressed my noble friend’s question on where responsibility lies if the young person crosses the boundaries of two local authorities. The Minister says that we cannot pre-empt the levels of local authority funding until the legislation comes into force, but how can he say with confidence that adequate funding will be in place for the increased numbers who will stay on in education when the legislation comes into force? My amendment relates to an issue raised by the National Union of Teachers. There is great concern that local authorities will be short-changed when they have to deal with extra numbers without extra funding being in place. Perhaps I may press the Minister for further responses on those issues.

I am grateful to the Minister for answering a number of the queries that we raised. It would be particularly good if he could clarify the situation of those in custody. I would be grateful if he will send us a copy of the letter that he sends to the noble Lord, Lord Lucas. If he produces a further background note for the noble Lord, Lord Elton, perhaps we could see that as well.

We wanted to include in Clause 10 those who are in custody precisely because local authorities occasionally forget their explicit duties under the Children Act and it is sometimes necessary to remind them. As the Minister suggests, that might be dealt with more appropriately in the legislation that he brings forward next year, but it would nevertheless be good to see it somewhere in the legislative framework.

One issue that worries me slightly relates to those who have special educational needs but who do not get a statement. As the Minister well knows, some of them fall under the category of “school action”. In particular, those who are categorised as “school action plus” fall on the borderline of needing a statement, but they may not get one. Many of these young people are vulnerable for the same reasons as are those with special educational needs who have a statement that they are vulnerable. It is important that even those without a statement continue to get the educational and training support that they received in school. As the noble Baroness, Lady Morris, said, it is necessary to regard 14 to 19 as a continuum, as distinct from regarding 16 and 17 year-olds as separate.

The Minister said that every young person with a statement will be looked after by the Connexions service and receive support and so on. Nevertheless, those covered by “school action plus”, who may well leave school and start some form of work with training when they are 17, often still need some sort of support. It is necessary to think about that issue. I think we will return to it in the next group of amendments.

Finally, I have not addressed the Question on whether Clause 10 should stand part. We on these Benches recognise that someone has to implement the legislation, and it seems obvious that it should be the local education authority. I recognise the logic of the arguments of the noble Lord, Lord Lucas. However, central government already have their fingers in so many pies that it would be a good thing if they kept them out of a few. Although the right place for this responsibility might be the local authorities, this business of the permeable frontiers which they have to cope with poses some difficulties. We have largely not questioned that Clause 10 should stand part. However, we are extremely anxious that local authorities should have the resources needed to deliver on Clause 10. We are very much with the official Opposition in not feeling confident that the Government will give local authorities the resources they need to deliver their aspirations. We are also not confident about local authorities recognising their duties, which includes both the custody issue and special educational needs. But we will come back to those issues in other groupings and undoubtedly on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 to 58 not moved.]

Clause 10 agreed to.

59: After Clause 10, insert the following new Clause—

“Duty to assess education and training provision

(1) A local education authority in England must prepare assessments of the sufficiency of the provision of education and training provision in their area (“education and training assessments”).

(2) The first education and training assessment must be prepared before the end of the period of one year beginning with the commencement of this section.

(3) Subsequent education and training assessments must be prepared at intervals not exceeding three years.

(4) The authority must keep an education and training assessment prepared by them under review until the education and training assessment is superseded by a further education and training assessment.

(5) Regulations may make provision requiring an education and training assessment—

(a) to deal with prescribed matters, or be prepared according to prescribed criteria;(b) to be in the prescribed form; and(c) to be published in the prescribed manner.(6) In preparing an education and training assessment and keeping it under review, a local education authority in England must—

(a) consult such persons, or persons of such a description, as may be prescribed; and(b) have regard to any guidance from time to time by the Secretary of State.”

The noble Baroness said: I shall speak also to Amendment No. 61A, which is in my name and that of my noble friend. These two amendments deal with the responsibilities placed on local authorities by Clause 10, which make them the effective body required to implement this part of the Bill. The purpose of the first amendment is to require local authorities to audit the sufficiency and diversity of education and training provision in their area. The second is to ensure that there is a suitable place for every young person aged 16 to 18, whatever their needs.

The Secretary of State must be satisfied that there is sufficient and diverse provision before the duty to participate under Clause 2 can come into force. These amendments have been proposed to us by the Special Educational Consortium. The consortium is anxious, pointing out that there are approximately 772,000 disabled children under the age of 16 and that around one in five pupils have some form of special educational need.

The Special Educational Consortium supports the fundamental principles of the Education and Skills Bill, including the proposal to extend the requirement to stay in school and education to the age of 18. It recognises that many 16 year-olds also stay on in school or move into further education and training. However, those most at risk in the system are least likely to stay on, and that disproportionately includes disabled pupils and pupils with special educational needs. The Disability Rights Commission found that non-disabled young people are twice as likely as their disabled peers to transfer to sixth form or college at 16-plus. This has a significant impact on life chances. By the age of 19, 9 per cent of non-disabled young people are not in education, employment or training whereas, by our definition, 27 per cent of disabled young people are NEETs.

