This is a probing question on a serious problem. In the light of the Government’s track record on data security, what safeguards will be in place to ensure that this information will be passed securely between government departments and devolved Administrations? I should perhaps give the noble Baroness warning that all my points will be questions.

Will this information be disaggregated so that only information for Wales is passed down to the Assembly? How will that process be undertaken? I am, of course, wearing my Welsh hat. What limits are there on what information can be passed down? Who will it apply to? Does this cover people living in Wales or those who were educated in Wales or have lived in Wales, but have now moved across the border? How will the Government ensure that the information is kept anonymous? Will the Minister give examples of how this information will be used? Finally, what legislative authority is the Secretary of State using to pass information on individuals’ benefits, income tax and tax credit status to Welsh Assembly Ministers, as proposed in these clauses?

I hope to reassure the noble Lord in responding to his questions, but if I have not answered him fully by the end of my remarks, I will write to him and circulate my response to Members of the Committee in case others are interested as well. In considering these very technical clauses, it may be helpful if I set out why the Government believe that data on benefits, learning and employment need to be shared between Whitehall departments and the devolved Administrations.

In the past, the biggest barrier to full employment was a shortage of jobs, but today and tomorrow it will be the shortage of the right skills that will lie between us and our goal of employment opportunity for all those we seek to serve. The Government are determined to help people get back into work and help them get on at work so they can build a good life for themselves and their families. As we all agreed in discussing the new rights to training established in Clause 71, having the right skills is crucial to achieving this goal. But too often in the past there have been unhelpful gaps between the support provided by Jobcentre Plus and that provided by colleges.

On 12 June, the Secretary of State for Innovation, Universities and Skills and the Secretary of State for Work and Pensions launched Work Skills, the Government’s next steps in the integration of welfare and skills services, to ensure they can respond to the needs and ambitions of both employers and individuals. This underpins the shared objective between my department and the Department for Work and Pensions of moving more people into sustainable employment and progression. The command paper sets out the steps we are taking to radically improve how our work and skills services are delivered. At the heart of this approach is a commitment to join up employment and skills services to make them more effective, and this is the key point. It means personal skills accounts to improve access to skills support, information and advice. It also means better advice on training, careers and job opportunities, with skills health checks to assess individual skill needs against job requirements and personal aspirations.

Alongside this, Jobcentre Plus and the Learning and Skills Council and learning providers will work more closely together to ensure that benefit customers who need help with their skills are given what they need to get jobs, stay in work and progress in their skills and careers. If we are to make this joined-up approach work, it is clear that we need to do more than simply measure job outcomes and training outcomes in isolation. We need instead to know how well our programmes are doing in helping people off benefits and into sustainable employment, with continuing progression as they improve their skills in work. Currently, the Government do not have the necessary information to do that. The limited and tightly restricted sharing of data between researchers in government departments and the devolved Administrations in Wales and Scotland established by these clauses will make that analysis possible. These clauses provide for measuring the outcomes of the policy we have been debating.

The information to be shared under Clauses 72 to 76 and the subsequent analysis will ensure that researchers are able to determine whether the qualifications and skills being achieved by adults are economically valuable. By economically valuable, I mean that individuals completing their learning achieve some increase in their employment chances and/or their wages over the medium to long term; that is, a measurable outcome in terms of improved salary or progression in work. As a result, the Government will be able to ensure not only that taxpayers’ money is being spent effectively, but also that these individuals are being helped to get a good job and improve their standard of living.

The effect of this Bill in relation to the sharing of data is very specific. During consideration in another place, my honourable friend David Lammy, the Parliamentary Under-Secretary of State for Innovation, Universities and Skills, tabled a number of technical amendments to these clauses to improve the drafting and bring greater clarity about the information that can be disclosed and used. Clause 72(4) now makes clear the purposes for which the data can be used and disclosed. These are strictly limited to evaluating and assessing the effectiveness of education and training policies and social security or employment policies as they relate to education and training. I can reassure the Committee that the departments could not use the information in an operational context to pursue individuals. This information is not about Connexions and the sharing of knowledge, which dominated much of the debate earlier in Committee; this is about research into the effectiveness of policies.

At the point at which data will be used by researchers, items which might explicitly identify individuals will be removed. So we are talking about anonymised data. Clause 75 creates a new offence for the wrongful onward disclosure of data. Any onward disclosure of information outside the departments or the devolved Administrations concerned without lawful authority would be an offence. In addition, any disclosure of the data for uses other than those set out in the clauses without lawful authority would be an offence, as would disclosing data where identities are discoverable. It is a very high test. The new offence created through the Bill would sit alongside any new sanction for the most serious breaches of data principles on which the Government have agreed to consult following the recommendations of the Poynter review.

Without the specific data sharing set out in the Bill, we will not be in a position to target government funding effectively to improve learning outcomes and employment prospects. Alternative methods such as destination surveys are prohibitively expensive and, given that the Government hold the data, we think this is the right approach. So, given the safeguards that are in place and the better informed debate that all those interested in these matters will be able to have, I hope the noble Lord will feel able to withdraw his objection to the clause standing part of the Bill.

I have a helpful diagram here. What will happen is that the departments will have their own non-anonymised data, for which they are responsible, and these will be passed to the DWP, which will carry out the anonymising. The DWP will then pass them back to the departments for the analysts to work on the data in an anonymised form for research purposes. The devolved Administrations, for example, will be able to receive data on a range of issues but they will not be able to see the individual to whom the data refer; they will know only that it is a recipient of training who has or has not progressed as a result of an investment made in their training. It is very much a resource for government researchers to track carefully the value of the investment that has been made in the education and training to which we are committing. With that explanation, I hope the noble Lord will feel able to support the clause.

I thank the noble Baroness for her response, the latter part of which was of more note. When one first looks at Clauses 72 and 73 one is quite horrified. Clause 72 states that the personal information within subsection (2),

“is about an individual who has attained the age of 19”,

and that it is held by the Secretary of State for whatever purposes he wants. It states that the information can be devolved to almost any authority he so chooses. We, of course, are not party to what information might be supplied. The noble Baroness said that the data can be anonymised, but I wonder what that will cost and how thorough it would be.

Clause 73 states:

“The Commissioners for Her Majesty’s Revenue and Customs may disclose information relating to income tax or tax credits to a person for use in connection with the exercise of an assessment function of the Secretary of State or a devolved authority”.

That is not in the true democratic spirit of the way in which we like to run this country. As the noble Baroness knows well, in Wales there are all kinds of authorities—the Assembly, its various sub-groups, its committees, and the local authorities, who will presumably be involved in this at various stages and times.

I shall withdraw my objection now and I will study the matter further, but the noble Baroness and her Bill team need to have another look at this issue with a critical eye to give the people of Wales and myself, among others, confidence that personal data cannot be bandied about as government departments think fit. I shall withdraw my amendment today, but I will almost certainly return to this issue.