One of the Special Educational Consortium’s key concerns is the balance of responsibility between individual young people and the local education authorities. As currently drafted the Bill imposes sanctions that can include criminal penalties for individual pupils who are not in appropriate full-time education or training, as it imposes only a general duty through Clause 10 on local education authorities to promote participation in such education and training. In line with Barnardo’s, the Special Educational Consortium believe that the success of the Bill will rely on providing the relevant learning opportunities and appropriate support for young people with SEN who want to stay on. The Special Educational Consortium believes that young people can benefit from the Bill only if local authorities have the appropriate capacity to make the assessments and if there is a range of appropriate high quality provision available to them.

The duties set out in the amendments would rebalance responsibilities. It would place an explicit duty on local authorities to audit the sufficiency and diversity of education and training provision in their area and ensure that they have the appropriate assessment capabilities and that there is a suitable place and support for every young person aged 16 to 18, particularly disabled young people and those with learning difficulties or special educational needs.

Many local authorities currently find it quite difficult to meet the requirements for assessment within the current age ranges in schools. Children with special educational needs are often identified in primary schools, even in reception classes. By the age of six or seven, many of the behavioural traits that lead the children later to drop out of school are apparent but the help that schools get from their local education authorities, from educational psychologists and behaviour support and management, is often not very great—one or two afternoons a term from an LEA specialist. In particular, there is a huge shortage—I have spoken of this before—of educational psychologists. Partly because of that shortage, turnover is great. Many schools find that they are just not getting the support that they need. If our aspiration is that these young people should be able to receive through local authorities the support that is in the Bill, many local authorities will have to think hard about their provision. Currently, the responsible core provision for 16 to 18 year-olds rests with the Learning and Skills Council.

I return to the arguments of the Special Educational Consortium. It recognises that the duty set out in the amendments could not be implemented until funding and responsibility is transferred to local authorities. That will require further legislation, which we have just discussed.

Amendment No. 59 involves the,

“Duty to assess education and training provision”.

It requires local authorities to,

“prepare assessments of the sufficiency of the provision of education and training provision in their area”.

Amendment No. 61A relates to the,

“Duty to secure sufficient and diverse education and training provision”.

It states:

“A local education authority in England must ensure, as far as is reasonably practicable, that the provision of education and training is sufficient to meet the requirements of young persons in their area”.

In determining this, it must,

“have regard to the needs of young persons … for a diverse range of academic and vocational provision … must have regard to the provision of education and training which is suitable for disabled young persons and those with learning difficulties, and … must have regard to the adequacy of assessment procedures in relation to special educational needs and the importance of early assessment and continuing support if a young person with special educational needs is to fulfil his potential, and … may have regard to any education and training which they expect to be available outside their area”.

The amendments would put substantial responsibilities on local authorities to provide this diversity of provision and to meet the needs of those with special educational needs and disabilities. I beg to move.

The Liberal Democrats have proposed two new clauses to the Bill which enshrine the duty of local education authorities to provide sufficient education and training provision and to assess how that provision will work. These are sensible new clauses and echo what we on these Benches have been saying: that the Bill, as it stands, talks too much about the duties of young people and not enough about the duties and responsibilities of local authorities. We are very supportive of the idea of making it clear that local authorities must take those duties seriously.

The Learning and Skills Council currently has a duty to ensure proper provision for all 16 to 19 year-olds, and for all 16 to 25 year-old learners with learning difficulties and/or disabilities. This role covers all the aspects set out by the noble Baroness, Lady Sharp, in her opening remarks. Under Section 2 of the Learning and Skills Act 2000, the Learning and Skills Council is required to secure the provision of proper facilities for,

“education (other than higher education) suitable to the requirements of persons who are above compulsory school age but have not attained the age of 19 … training suitable to the requirements of such persons … organised leisure-time occupation connected with such education, and … organised leisure-time occupation connected with such training”.

It defines facilities as proper if they are,

“of a quantity sufficient to meet the reasonable needs of individuals”—

including, of course, individuals with learning difficulties and/or disabilities—

“and of a quality adequate to meet those needs”.

Therefore, when the LSC undertakes its planning responsibilities, it already takes account of the elements that Amendment No. 61A specifically mentions; that is to say, it draws up commissioning plans at a regional level, recognising the need for a diverse range of academic and vocational provision, and ensuring suitable provision for learners with learning difficulties and/or disabilities.