There is no amendment to withdraw; we are debating clause stand part, so I feel that I can continue without objection. I say to the Minister that, when she sends out the powerfully convincing document that she will need to head off difficulty later on, it would be helpful if she explained what is meant in the Bill by “a devolved authority”, because it calls up to the lay reader an amorphous body of people with a Parliament and an Administration. Presumably somewhere there will be a definition clause that says who within the devolved authority is entitled to have the information, otherwise my noble friend and I will not be at all reassured by anything else that she says.

According to the page that I am on, the devolved authorities that we are talking about are the Scottish Ministers and the Welsh Ministers. I am getting a nod from the Box.

That means the equivalent of the Secretary of State in a devolved authority. Is his or her power to transfer the data further similarly limited, or is it out of the bag once the information is given to them?

I do not think that it is out of the bag; I think that it stays with the Welsh and Scottish Ministers. I will have to clarify that.

Clause 72 agreed to.

Clauses 73 to 76 agreed to.

Clause 77 [Independent educational institutions]:

On Question, Whether Clause 77 shall stand part of the Bill?

This group of amendments and clause stand parts looks dauntingly large, but I will keep my comments as succinct as possible. I will speak to the group as a whole, because the real issue is that Part 4 as it stands diminishes the value of the Bill. I will not be moving our amendments among Amendments Nos. 214 to 225 and 233 to 235.

Since we raised these issues at Second Reading, the Minister has taken great care and a good deal of time to look again at the Government’s proposals, for which I am enormously grateful. I know that the noble Baroness, Lady Walmsley, is, too, and I thank her for supporting these amendments. I hope that we will all be able to reach an agreement that is satisfactory.

The first issue is the registration of independent schools. The Bill would transfer the registration of such schools from the DCSF to Ofsted. The logic and thinking behind that proposal do not seem to match up to any real need for such change. The Bill was published before the consultation process was complete and much of the consultation seemed to be based on misunderstanding. The streamlining of this operation presumed that Ofsted already played a major part in the life of independent schools, yet it inspects only two out of every 10 such schools. The Independent Schools Inspectorate will continue to inspect schools that are members of the Independent Schools Council, an umbrella organisation for nearly 1,300 schools that educate about 80 per cent of pupils in independent schools in England, but Ofsted, rather than the Secretary of State, will, under the Bill, become responsible for regulating the whole independent sector.

The current position is that regulation and inspection are separate. This position should be maintained, as it prevents an inspector from taking a regulatory decision that may be based on a flawed inspection. As the system stands, the responsibility for the regulation of independent schools rests with the Secretary of State, who is, of course, directly answerable to Parliament. The proposals were not sought by any of the parties involved; they seek to solve a problem that does not exist and they will add only confusion and disruption to a system that works very well.

The second issue relates to Section 347 schools, which deal with pupils with special educational needs. The Bill will change the existing regime, whereby the Secretary of State approves Section 347 schools, to one with increased local authority involvement. However well intentioned these proposals, I am concerned that in practice they may have a detrimental effect on the provision of education for children with special needs. First, if approval is to be replaced by de facto approval by local authorities, there is a risk that the local authorities, with so many other responsibilities and demands on their budgets and attention, will simply lack the resources to carry out effective assessment of the school, as well as the suitability of the individual placement. Secondly, this extra duty to inspect schools may end up making extra demands of schools that will adversely affect their independence and increase the costs of compliance.

If the abolition of approved status is allowed to go through, special schools will lose their hard-won kitemark of approval. As a result, if parents are forced to appeal because they cannot get funded placements for their child from the local education authority, the local authority may be able to cast doubt on the school’s ability to meet needs appropriately. The school will no longer be able to point to its departmental approval status. The upshot is that even fewer parents will have any chance of getting a place for a child with special needs. I fear that this is another area where government intervention will end up being counterproductive to the original intention.

Finally, I should be most grateful if the Minister could clarify why the Government have chosen to define independent educational institutions so narrowly under Clause 77 so that an institution that provides part-time education for one or more pupils is caught. I recognise that the Government must be able to set certain standards and therefore be able to define who must meet them; that is in all our interests. The Minister must recognise, however, that there are some instances in which detailed government regulation is an unnecessarily intrusive burden.

We have a number of questions on which I hope that the Minister will be able to reassure us. Does the home schooling of this year’s 14 year-old Wimbledon star, Laura Robson, which enables her to concentrate on her tennis training, merit the same treatment as an independent school? What exactly is the position on including lunchtimes and religious worship as time spent in education for the purposes of Clause 77(2)?

I have tried to summarise the main points of contention that we have with Part 4 as succinctly as possible, without dealing too fleetingly with the issues. I have tried to avoid going into too much detail on all the provisions that it contains, because the Minister knows that we have problems with the totality. As I said, the noble Lord, Lord Adonis, has listened to our concerns with understanding since Second Reading and I know that he has been looking closely at Part 4.

The OECD recognises that our independent education sector provides the best education in the world. There is currently an excellent working relationship between the sector and the department. The Minister has done much to break down the barriers between independent and state schools, so I hope that he accepts my criticisms as constructive, for that is how they are intended, and can accept whatever help we are able to give on restructuring this part of the Bill.

Would the Minister like to speak to his amendments in the group before I make my contribution?

I have given a good deal of attention to Part 4 following the concerns raised by the Independent Schools Council and by your Lordships, particularly the noble Baroness, Lady Morris, with whom I have been in frequent communication on this subject.

Much of Part 4 is non-contentious, but three concerns have been raised: first, the proposed transfer of the registration and regulation of independent schools from my department to Ofsted; secondly, the proposed new statutory standard relating to leadership and management; and, thirdly, the proposed repeal of Section 347 of the Education Act 1996. Having considered these three concerns, I believe that I can meet them all to the satisfaction of the Independent Schools Council and, I hope, to the satisfaction of the Committee. Let me take them in turn.

First, on the registration and regulation of independent schools, having taken a long, hard look at the best estimates that we have of the cost savings from the proposed transfer of functions to Ofsted and balanced those against the potential disruption to the sector that would be caused by the transfer, I have concluded that the case for change is not compelling. Moreover, the role of my department in relation to independent schools carries confidence, which for a regulator is a precious commodity not to be squandered lightly. I shall therefore bring back amendments on Report to Part 4 to require the Secretary of State for Children, Schools and Families to continue to maintain the register of independent educational institutions. My department will also continue to approve non-maintained special schools under Section 342 of the Education Act 1996.

Secondly, I turn to the proposed introduction for independent schools, through Clause 79, of a statutory standard for leadership and management. Having spoken to the Independent Schools Council and the Independent Schools Inspectorate about this, we have agreed that the detailed standards which will be set out in regulations will be modelled on the Independent Schools Inspectorate’s own inspection framework. The ISC has confirmed to me that it would be content with a regulation drafted in that way—and I believe that that meets the second concern.

Thirdly, on the repeal of Section 347 of the Education Act 1996, the section provides for independent schools to be approved by the Secretary of State for the placement by local authorities of children with special educational needs. When an independent school is not so approved, the local authority must seek consent from the Secretary of State to place a child with special educational needs in that school. When the legislation was enacted, it was intended as a means of protecting the most vulnerable children with special educational needs. The introduction of the independent school standards in 2003, which all independent schools have to meet, has seen a marked improvement in the standards that apply across the board in the independent school sector. Indeed, the standards against which all independent schools are judged are now at least as robust as those set out for approved schools.

The requirement to seek approval, which marks out this separate category of schools, is therefore an unnecessary legal and bureaucratic hurdle, which fulfils no function in providing additional safeguards for children with SEN over and above that provided by Ofsted inspection. Similarly, the requirement for a local authority to seek consent from the Secretary of State to place a child with a statement of SEN in a non-approved independent school is an unnecessary administrative burden. In the past financial year, 772 requests were received for consent from the Secretary of State to place pupils in non-approved independent schools; over 90 per cent of requests for consent were granted.

The existing system is overly bureaucratic. We estimate that removing the requirement for authorities to seek consent will save more than £120,000 per year and it will also help parents wishing to appeal to the Special Educational Needs and Disability Tribunal by removing the need for them to obtain enabling consent from my department before their appeal can even be heard by the tribunal, as is the case at the moment. However, I completely understand the concern that, in removing this bureaucratic procedure, we should not introduce new red tape in the provision of information to local authorities and parents about the SEN status of independent schools. I know that has been a concern, but there are a number of ways in which we will ensure that it does not happen.

After the repeal of Section 347, local authorities will remain under a duty to inform parents with information about non-maintained special schools. At present, this duty also requires them to inform parents about the SEN suitability of schools approved under Section 347. In future, the duty will extend to all independent schools that cater wholly or mainly for pupils with SEN. That constitutes a duty to inform parents about an additional 343 schools.

Perhaps the Minister could write to me about those issues.

I will happily do so, although I have dealt with the substance of her points.

I was right to postpone my comments because it was clear that the Minister had made some important decisions and that there was no need for me to add my voice of persuasion to the eloquent introduction by the noble Baroness, Lady Morris of Bolton. Those on these Benches very much welcome the Government's change of heart. We particularly welcome the fact that parents and local authorities will get more information and that some of the bureaucracy will be taken away without doing things that were unnecessary and, from what the Minister said, would not have saved much money anyway but which could have been quite deleterious to the whole system of independent special schools.

I have one question for the Minister. The list that will be produced either through Teachernet or Ofsted will be refreshed for every school every three years when there has been an inspection and there is information to add. Will that be adequate for local authorities so that they will not need to make any further inquiries that might impose a burden on schools? Will local authorities consider that list to be fresh enough with the information that it provides about the special ability of schools to deal with certain children from their area?

It aims to give them the information that is available through the conferring of approved status, but it may well be appropriate for local authorities to make further inquiries, and possibly visit, to judge whether the school is suitable to meet the needs of the child in question. However, that applies at the moment in respect of Section 347 schools, so there is no change in that respect.

I thank the Minister for that response. A visit to ensure that the school is appropriate is desirable and will clearly not add an additional burden. I am very content with the concessions that he has made. I thank the noble Baroness, Lady Morris, for her powers of persuasion. The Minister knows that we were as one on these issues from the beginning.

I share the welcome that my noble friend gave to the noble Lord’s proposals. However, I have a procedural point in mind. If, as I understand may be the case, the noble Lord will bring in a fairly substantial amount of letter-press, as it were, to insert in the Bill, he will realise that it will not have had Committee stage scrutiny. If it is fairly large, we may need a procedural device, such as a recommitment, to look at the detail of what he proposes, which will not have been seen before. He might like to bear that in mind between now and October.

My understanding is that a lot of what the Government will bring forward will simply constitute a deletion of the existing part. I congratulate the Minister on his triumph of common sense and thank him for what he has done.

I echo that sentiment. This is a thoroughly good set of decisions. The noble Lord said that some 770 applications were made last year, and that 90 per cent were accepted. Why did the department turn down the others?

Because they were not suitable. However, I shall seek to provide the noble Lord with more refined information, if I can.

If it is a matter of deletion and there is no question of recommital, I shall be even happier than I was previously.

I thank the Minister. I now realise that I spoke so succinctly that I completely omitted to mention leadership and management. However, I need not have worried as he is brilliant at answering my concerns and non-questions. I am very grateful to him for recognising the standard of leadership and management in the independent sector. I am delighted that the registration of independent schools will stay with the Secretary of State. I am enormously grateful to the Minister for his hard work in this area. He and the Secretary of State will have won the gratitude of the entire independent sector for their willingness to listen. I fully accept, and am greatly reassured by, his comments on Section 347 schools. I thank him again for persisting with a matter which, if not addressed, would have altered the dynamics of a relationship that works well. That can only be good for all the children in this country.

Clause 77 agreed to.

Clause 78 agreed to.

Clause 79 [Independent educational institution standards]:

[Amendments Nos. 213A to 214A not moved.]

Clause 79 agreed to.

Clause 80 [The register]:

[Amendments Nos. 215 to 218 not moved.]

Clause 80 agreed to.

Clause 81 [Unregistered independent educational institutions: offence]:

[Amendment No. 219 not moved.]

Clause 81 agreed to.

Clause 82 [Unregistered independent educational institutions: inspection]:

moved Amendment No. 219A:

moved Amendment No. 223A:

moved Amendments Nos. 223B and 223C:

moved Amendment No. 225A:

I am afraid that I cannot support the noble Baroness’s amendment. Our education system is based on the principle that parents have the responsibility to make decisions for their children until those children reach the age of 16. It is they who decide what sort of school their children go to; it is also they who may take the decision, if they deem it necessary, to allow their children to opt out of religious education or worship. I see no reason to overturn that principle. To say that some children are mature and capable enough before they are 16 to make a decision on matters of conscience may very well be true, but I am worried about how such a decision would be arrived at in practice. Who would judge the child to be so mature and capable, and who would guarantee that the decision to opt out was based on considered matters of conscience and belief and not a mischievous attempt to avoid certain classes or acts of worship?

I share my noble friend’s discontent with these amendments. I do so, in part, as a former teacher. I am picturing the extreme difficulty of having a class of children, all roughly the same age, and determining that some of them need not come to school assembly and others might. First, that would be an extraordinarily difficult choice to make. Secondly, it would be extraordinarily difficult to know how to communicate it, particularly to those who were denied the luxury of opting out, as they would see it. Thirdly, the ability to opt out would clearly be regarded as a terrific prize; those who opted out would therefore be setting the norm for the rest, so that opt-out would eventually become what everybody did as soon as they were able. This must be thought through a great deal more. At the moment, however, I cannot give it any sympathy.

I recognise that Article 12.1 of the UNCRC says that the views of children should be given weight according to the age and maturity. That does not mean, however, that the weight should be such that the normal procedure of the school should be changed in this way. As to the noble Baroness’s little expedition into the future of religious education, it deserves much closer study but is not a suitable matter for incorporation into this legislation.