The Bill seeks to strengthen the assessment provisions for young people with learning difficulties and/or disabilities. We will spell out in statutory guidance to local authorities that every young person with learning difficulties who is likely to benefit from an assessment should receive one under Clause 65. Local authorities will be legally required to have regard to this guidance, and we believe that it will ensure that provision in this area is sufficient.

As I said, it is our intention that responsibility for funding and commissioning 16 to 19 provision will be transferred from the LSC to local authorities from 2010. Local authorities will be responsible from 2013 for making a reality in their area the national entitlement to a new, wider choice of options. Drawing on the plans drawn up by their local 14-19 partnerships, local authorities will be required to analyse demand from young people and ensure that choices are informed by good information, advice and guidance. They will compare the pattern of demand to the existing pattern and performance of local provision, and work with schools, colleges and other providers to assess the best way of filling any gaps and promoting quality. This analysis and these decisions will lead to a commissioning plan agreed within and outside the area, either as part of, or closely aligned to, the local authority’s children and young people plan.

Local authorities will work together in subregional groups in their commissioning, in order to analyse and understand demand from across the travel-to-learn areas of all their learners, to consider gaps in provision and to share judgments of quality. Local authorities need to plan for all young people up to the age of 25. For some, including learners with learning difficulties and/or disabilities, provision may be highly specialised and costly. Planning across a wider area for such provision will be particularly important.

We intend to legislate for these aspects in the next parliamentary Session. Subject to such a legislative slot being available and the Bill being passed, by the time the policy to raise the participation age comes into force, local authorities will have duties to secure sufficient appropriate provision, including provision for students with learning difficulties and/or disabilities. They will also have duties to keep that provision under review. We therefore do not believe that it would be appropriate to legislate here for these new duties. However, I hope that I have given sufficient assurances to the noble Baroness for her to be confident that the existing planning duties on the Learning and Skills Council meet the points that she has raised, and that we will transfer and strengthen those duties when local authorities take them over, under legislation to be forthcoming in the next Session.

I thank the Minister for his reply. It is a little unsatisfactory that we are legislating here in two bites. We have to take it somewhat on trust that the next Bill will contain these clauses. I accept what the Minister says and that at present these are the responsibilities of the Learning and Skills Council, but clearly, in so far as local authorities are assuming the responsibility for implementing the Bill, we want some assurance that they will have the resources and capacity to deliver on these requirements.

As I said, I accept what the Minister says, although it does not seem to be totally satisfactory. We need to think about these things a little more, and the noble Lord may well find us coming back to some of them at Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

60: After Clause 10, insert the following new Clause—

“Certificates of appropriate training or education

(1) A local education authority may designate any educational institution or other person as a provider of education or training for the purposes of this section.

(2) An institution or person so designated may issue a young person with a certificate in a prescribed form to the effect that the young person has made appropriate arrangements for training or education within the meaning of section 21(1) which shall include a telephone number and other contact details to enable an employer to ascertain the currency and veracity of the certificate.”

The noble Lord said: The noble Baroness, Lady Sharp, should be grateful that the Government are not intending to create the second Bill by means of a Henry VIII clause in this Bill. The Pensions Bill, which we shall consider tomorrow, contains a second Bill in just that fashion.

Amendment No. 60 is intended to be helpful, particularly to employers, who have a duty under Clause 21 to take all reasonable steps to ascertain that a prospective employee is undertaking the required amount of training. However, the clause is entirely silent on how they should ascertain that and it does not provide any helpful mechanisms to enable them to do so. I spent a good deal of my life trying to get information out of educational establishments, which in many cases is extremely difficult. They are not set up to answer questions from people outside. They often tend to be neither efficient nor helpful and, when you do get through and ask them a relevant question—particularly if you ask them whether so and so is indeed attending the college and whether they are following the course that they say they are—you will be told that they cannot disclose the information under data protection legislation because there is no duty on them to do so.

In a rather roundabout way, therefore, the amendment is intended to provide such a duty, together with a mechanism for making it easy for an employer. It would produce no disincentive to employing 16 and 17 year-olds because the said prospective employee would arrive bearing a certificate, which would make it extremely easy for the duty in Clause 21 to be satisfied. I suspect that the Minister will say that he has a better way of doing these things but I shall enjoy listening to him. I beg to move.

The new clause proposed by my noble friend Lord Lucas is an attempt to make it easier for employers to fulfil their obligations by making available a certificate showing that a young person has made appropriate arrangements. I agree that as much as possible should be done to ease the duty on employers. I should like to speak to my Amendment No. 114 in this group, which limits the steps that an employer is expected to take to fulfil its obligations so that it does not have to ask the young person’s college of further education for details of the individual’s course.