The provision for a daily act of collective worship in schools dates back to 1944. All pupils must take part unless withdrawn by parents. In 2006, after much discussion with the noble Baroness, Lady Walmsley, and other noble Lords, we introduced an amendment to allow post-compulsory school-age children in maintained schools to opt out of collective worship without the need for the consent of their parents. She welcomed that change at the time. These amendments, however, would extend our proposed right for sixth-formers to withdraw to all competent pupils and would allow them to opt out of religious education as well as collective worship. This is a step too far. We had a long debate on this issue on 17 October 2006 during the passage of the Education and Inspections Act. The Government’s position has not changed since then.

On the Gillick competence principle, I said then and repeat now that, while Gillick competence is a relevant consideration, competence does not necessarily arise all at once, nor does each pupil become competent at the same time. Different people develop at different rates. The noble Baroness recognised this in her remarks, but the need to balance the Gillick competence test with the need to deliver a practicable and workable solution for schools, so that they can function effectively, requires the maintenance of the status quo.

Assemblies and collective worship are important elements of school life in establishing their ethos and collective character. It is therefore right that those under 16 continue to be required to take part unless their parents specifically wish otherwise, and the arrangements described by the noble Baroness would simply not be practical in a school setting. The status quo strikes the right balance, and we do not intend to propose further changes.

Religious education is a distinctly different issue relating to the curriculum in schools, as the noble Baroness recognised. I notice that she was not against compulsory religious education in schools in principle; her issue was with the content of that religious education and the extent of the age range across which it was compulsory. It is appropriate for schools to impose reasonable curriculum requirements across their age range, including in religious education. Àpropos her remarks, I simply note that there is now a non-statutory national framework for religious education which seeks to ensure that it constitutes a broad and balanced understanding of religion. More local standing advisory councils on religious education are now adopting syllabuses based on the framework. We welcome that development, but there is currently no case for changing the law.

It occurs to me that the noble Baroness has not alluded to the fact that she is taking from parents the decision at which point the child should be released from their supervision in this respect. She has mentioned nothing about what parents will think about suddenly finding their 14 and a half year-old child taking this little bit of his life into his own hands.

I am most grateful to the Minister for his reply and for everyone who has commented. If my amendments did somehow find their way into the legislation I would not expect there to be large numbers of children seeking permission to opt out. If it meant a serious discussion with the vicar, priest or head teacher about deep issues of religion, philosophy, and so on, and the child being seriously questioned about what he or she thought and why, I do not think that too many children would want to go through that unless they seriously felt that they wanted to opt out. I cannot see it resulting in a mass opt-out.

Assembly is fairly easily dealt with. The religious element could be done at the end, and the other children could do something else or go straight to their next class. Many schools do not do collective worship in any case. They vote with their feet. In response to the noble Lord, Lord Elton, my five-point plan was there to explain my position on the amendments, rather than an expectation of how parents would consider them. I must clarify—the Minister understood this—that I am not against religious education. I feel that the role of teaching that any religion is the one true one should not be done in the classroom; that should be done separately.

It is important for social cohesion for all children to know that Christians do not have horns, and nor do Muslims or Hindus, but that we are all people. Learning about what different people believe and how it affects their culture is a very good thing for all children.

On the question of when parents lose control of their children, I have carefully kept in the parental opt-out, so that parents have the opportunity of opting out the child. However, if the parents did not feel inclined to do that, Gillick-competent children should have that right. Clearly, I am reflecting the comments of the Joint Committee on Human Rights.

I am disappointed that the Minister has not felt able to move any further forward as the time has now come to look again at the matter, which is why I have raised it. I will read his remarks with great care, but I may want to return to this on Report. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 225B and 225C not moved.]

Clause 127 agreed to.

[Amendment No. 225D not moved.]

Clauses 128 and 129 agreed to.

moved Amendment No. 226:

I support my noble friend. I suggest to her that if this amendment is smiled upon, at a later stage specialisms should be included as well as number and quality because a lot of special schools have great strengths in particular special needs. That needs to be reflected in the amendment.

I agree with a great deal of what the noble Baroness, Lady Morris of Bolton, said. Most special schools do a fantastic job. They are staffed by highly competent, professional, caring people and are wonderful and inspiring places. However, I do not agree with the noble Baroness’s solution. I am not in favour of a moratorium because local authorities need to be free to make their own decisions about the right provision in their area without having to have recourse to the Secretary of State.

In addition, subsection (2) suggests that consent should be given only if there are places at,

“nearby special schools in sufficient number and of sufficient quality adequately to replace the places at the closed school”.

It could be that the local authority has made such good provision in the mainstream with the support that the children need or in special units within mainstream schools to make it unnecessary to have every single one of those places available at another special school. The noble Baroness’s amendment would cut out the possibility of the mainstream coming up to scratch for children with special needs. That is the second reason why I cannot support this amendment.

Many children with special needs are failed in mainstream schools, and I am as concerned as the noble Baroness, Lady Morris, about that. However, many mainstream schools make good quality provision where young people with special needs are well looked after and their needs are met. I fear that this amendment takes away the possibility of that being the alternative provision.

I support this amendment. I have visited a number of special schools for children with special educational needs, and it was clear that there is a need for sufficient schools of this type around the country so that there is some choice for those who need this individual form of treatment. I do not see any signs of a diminishment of the need for these children to have that form of education. Under those circumstances, we should for the moment keep what we have got. I do not think we have the right answer yet, but the time for that will perhaps come a bit later when we are clearer about the future.

We had this debate on the Education and Inspections Bill, and I will say now what I said then. As Minister for special educational needs, I am a strong supporter of special schools and the right of parents to choose them for their children, where they can best serve their needs.

We believe that the precise pattern of school provision should be decided locally, but within a framework set nationally. That is the position in the law at the moment. In particular, we have introduced a new special educational needs improvement test—a new requirement on local authorities and other proposers to demonstrate, when proposing reorganisation of SEN provision locally, that alternative arrangements will lead to improvements in the equality and range of SEN provision.

Guidance on closing a maintained school accordingly states that when considering any reorganisation of SEN, including that which might lead to some children being displaced through closures or alterations, local authorities and all other proposers for new schools or new provisions will need to demonstrate to parents, local communities and decision-makers how the proposed alternative arrangements are likely to lead to improvements in the standards, quality and/or range of educational provision for children with special needs.

The guidance on the SEN improvement test also outlines the key factors that local authorities must take into account when planning changes to their existing SEN provision. They must identify the details of the specific educational benefits that will flow from the proposal in terms of improved access to educational and associated services, improved access to specialist staff and improved supply of staff. Local authorities should offer the opportunity for all providers of existing provision to set out their views on the changing pattern of provision. They should state clearly arrangements for alternative provision. The guidance makes it very clear that local authorities cannot arbitrarily close special schools. They must demonstrate that suitable—and, indeed, as an improvement test, better—provision is available as part of their plans. The guidance on the SEN improvement test makes it clear that:

“A ‘hope’ or ‘intention’ to find places elsewhere is not acceptable”.