It has been made very clear by parties whom we have consulted, including the Institute of Directors, 70 per cent of whose members are small and medium-sized enterprises, and others, that one of the biggest day-to-day problems facing business is the ever-increasing flow of red tape and bureaucracy. We want to keep the burdens imposed on employers to an absolute minimum; otherwise, we run the risk of seeing the young people whom we are trying to help in this Bill excluded from the workforce because the bureaucracy involved is too daunting and time-consuming. I seek the Minister’s assurances on that point.

Amendment No. 112 is a probing amendment. The intention behind it is to ensure that training is rigorous and of a high quality; in other words, that it is sufficient for purpose and not merely relevant for the needs of the learner who requires new skills. I have chosen the word “sufficient” because I am talking about the level of learning that is to be achieved; otherwise, we will just be wasting everyone’s time. The amendment would ensure such an outcome, as I am sure the Minister will agree.

I wish to speak to the Question whether Clause 21 shall stand part, which is grouped with these amendments. Much of the debate on the Bill centres on issues of compulsion as against willing co-operation—sticks and carrots were mentioned frequently last week. In Clause 21, we can see there may be unintended consequences, which could be foreseen and forestalled at this stage.

I support what the noble Baroness, Lady Verma, has just said about the messages coming from employer organisations. The figures show that young people are more likely to be working in small businesses, and that some 70 per cent of 16 to 17 year-olds in jobs without training work in firms with fewer than 50 employees. Three-quarters of those businesses have no human resource support, so any hiring, firing, recruiting, training or monitoring will be done by someone taking time out from their main job.

Small businesses are an essential part of the national economy, and in the current climate, when times are particularly hard for them, they will naturally take actions to increase their profitability. You do not run a flourishing small business without being quite aware of the rules and regulations, and how you can work with them. The requirements of the Bill—specifically, within Clause 21—provide a significant disincentive to employ 16 to 17 year-olds. For instance, the cost of checking that the 16 or 17 year-old has,

“made appropriate arrangements for training or education”,

which the noble Lord, Lord Lucas, mentioned, will not always be straightforward. Indeed, the employer might well ask themselves whether they would be infringing the age discrimination law by asking a young person’s date of birth.

There are various other factors, including that these young people rarely stay in a job for any length of time—often, only a few months—so there will be frequent employee turnover. Training programmes may vary, with delays in gaining an appropriate training opportunity, for instance, when the timings might not suit the working day so that employers may have to alter other work schedules or call on other employees to work more flexibly, to fit around the young person.

Employers will need clear guidance on this clause. At its simplest, there will be additional administrative burdens. We had a government projection that a 10-minute check would be required. That seems optimistic, and a conservative estimate has been set that employers checking for any young person might accumulate some £8 million a year across all businesses. Indeed, there are higher estimates from calculating, using the hourly rate, the time spent on this additional monitoring which could be made earning money in the main course of the business.

We are talking about a cohort of young people who may not have responded well, if at all, at school—that has come up in previous interventions from your Lordships—but who could learn valuable, on-the-job training and transferable life skills if they go into employment, even if that is not directly associated with formal qualifications and training. The demands of this clause could well close off some of those routes. If it is simpler to look elsewhere, employers cannot be blamed for being more attracted to employing 18 year-olds, or even migrant workers, rather than this cohort that carries additional burdens for them. The employer organisations the CBI and the IoD have expressed concerns about the impact of this clause. Little will be lost by removing the employers’ statutory obligation to check on appropriate education or training, but if the clause remains it could significantly affect the job prospects of some of the young people who need the most encouragement. I look forward to the Minister’s reply.

As so often happens now in our debates, I am being pulled both ways. I have just heard the noble Baroness, Lady Garden, put a case for having no duties at all on employers to ensure that their employees are undergoing proper education or training. Yet Amendment No. 112, in the name of the noble Baroness, Lady Verma, would significantly increase the duties on employers because, in addition to checking that the young employees are participating, they would be required to check the number of hours that those individuals are in education and training, in order to ascertain whether that was “sufficient”, which is what she seeks to do by inserting that word. Such detailed checks to ascertain not merely that a young person is engaged in education and training but that the number of hours required in the Bill are completed would be a complicated and time-consuming exercise, which we do not think it would be appropriate to expect employers to undertake. For example, if checking hours added 10 minutes to our overall estimate of the time needed for employers to fulfil their duties under the clause, the cost to employers would double. We are certainly not minded to go further than we set out in the Bill.

Why do we think it right to go as far as we do in the Bill—the issue raised by the noble Baroness, Lady Garden, in her remarks on whether Clause 21 should stand part? We have worked hard with employer groups to ensure that the duties on employers are as light touch as they possibly can be, but deleting the clause would mean that employers would be under no duty whatever to check that young people are in learning before letting them start work. That would mean that a young person could start work breaking the law and the employer would, knowingly or unknowingly, be complicit in that act. That is not acceptable. If the law is to be enacted, employers should exercise responsibility to ensure that their employees within that age range are undertaking education or training.

The clause is designed to place an important incentive on young people who want to work to get a place in learning first, knowing that they will not be able to get a job if they have not. Having no duties on employers would seriously disrupt the balance of roles and responsibilities that is fundamental successfully to raising the participation age, so we are anxious that the clause stand part of the Bill.

Amendment No. 60, tabled by the noble Lord, Lord Lucas, on certificates, is, we believe, covered by the Bill. The question of whether a young person in employment has made appropriate arrangements for their part-time education or training will depend on whether they are working towards accredited qualifications, not on the type of institution at which they are doing so. They could be studying towards an accredited qualification at any one of a range of institutions: a maintained school, an independent school, a sixth-form college, an FE college or a private training provider. All those institutions can already provide young people with a letter confirming their offer of a place or their enrolment on a course and will already routinely do so. They do not need a legal power to do that.

We will, however, provide employers with clear and simple guidance about what they need to look for in a letter of confirmation shown to them by a young person whom they want to employ, to see that the duties on employers are not unduly onerous—for the reasons set out by the noble Baroness, Lady Garden. We will involve employers in developing that guidance and consult them on it, so that it meets their needs. Employers will not be expected to contact a learning provider to check that a young person is enrolled although, if they wish to do so, or to discuss the detail of the course that the young person is undertaking, the contact details would normally be found on a letter from the provider.

I hope that that deals with the issues raised, but this is quite a disparate group of amendments and I may have missed something. I will be happy to respond.

Can the Minister clarify one thing? On one hand, he tells my noble friend Lady Garden that it is not reasonable to take away the employer's duty to check at all; but on the other, he tells the noble Baroness, Lady Verma, that the Government do not intend that employers should spend a lot of time satisfying themselves that the education and training arrangements that the young person has made fulfil the duty by including enough hours, because that would take them too long. I certainly agree with that approach. Can the Minister explain what the word “appropriate” in Clause 21 means? He suggests that the employer must be satisfied that all such steps as are reasonable have been taken by the young person to make,

“appropriate arrangements for training or education”.

If appropriate does not mean, “such arrangements as to fulfil the duty to participate”, what does it mean?

The Explanatory Notes are quite clear on what Clause 21 encompasses. They say:

“Clause 21 places a duty on employers not to employ a person unless they have taken reasonable steps to check that the person has made appropriate arrangements to participate in relevant education or training. The duty does not require the employer to check that the relevant training or education is sufficient (that is enough hours in the relevant period). For example, an employer would check that a potential employee could produce a letter from a learning provider indicating that he or she had enrolled on a course”.

As I said earlier, we want those letters to be in a standard format so that they are easy for employers to use. The Explanatory Notes continue:

“It provides for an exception to this if the contract is made conditional on the person making arrangements to undertake appropriate education or training, in which case he or she must have done so before employment commences”.

In that case, what on earth is the point of it? If the employer is not to check whether the young person has taken full responsibility to fulfil their duty to participate, what is the point of checking at all? The young person might just have enrolled on some embroidery class for an hour a week. The clause does not do the job. It would take employers far too much time to check properly, which is why we on these Benches suggest that there is no point to Clause 21.

As so often, I find myself holding a sensible middle ground between two extreme positions—in this case, positions that have been taken up by the two parties opposite. I have the noble Baroness, Lady Garden, saying that there should be no duties on employers, and the noble Baroness, Lady Verma, saying that there should be enhanced duties on employers, who should now have to check the precise number of hours. It is reasonable that there is a duty to check that the young person is engaged, or has made arrangements to be engaged, in education or training.

As I said earlier, the very fact that that requirement is in place—it is a perfectly plausible proposition—will be a significant incentive for young people, because they will know that employers are expected to check that they have made arrangements to engage in education or training. However, we do not want to specify the nature of those checks in excessive detail. In very many cases, it is quite likely that the letters that are produced by the learning providers will specify the number of hours. We are talking about the statutory minimum requirements on employers, and a requirement that they should make a check, which will be a significant incentive for the young person, is a reasonable step in the circumstances. There is a balance of duties on employers, on young people, and, as we discussed earlier, on local authorities, but we do not want to go down the Conservative road of overregulating employers by requiring them to have to check the precise number of hours in all cases.

I am a bit confused about who checks on what. The reciprocal duty to see that the educational part of the sandwich is provided rests on the education authority, not on the educational institution that the young person attends. Am I right? Did I gather from the previous debate about the duties of local education authorities that it is down to them to ensure that the young person is fulfilling both halves of their contract?

There are two distinct aspects to this. Enforcement action against a young person who is not participating in education and training as required under the Bill lies with the officers of the local authority. However, there is duty on employers to check whether those whom they are employing are engaged in education or training. The enforcement against them if they are not so engaged lies with the local authority, not with the employer.