Within the wider provision of special educational needs, special schools therefore have an incredibly important part to play in meeting the particular needs of some children. I want to make it clear once again that we support special schools strongly, including where it really matters: investment. We are investing £608 million in 76 local authorities not yet involved in Building Schools for the Future which, among other things, can be used to improve facilities for young people with special educational needs.

In conclusion, I note that the number of pupils in special schools has increased over the past two years, so they are clearly thriving under the present regime

I make no apologies for bringing the matter back again, because it is a most important issue. I thank my noble friend Lord Elton and will consider his comments.

I agree with the noble Baroness, Lady Walmsley, that many children with special needs are very well served in mainstream education, but all children and parents should have as much choice as possible. The noble Baroness, Lady Howe of Idlicote, said that we do not have the right answer yet, and I agree. I take on board what the Minister said and thank him for his response, which I will read carefully. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 130 to 132 agreed to.

We come once again to a Welsh element of the Bill and something that we are getting quite used to doing but have not got round to dealing with very well—what are known as framework powers. Chapter 1 of Part 5 produces framework powers for the National Assembly for Wales. The problem that “we” have with framework powers—and I use the word we because the Wales Office and the opposition Wales Office are working together on a lot of these things—is to ensure that they get adequate scrutiny in Westminster and to ensure, which we have not done yet, that the Welsh National Assembly has the competence to use the framework of the framework powers devolved to it.

Once again I have a number of questions for the Minister. How many independent schools in Wales will be covered by the clause? Will the changes involve setting up a separate inspectorate for independent schools or enlarging Estyn? What estimate has the Minister made of the additional costs of these changes, and what provisions are there in the Welsh budget to cover these costs? Will she clarify whether powers are being devolved to Estyn, Welsh Ministers, the Welsh Assembly, or perhaps all three?

Once again, we are being asked to produce framework powers when there is still consultation in this area. With these powers, it will be possible to create new criminal offences. Is there a list of the criminal offences that it is anticipated will be created under this proposal? These are the sorts of questions that we need answers to, and the sort of scrutiny that needs to be given to this type of legislation.

It is with great pleasure—for me, anyway—that we return to a debate about framework powers. I am almost starting to feel at home, getting closer to Wales every day.

As the noble Lord is well aware, the UK Government’s White Paper, Better Governance for Wales, which was published in June 2005, confirmed that,

“the Government intends for the future to draft Parliamentary Bills in a way which gives the Assembly wider and more permissive powers to determine the detail of how the provisions should be implemented in Wales”.

Framework powers of this kind were included, as we know, in the Education and Inspections Act 2006 and the NHS Redress Act 2006. This approach recognised that delegating legislative powers to an elected National Assembly for Wales was different from delegating to a Minister, and gave the National Assembly for Wales more discretion to implement Wales-specific policies. We are talking about the difference between delegating to an elected Welsh Assembly the power to make its own measures under the Government of Wales Act and delegating to an Executive. I think I am right on that—I am getting nods from my officials. The framework clauses are therefore about giving the Welsh Assembly the legislative authority to create made-in-Wales laws. I know that the noble Lord is well aware of that, so I hope he will forgive me for labouring that point.

The new clause will provide the National Assembly with the legislative competence to take forward its policies in the identified areas at the appropriate time and in the light of specific needs and circumstances in Wales. There are two new framework powers in Clause 133. The first is the regulation of independent schools in Wales. This will enable the National Assembly for Wales, by way of Assembly measures, to define the arrangements for the registration of independent schools, including rights of appeal, and to define and regulate the conduct of an independent school both in its educational provision and in its more general provision for pupils’ welfare. In light of the possible changes to Part 4 concerning independent educational institutions outlined by my noble friend, we will have to consider whether any consequential amendments are required to this framework power. If there are, we will bring them back on Report.

The second framework power concerns the inspection of the education and training of those aged 16 and under. This will include the inspection of independent schools, and will enable the National Assembly for Wales, by way of the Assembly measures that we talk about so much, to make provision for the inspection of education and training in maintained schools and in other settings, such as in the case of children with illnesses who cannot attend school. It would also allow the National Assembly for Wales to determine the inspection regime for the 60 to 70 independent schools in Wales. I am reminded that any Assembly measures brought forward will be subject to full consultation. It is proposed that the two new framework powers will be facilitated by introducing a new framework power in respect of the regulation of independent schools and in amending matter 5.15 so that it will encompass the inspection of education and training for those aged 16 and under. It amends a competency that already exists.

The policy areas of the proposed framework powers have been devolved and the functions conferred upon the Welsh Ministers. Functions are already exercised by the Executive. We are giving them the legislative competency as well so that they can make the laws that go alongside it. As such, there is already a distinctive approach to the inspection of education and training in Wales in relation to pre-16 inspection. For example, Estyn and Ofsted already have different remits, as the noble Lord has highlighted. Responsibility for the inspection of childcare and children’s social services taken on board by Ofsted is discharged in Wales by the Care and Social Services Inspectorate Wales, with Estyn focusing squarely on education and training.

At the operational level, inspection in Wales is based on the template provided by the common inspection framework which was developed in consultation with partners in Wales and implemented in 2004. While similarities with England remain, there are already significant differences in the overall approach.

I hope that I have answered a number of the noble Lord’s questions. Of course, any measures that come forward as a result of these framework powers will be subject to scrutiny and consultation by the Welsh Assembly. I believe that it has the competency to do that. The noble Lord asked important questions about cost, provision in the Welsh Assembly budget and what kind of offences might be created. All of that will be defined in the proposed measures and consulted on in Cardiff. The question is whether we should devolve this legislative competence, and I think that we should. This is an area where the Welsh Assembly Government have operated for some time with executive functions, and it is consistent with education being highly devolved. The noble Lord is right to give the Committee an opportunity to scrutinise this. I hope that he will feel able to support the clause.

On an optimistic note, there is an awful lot of amour propre in national Governments within our United Kingdom. I just hope that if the Welsh find things that they can do better than us, we will learn from them, as we might sometimes learn from the Scots, and not presume that what we do is always best.

Again, the noble Lord displays great wisdom in these matters.

I thank the noble Baroness for those explanations. We are getting clearer in our communications about these things. As she said, it is important that framework powers should be challenged and examined in detail in your Lordships' House and in the other place, where they do not seem to give it the same priority as we do. But that is their business and not ours.

I am slightly concerned about the ability to create new criminal offences, which must move us into a different ministerial area, such as the Home Office. To some extent I am repeating myself, but I wonder whether the noble Baroness and her team have given thought to what criminal offences might come out of this and how we will maintain control of it.

Perhaps I may remind the Committee that we have always been at pains to make it clear in our discussions on framework powers and devolution generally that no list of criminal offences will be subject to the measure. The hour is too late; I cannot remember the exact phrase. I will have to check the detail and write to the noble Lord. At the moment there is no list of criminal offences. This will be subject to the measure and the consultation that I outlined.

[Amendments Nos. 227 and 228 had been withdrawn from the Marshalled List.]

Clause 133 agreed to.

Clauses 134 to 136 agreed to.

Clause 137 [Meaning of “sixth form education” etc]:

moved Amendment No. 228A:

It is a rather novel approach for the Government to legislate on school admissions first and consult afterwards. While we may be prepared to accept it on this occasion, we hope that it does not become a habit.

I, too, wondered why the consultation could not have been undertaken earlier so that we could have known the result of it before Royal Assent.

There is a good reason. By doing it this way, we ensure that the draft code will be able to come into force from September 2010 rather than September 2011, but that is all dependent on noble Lords being prepared to grant these powers.

I do not quite follow that. The year 2010 is quite a long way off. Obviously I have missed something the noble Lord said.

Consulting now on the draft code would be in time for the admissions round which starts in 2010. If we had consulted after the Bill had become law, we would have to wait a year because the cycle of admissions is annual.

On Question, amendment agreed to.

Clause 137, as amended, agreed to.

moved Amendment No. 228AA:

I have some concerns about the amendment. The aim of the provision is, quite simply, to improve the behaviour of disruptive and unruly children. Pupils who misbehave in class, who lack discipline and who are disrespectful to their teachers and to other pupils cause disastrous disruption to the learning of their peers. It is essential that head teachers and the governors of a school are able to instil discipline and enforce their rules.

In undertaking this task, I am sure that they provide help, support and guidance. With Amendment No. 228B, the noble Baroness, Lady Walmsley, seeks to insert words which would have no discernable practical effect but would, none the less, water down the intention of the provision. For the sake of morale among teachers and fellow pupils alike we must avoid the temptation to micromanage what head teachers and governing bodies do and allow them to proceed in a way that they think is best in their schools.

This seems an interesting alternative to exclusion. Now you do not have to go through the whole difficult process of excluding a child; you just send them off to a PRU with no appeal. Is that how it will work?

Amendment No. 228AA seeks to add an explicit reference to referrals to off-site educational provision being for a temporary period and I am grateful to the noble Baroness, Lady Walmsley, for raising the point. It has certainly always been our intention that referrals to off-site provision to improve pupils’ behaviour should be only for a temporary period. However, it is not explicitly clear that this is the case and I am happy to look into this to see whether it would help to clarify the position further if we made changes to the Bill on Report if appropriate.

Amendment No. 228B seeks to define further the purpose of educational provision. We do not believe this is necessary. Clause 138 provides that a governing body exercising the power to require a pupil to attend off-site provision must have regard to guidance issued by the Secretary of State. It is the intention to issue guidance on the use of the power and illustrative guidance was sent to Members of the Committee on 1 July to show how the power is intended to operate. It states that schools should assure themselves that the off-site provision includes training to manage the pupils’ behaviour, and the referring school should outline the type of support the pupil requires when on the placement. As the noble Baroness, Lady Morris, says, the decisions in these matters, having regard to the guidance, should be made by the school.

Everyone so far has spoken as if the child is automatically going to a PRU and nowhere else, but the Bill specifically provides for a child to be sent otherwise than to a PRU—presumably, therefore, to another school, and if not another school then Clause 139(1)(b) provides for it to be treated as if it was. Where else might children be sent other than to a PRU?

In my experience, teachers have lots of ideas about where pupils should be sent.

Not all off-site educational provision is in the PRU category. I know that first-hand; I spoke recently to a number of local authorities that claimed not to have PRUs. I was fascinated, because I wondered how they provided for pupils whose behaviour required separate treatment. They have contracted-out or other arrangements with providers which may be able to provide specialist services in this regard, but which do not count as PRUs. My understanding is that that would be covered by these provisions too.

Could the Minister now, or at a later stage, tell us a bit about how those contracted-out organisations work in comparison to ordinary PRUs? I understand that they were a surprise to him; they are a surprise to me too, and there may be something to learn here.

I should be happy to write to the noble Lord setting out examples of the other providers which operate in this area. It may be, as he says, that there is more to learn from them. We recently published a paper on alternative provision and are seeking to take forward a range of pilot programmes for alternative providers which can either manage PRUs better on the current basis or make provision that meets the needs of those pupils better than existing PRUs do.

My experience is that the inventive local authorities have created a whole range of alternative possibilities—not necessarily PRUs at all, in answer to my noble friend’s question. Young people are sent off to do various kinds of community service and to join in camping activities, Outward Bound activities and so on. Many of those schemes work well, and I hope we will keep the wording as broad as possible in the Bill to allow for that kind of inventiveness.

Does this provision allow for a child to be sent to another school with a different specialism as its strength from the one the child is attending? It may simply be that the child needs to be fulfilled in an area where it has talent, rather than being left in a school that does not cater for that.

That is absolutely the case. Many children who do not thrive in one school may, perhaps after a period in alternative provision, thrive in a different school. We are seeking to provide strong incentives for schools to take pupils who have been excluded elsewhere, where they believe they have the capacity to meet needs better than they may have been met in the first school.

Presumably that would not be the function of the sending school, as it were, under these provisions; it would be for the local education authority.

That is correct.

I am looking at how this provision will be used. It will become an alternative to exclusion to quite a large extent, will it not? My understanding of the way that most pupils end up in PRUs is that they are excluded and then they go there, or to similar provision. This will allow a school to post an unruly pupil to a PRU whenever it decides that is right, without any right of appeal by the pupil so far as I can see. Not that I am disapproving of this; I am just trying to find out what it is. We will have a fast track to PRU or similar provision without going through all the current arrangements that are there for exclusion, appeal, argument and so on.

The noble Lord said that schools have to have regard to guidance. That is the weaker of the two ways of looking at matters. Presumably it means that schools can override the guidance if they so wish. What ultimate limitations are there on where schools can send pupils? Do they have to send them to a recognised educational establishment or can some retired army colonel set up a boot camp which is considered an appropriate place for sending them? In that case, they would still be at the school that they had been transferred from but would receive behavioural correction in some wild, wet moorland for as long as it took them to behave, as we see on television from time to time. Where are the boundaries under the clause?

The noble Lord has made a number of specific points. First, schools must have regard to the guidance which, as the noble Lord knows, is a very strong statement in education law. They take the actual decisions in line with the guidance but the guidance makes it clear that the provision must be appropriate and meet pupils’ needs. I would expect a local authority to be hot on the heels of any school that was not taking the guidance seriously if the parents themselves did not do so.

This is not an unrestricted power. We intend the regulations to require schools to conduct reviews every 30 days for all pupils who are sent off-site. No such requirement attaches to the existing power, under which pupils can be sent off-site for education and training in the secular curriculum of the school.