If this is going to work, presumably someone must keep a register—that is what it would be in a school—or record of attendance at the place of education. Is it up to that institution to blow the whistle and tell the local authority that someone is truanting, as we used to call it, and is not taking the course?

In practice these duties will lie mainly with Connexions officers who will keep the records. But those who have information about failure to comply with the law will have a duty to make it known.

Or the local authority, which would see that it is passed to the relevant officers of the authority. That is because the Connexions officers will be employed by the local authority as Connexions moves to local authorities.

Perhaps I may help the Minister. Would it be easier if the college were to incorporate my amendment in its letter so that the details of the course the student has enrolled on are passed to the employer? The onus will then be on the college to report back to the employer if the student is not actually attending.

Picking up on the Minister’s comment about the word “sufficient”, my amendment seeks to ensure that the training being undertaken by the young person is sufficient to meet the needs of the employer and that it is purposeful. The student should not be there just for the sake of undergoing training.

I shall reflect on the noble Baroness’s remarks in respect of the letters that can be provided by colleges. Obviously if they were to provide this information, it would make it immediately apparent to employers whether the full range of obligations were being met by the young people in question. However, our concern is to keep the burden on employers to a minimum, and the judgment we have made sensibly holds to the middle ground on the issue: it is a requirement to check that young people are engaged in or have appropriate arrangements in place to be engaged in education or training. That is a sensible step. Actually to require them to ascertain the number of hours would be a step too far.

I shall start by asking the Minister a couple of questions on side issues. The first is a question I put to him earlier but did not get a reply to. What does it mean for a young person to “belong to” a local authority? In my experience, teenagers are rather like cats. However much you feed and house them, they do not reckon they belong to anybody.

It means “reside in”. Of course, like other people, they may move to a different authority, and in that event they would belong to the new authority.

Secondly, do education providers have permission, as it were, under data protection legislation to reveal to an employer what course a young person has booked on or is engaged in? Revealing that sort of thing is becoming extremely tricky, I believe.

Yes, provided that they have the consent of the young person to do so. But since the young person will be the bearer of the certificate or letter, one assumes that that consent is implicit.

I come back to the duty under Clause 21. The duty is to take all such steps as are reasonable to ascertain that the person has made appropriate arrangements for training or education. If a lawyer was looking for a meaning for the term “appropriate”, he would go back to Clause 4 to see what “appropriate” education might mean, and that is getting quite deeply into the detail of what this education consists of. I can see why the noble Lord does not want to call it “arrangements for education” because as the noble Baroness, Lady Walmsley, said, that might be basket weaving for an hour a week. But the use of “appropriate” is to ask for quite deep judgments to be made in much the way that the word is used in Clause 4. The noble Lord says that, in practice, this will be written much more lightly in the guidance. So it may be—it would be onerous if it was not—but, nevertheless, that is not the way in which the wording will be read.

The noble Lord is right to probe this further. As the word “appropriate” is now on everyone’s mind, I should point out that it is defined in Clause 20, which sets out what the appropriate arrangements are. It states:

“For the purposes of this Chapter, a person to whom this Part applies has made appropriate arrangements for training or education if … the person has enrolled on a course or courses constituting relevant training or education … or … the person is participating in full-time education or training”.

Perhaps the noble Lord can also point me to the meaning of “relevant” in this. Again the noble Lord is asking for extensive judgments to be made unless that is defined somewhere else in this context. What is “relevant”? Relevant to what?

I am trying to find which particular use of the word “relevant” applies. I shall take the matter away and have a look at it. Each time the Minister uses one of these words, he is asking for a judgment.

“Relevant” in Clause 6 means,

“training or education towards an accredited qualification provided by a course or courses”—

that is, training or education which enables them to fulfil their duties under the Bill.

If we are looking only at that, it can be basket weaving as long as it is accredited; it need not be anything which constitutes the duty of 280 hours of guided learning. So there is no check-up on that process happening there. If it is that light, any accredited course will do. It does not say that it has to be an accredited course which fulfils the 280-hours duty. So we come back again to my suggestion that there should be some kind of document. If we are to have a letter from an education provider anyway, we may as well say what that letter should contain—that it should provide contact details; that it should involve giving permission for conversation; and that it should say that the training satisfies the 280 hours the duty requires. It is a simple thing to require an education provider to do and seems the easiest way of getting round the problem. I shall not chase the Minister further at the moment.

As I said to the noble Baroness, Lady Verma, I shall look further at what more we can say about a standard format for these letters and I will write to the noble Lord setting that out. That may meet many of the concerns that have been raised, including the question which started these discussions of how credible it is for employers to undertake these checks in a short period of time.