As I said in response to the noble Baroness, Lady Walmsley, we are considering very carefully her point about stating explicitly in the Bill the point that referrals under this clause should be temporary. That would also help meet the point about schools simply seeking to parcel pupils off to alternative provision because they cannot think of anything better and do not have proper regard for their welfare.

I am most grateful to the Minister for his reply and to others who have made very pertinent points. The noble Lord, Lord Lucas, in particular, pointed out that the provision about appeals does not apply to this kind of removal of the pupil. We worry that although the draft guidance may well be fine, schools sometimes abuse the powers given to them. We saw an opening for possible abuse in this power which is why we want to insert the word “temporarily”. I am most grateful to the Minister for saying that he will consider that carefully. We also want to emphasise the fact that the pupil needs support and help rather than banishment to somewhere or other, PRU or not.

The hour is late so I shall say no more before I withdraw the amendment.

Before the noble Baroness does so, let me say that the more we discuss how this will operate in practice, the more it interests me. Presumably parents would retain the right to withdraw a child from school if they disapproved of the posting. If the school had said that the child had to go to boot camp and the parents did not like it, they could just withdraw the child from school. They do not lose control of that process.

The noble Lord referred to provisions in existing law. I should be most grateful if he could point them out to me. I do not require the answer now but I would love to know so that I can study it before Report.

I do not have the detail of where the existing provision is, but I will write to the noble Lord.

In that case, I now beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 228B not moved.]

moved Amendment No. 228C:

My noble friend’s amendment would make it clear that the imposition of educational provisions to improve a pupil's behaviour must consult and inform that pupil. I have sympathy with his eloquent arguments. I certainly see the desirability of keeping a pupil fully informed of decisions being made that directly affect him. If such a pupil is kept aware of what will happen to him, there is probably more chance of him showing willingness to participate.

However, I sound one note of caution: the process of involving a pupil in such decisions should not be allowed to develop into a veto by the pupil. Consulting him is one thing but, as I said a few moments ago, we must not place undue obstacles in the path of head teachers and governing bodies who must ultimately have the responsibility to maintain acceptable levels of discipline in their schools.

I reassure my noble friend that there is no element of appeal in what I suggested. It is simply that when the decision is made, the child's views should be heard—I say child because that is in the United Nations convention. When we come to appeals, I have very strong views about not forcing schools to take back children whom they can neither control nor help.

I will deal with the points made by the noble Lord, Lord Elton, about who needs to be told what. It is not intended that regulations under Clauses 138 and 139 will require that the pupil or his representative be given information relating to the imposition of the requirement to attend off-site provision or be invited to any review. It is normal practice for all communications from a school about a pupil to go to the parents, especially when the issue concerns the pupil’s behaviour. That applies across education law. Parents have a responsibility to take part in managing their child’s behaviour and that is why it is the parents who are invited to the review. It is very likely that the pupil is made aware of the referral from the school, and virtually inconceivable that they would not be so if they are at an age and capacity where they can understand the reasons for the referral and expected outcomes. The parent—or pupil if aged 18 or over—will be able to participate in any review, which means that they can make representations and express their thoughts, comments or concerns about the placement.

In the draft guidance we said that a pupil under the age of 18 should be allowed to attend the review and speak on his or her own behalf if he or she wishes to do so. Governing bodies will be required to have regard to the guidance and I expect schools to use their judgment about whether it is appropriate for the pupil to attend the review meeting. That guidance will be subject to formal consultation after the Bill receives Royal Assent, and I am happy to circulate a draft copy to noble Lords now, if that would be helpful and would elucidate some of the points raised by the noble Lord, Lord Elton.

As far as decision-making is concerned, it is not intended that regulations will require the pupil to be part of the decision-making process itself. We expect the governing body to take any comments made by the parent or pupil into consideration when they come to making a decision about whether the off-site education should continue. Governing bodies are bound by law to promote high levels of educational achievement at school and I have confidence that they will be able to come to the right decision when reviewing an off-site referral. I hope that that goes some way to meeting the noble Lord’s concerns. On his point about the actual informing of the young person, what is set out in the Bill is within the normal practice of education law.

Does a school have the power to fund this placement, or will it have to look to the local authority to fund it?

That depends on what this provision means. At the moment, schools fund a good deal of provision for pupils in danger of exclusion or who need separate treatment. I have visited a wide range of in-school units that are now being pioneered by schools, some in conjunction with external partners of the kind that we discussed earlier. What they can fund will depend on the legal status of the provision. If it is part of their own provision, they can fund it. If it is not part of their own provision, the precise nature of the provision will determine whether they or the local authority funds it.

The noble Lord assures me that the child is always informed, and that he or she is usually heard. I am concerned—no doubt anecdotal evidence on this matter will be given to me in the recess—that in a large school the governing body, which may meet when the pupils are on holiday, will take decisions that are remote from a child. It may not hear from the child although I am sure that the teachers will. However, for the time being, I shall have to accept his reassurance. I hope that I shall continue to be reassured in October. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 228D not moved.]

Clause 138 agreed to.

moved Amendment No. 228E:

As the noble Lord, Lord Elton, has just pointed out, we have two amendments in this group, which between them do pretty much the same as he has very neatly done in his single amendment. Amendment No. 230A is about representation of pupils and access to information in the school exclusion process. Amendment No. 230B is about the right to appeal and access to advocacy in that process. Permanent exclusions have been reducing in number; however in 2005-06 there were over 9,000 cases of permanent exclusion, and there were 343,840 semi-permanent or fixed temporary exclusions. That is an awful lot, and that was an increase over the previous year.

Currently, children have no legal right to participate in one of the most significant and possibly damaging decisions affecting them. Although the Government have guidance that says all the right things, it is not enforceable. If the Minister is minded to accept either the amendment proposed by the noble Lord, Lord Elton, or our amendments, that situation would be corrected.

In October 2002, the UN Committee on the Rights of the Child, in relation to Article 12, said that the Government should,

“ensure that children throughout the State party have the right to be heard before exclusion and have the right to appeal against temporary and permanent exclusion”.

Noble Lords should note the word “right” in both parts of that sentence.

On Amendment No. 230B, the committee said in the same report that the Government should,

“ensure that children throughout the State party have the … right to appeal against temporary and permanent exclusion”.

It is very important that those children should have an advocate to speak for them, if they feel that they need it. An advocate is an independent person assisting the young person to make his or her voice heard. Advocates are able to interpret difficult technical jargon in a way that the child will understand. There are already precedents for this. Children currently have a legal right of access to independent advocacy when they are in care. If a 16 or 17 year-old lacks capacity to consent or protest, but has no one to speak to them, such as a family or friends when decisions about serious medical treatment are being made, they can have an independent advocate under the independent mental capacity advocate scheme. This can also happen when such children wish to make a complaint about the NHS.