If we have guidance to employers on how to make this check which is longer than two sides of A4, it will start to make difficulties because people do not have the time to take that kind of information on board. They are not like schools, which enjoy dealing with 100 pages of government regulations every Monday morning. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

61: After Clause 10, insert the following new Clause—

“Listening to the views of children

After section 175 of Education Act 2002 (c. 32) insert—

“175A Listening to the views of children

(1) It shall be the duty of the governing body of a maintained school, in the exercise of any function relating to the conduct of the school, to have due regard to the ascertainable views of the pupil on matters that affect him or her, taking account of his or her age and maturity.

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

(3) The Secretary of State may issue guidelines in relation to such school councils and other collective mechanisms.

(4) In this section “maintained school” has the same meaning as in section 39 of this Act.””

The noble Lord said: I gather that there is a scintilla of time in which to examine my humble offering. The amendment is a kite with a long string. It is within the terms of the Long Title of the Bill but it does not address the young people in the age group with which the Bill is concerned; it considers the condition of young people as they arrive in that age group. That condition is determined by the state of the compulsory education system as it now is. I think we all agree that there is in it a deep malaise, which is reflected in what is happening on our streets and in our society.

In seeking to consider this in the context of the Bill, with the indulgence of the House, because I think it is important and relevant, I sought to find one aspect of the legislation which could be used to address a central issue. What is too often wrong with the schools preparing these people for this stage in their education is that they are disorderly. There is bad behaviour in classes, which disrupts the teaching. There is disregard for authority, which leads to rebellion. I regret to say that in a number of schools a number of children feel safer on the street in a gang than they do either at home or in school. I have heard that said in some parts of south London.

What can be done to stabilise this circumstance and how can central government do anything to achieve that? I regard legislation as the last resort. As I say, this amendment is a kite rather than a substantive proposal. In inquiries that I helped to conduct many years ago, under circumstances which were quite appropriate to make them relevant to this day, in visits to a large number of schools in this country and a number in other countries we found that one of the best ways to secure a policy of behaviour among school children conducive to their learning in the classroom as well as their good conduct outside the school was to involve them in the management of the school discipline policy. We advised head teachers in particular and staff generally to involve the children in questions of discipline.

One of the most convenient forums for this is a school council where matters of discipline naturally come up quite quickly for discussion between the pupils and staff. They must recognise that as effective and not merely a bit of window-dressing—nothing is more damaging than a token school council where the teachers appear to pay attention and do the opposite. It should be a school council in which teachers and children together work out what minimal rules of behaviour will effectively enable the security of the children, the stability of the environment and the process of learning. Different schools, localities and cultures require different approaches. That is why any legislation should be as general and permissive as possible. I have intentionally said the Secretary of State “may” rather than “shall” issue guidelines in relation to this.

To what extent is the Minister’s department aware of the way maintained schools generally deal with the whole school discipline policy? Where do they think it is going wrong and why? I beg to move.

We have Amendment No. 69 in the group. We agree with the objective of the noble Lord, Lord Elton, but noble Lords will notice that there are a number of differences between his amendment and ours. In particular, ours is flawed and his is not, necessarily. We are of course aware that schools no longer have to provide a yearly report to parents, much though we perhaps wish that they should.

We did not simply add our names to the noble Lord’s amendment because his refers only to schools. Given that many of the young people at whom this Bill is aimed will not be studying at schools, our amendment talks of “educational institutions”. Some kind of democratically elected mechanism to provide the management of the school with the voice of the students is just as relevant and appropriate in FE as it is in schools. We would like to see something like the noble Lord’s amendment in the Bill but referring to educational institutions as a whole and not just schools.

We also hesitated to be too prescriptive about the way in which the voice of the students should be collected, although I am encouraged by the wording in the noble Lord’s amendment, “or other collective mechanism”. We devised our own amendment that did not specify a school council because we did not want to be too prescriptive; we wanted to give schools the opportunity to be creative and respond appropriately to their own circumstances, devising their own ways of gathering students’ views, and to put pressure on them to do so by giving them a duty to report on it. We felt that the most appropriate people to report to would be the parents and the local authority. In doing so, of course, they would report to their own students and would be accountable to them as to how they were reflecting their views. The elements that we believe are the most important are that we are not too prescriptive, that the voice of the student should be collected in a democratic and appropriate way and that the matter should apply not just to schools but to other educational institutions to which the young people of the age group we are referring to might go.

As my noble friend Lord Elton has explained, the proposed new clauses would create a statutory right for pupils to participate in decisions that affect them by introducing a new duty on schools to have due regard to the views of pupils and for each school to have a school council or another form of collective mechanism.

I know that CRAE, the Children’s Rights Alliance for England, has supported such a move to give children a voice. I agree with my noble friend’s remarks on the desirability of setting up such a mechanism. As I understand it, the introduction of a statutory basis for school councils in Wales in 2006 has been monitored by Estyn, the body responsible for school inspection in Wales. Estyn considers that the regulations have,

“enabled the participation agenda to make progress and gain support quickly in schools”.

That fits neatly with the issue that we have all been raising in the Bill about how crucial it is to engage children at an early age to stop them becoming disaffected with education, which leads to such depressing truancy rates and total disengagement later on. Part of that engagement process will inevitably mean listening to young people’s views and taking them into account when making decisions that affect them.

However, I sound a note of caution, just as the noble Baroness, Lady Walmsley, did. It may not be the best course of action to be too prescriptive. We think that it is best left up to schools, not central government, to decide on the best way to engage their students. But we sincerely hope that in sharing best practice, schools will see the relevance of thriving, dynamic school councils. The noble Baroness makes another valid point about educational institutions.

I assume, and I am sure that the Minister will tell me if I am wrong, that this must be an area that Ofsted looks at. Presumably, it could recommend setting up a school council if it felt that the school was failing to consult with, or listen to, its pupils.

I support the sentiments behind both these amendments. What is slightly worrying me is whether this would apply to all maintained schools. I am thinking of academies, which have a certain amount of freedom—not to select parent governors, for example—and their own ways of running things. Although that may not have any application regarding a council representing the views of students, equally it may. Would there be anything to impede a maintained school acting in this way?

The Government are a strong proponent of the value of school councils for all the reasons set out by the noble Lord, Lord Elton, in terms of the systematic engagement of pupils in issues affecting the good conduct of the school, not least issues to do with discipline, behaviour, bullying and attendance. We do not want to regulate by statute in this area for the reasons set out by the noble Baroness, Lady Morris, but we have given strong encouragement. I personally commissioned Professor Geoff Whitty two years ago to report to the Government on the issue of a pupil voice and participation. His report, which was published last September, sets out practical recommendations for how schools, including primary schools, can set up councils more effectively. Most primary schools now have councils—it is not simply secondary schools. To take up the point raised by the noble Baroness, Lady Walmsley, it also sets out other methods of engaging pupils in decision-making; for example, in consulting on behaviour policies in schools, and not simply by the more formal means of school councils.

We support strongly School Councils UK, a voluntary organisation which provides guidance and assistance to schools in setting up councils, and we have just published new guidance entitled Working Together: Listening to the voices of children and young people on the whole range of issues to do with promoting a student voice in schools and the benefits of it. This is statutory guidance for schools. It has a section on young people and school councils which says:

“Among schools pupil or school councils are prized as a means of giving pupils a voice, developing their personal and social skills, enhancing the Citizenship curriculum and promoting the development of a school as a community. These councils can take many different forms in terms of their constitution and remit. To be effective, however, a council does need clear links to its school’s senior management team and governing body, as well as mechanisms for involving all pupils in its work on an ongoing basis. This could include the use of a year group and class councils alongside a whole-school council”.

And so it goes on. So there is a document which sets out advice and guidance in this area.

As I say, we do not want to be unduly prescriptive. We believe, though, that the systematic engagement of pupils in decisions that affect them in the management of the school—and there is none more important than the managing of behaviour and, in particular, how schools address this vexed issues of bullying—school councils can have an important part to play and we have been active proponents of them. We do not think, however, that in primary legislation we should prescribe a rigid template for how school councils should be organised.

The Minister has concentrated his remarks on the way in which the Government have encouraged school councils. Will he say something about the duties of further education colleges to consult their students?

We similarly encourage them. All colleges that I am aware of have student councils which play an active role in engaging with the management on issues which affect students. I virtually never visit schools now—certainly not secondary schools and very few primary schools—that do not have a school council, or indeed colleges. It is now quite normal when I visit that one of the presentations made to me is by the school council. They are usually impressive and show a maturity on the part of the pupils who are engaged in this process that is commendable and a testament to the important and productive work that has taken place in this area in recent years.

Every academy that I have visited has a school council. Academies seek successfully to engage students in their learning and in the management of decisions which affect them and are every bit as committed to the promotion of the voice of students, including school councils, as other schools.

I shall clearly have to read Professor Whitty’s report and the new guidance. I hope that therein I shall get some inkling of what the effect of schools councils is and how it is that the whole-school behaviour policy seems, in judging by the output, not to be working in quite a large proportion of schools in England and Wales. I may be merely pessimistic. I am getting to the age of pessimism, I suppose. I hope that the noble Lord will at a later stage be able to enlighten me about this.

As to my amendment being prescriptive, I should have thought that schools councils, or other similar collective mechanisms, really could not be called that by any stretch of the imagination. I have sought to make the ministerial intervention pretty limited but I am grateful to noble Lords for their contributions. I cannot promise not to return to this on Report but in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61A not moved.]