Therefore, we are not suggesting something that has never been done before. It works very well and I know that the Government are convinced of the benefit of advocacy, because it can help to improve the quality of decision making. The cost might worry the Government, so perhaps I can set the Minister’s mind at rest. Save the Children estimates that it would cost just £133 per case or £147 in London, where everything is more expensive, to provide advocacy for a child going through an exclusion appeal. This investment may provide very good value for money by keeping more children in mainstream education and improving communication between teachers and children. The Government estimate that a place in a mainstream establishment costs £4,000 a year, whereas a pupil referral unit, where most permanently excluded children go, costs £15,000. Therefore, there could be a considerable saving if the child’s point of view was adequately and clearly put on his behalf by an advocate.

This does not necessarily undermine the head teacher’s ability to keep control in his school; it is just a matter of putting the correct situation to the panel of governors who consider it, rather than making any assumptions about what the child feels or has done. It is just a matter of fairness and simple justice. I can assure the noble Lord, Lord Elton, that if we do not get the answer that we hope for from the Minister, I, too, will be prepared to take this matter further.

I understand the sentiment articulated by my noble friend Lord Elton, which would allow pupils to participate in the exclusion process, because exclusions should be taken very seriously, and it is therefore right that the pupil is treated fairly. Therefore, I support part of the intention behind the amendments of the noble Baroness, Lady Walmsley.

I was very pleased during the debate on the previous amendment when my noble friend said that when a child was excluded he strongly agreed that the child should not go back into the school, because there is a wider picture, not just about the children who are excluded, but about the right of the other children in the school to a good education. One of the most important things that we must do if we are to make a success of extending time in education is to engage children when they are young so that they are enthused by learning. To engage them, it is necessary to have an enthusiastic teacher who can devote time and energy to children who may be struggling, and an atmosphere in the classroom which allows learning to take place. Sadly, poor pupil behaviour is the most serious problem preventing teachers doing their job and is one reason why most good teachers leave the profession. Classrooms in which students are disruptive are environments in which no one can learn. Some pupils feel that they can defy teachers with impunity, disrupt the classroom and make it impossible for the whole class to learn.

In many of the country’s schools, pupils cross the boundaries that define good behaviour. If we are to expect teachers to be able to maintain effective discipline, they must be able to resort to an effective deterrent—the threat of expulsion from the school. Yet head teachers frequently express their frustration that they have no ultimate deterrent and pupils do not take exclusions seriously, because excluding pupils on a permanent basis often turns out to be no such thing. Excluded pupils can appeal against the decision and often end up back in school. The right of appeal to an independent appeals panel administered by the local authority can be expensive, time-consuming and stressful for the head teacher. One in four appeals are won by the appellant and half of the children return to their original school. It is extremely demoralising for the whole school, for children and teachers, who find themselves unable to punish effectively some students whose behaviour may have been seriously threatening or upsetting. It causes continued disruption to the classroom and contributes to a decline in standards when children who have behaved so badly are allowed to continue with what they were doing, with the added triumph of having defeated the school’s authority when an appeal panel overturns a head teacher’s decision. I should like to see head teachers being allowed to run their schools effectively and for their rulings on serious disciplinary matters to be respected.

The noble Lord, Lord Elton, asked me how provision for excluded pupils had improved in recent years. I shall supply him in correspondence with the information that we have about the amount being spent in this area, which has improved dramatically. However, I can tell him that in recent years we have made two big changes, which have significantly improved the situation. The first is the requirement for full-time provision for pupils who have been excluded permanently, which did not used to be the case, and that has led to a very big increase in spending in this area. The second is the change that we made in the Education and Inspections Act that required local authorities to provide suitable full-time education for all pupils excluded temporarily from the sixth day of exclusion, as opposed to—I believe, from memory—the 15th day. Again, that has led to a significant increase in the quality and quantity of provision for pupils temporarily excluded. As I said, previously a requirement to provide for those pupils did not kick in until fully three weeks’ worth of exclusion had taken place.

Perhaps I may deal, first, with Amendment No. 230A in the name of the noble Baroness, Lady Walmsley. This amendment seeks to give a statutory right of representation and information to pupils of any age in their exclusion proceedings. We are sympathetic to the intentions behind the amendment and have given schools a clear steer in statutory guidance that pupils should feel involved in decisions that affect their future and that they should be heard wherever possible. This includes being consulted and being able to participate in the exclusion process, and we have put in place a series of safeguards to ensure that that takes place.

All schools are required to have a published discipline and behaviour policy in place setting out the standards of behaviour and sanctions for any breach. The exclusions guidance, to which by law all head teachers, governing bodies and appeal panels must have regard and which sets out in detail advice to head teachers on dealing with exclusions, gives significant weight to children’s participation. The guidance encourages head teachers, before excluding pupils, to inform them of the reasons for their exclusion and to inform them of the length of the exclusion, if temporary, or to say whether it is permanent, and it also encourages head teachers to give pupils the opportunity to have their say.

However, there are circumstances where it may not be possible for head teachers to question pupils and where it is imperative that they are removed immediately from the school site in order to ensure the safety of the other pupils in the school. Where pupil or staff safety is threatened, as, for example, in the case of a pupil carrying a knife or an assault on another person, it may not always be appropriate for the head teacher to speak to the pupil before removal.

Generally, the guidance encourages pupils to participate at all stages of the exclusion process, where appropriate, and with their parent’s permission. I understand that there are concerns relating to the wording “with parent’s permission” in the exclusion guidance, where the parent could refuse to allow their child to participate in the exclusion process. In the light of these concerns, we have committed to revise the guidance to remove this restriction. The revised guidance will make it clear that, as long as pupils are of an age where they can understand the process, they should be strongly encouraged to participate alongside their parents. This change will come into effect from this September, as we are currently revising the guidance.

Amendment No. 230B in the name of the noble Baroness, Lady Walmsley, proposes to give pupils of any age a right of appeal and a right to independent representation, possibly through an advocate. Placing new requirements on local authorities to arrange and meet the costs of independent advocates for pupils and parents who wished to make representations would place additional financial and administrative burdens on local authorities, which they would have to meet from within their existing resources. It would not be appropriate to impose this additional burden on them.

On the aspect of the noble Baroness’s amendment that would give pupils of any age the right of appeal, which is also covered in Amendments Nos. 228E and 230A, I note that Scotland and Wales have given pupils under the age of 18 a right of appeal themselves, not simply one exercised by their parents. Scotland did this in primary legislation in 2000, while Wales did so in 2004 in regulations. Both have imposed conditions relating to a pupil’s age and understanding. I shall reflect further on the Scottish and Welsh experience over the summer, taking up the injunction of the noble Lord, Lord Elton, that we learn from good practice in Scotland and Wales. The Government will consider the case for such a change in England.

Before the noble Lord, Lord Elton, withdraws the amendment, if that is what he intends to do, perhaps I may first thank the Minister for what he said about amending the guidance, which is a welcome improvement. However, it is still just guidance. The knife issue that he mentioned is pertinent but it could be addressed by an exemption to the legislation on safety grounds that gives the child the right to be heard without penalising all the other children by not giving them the rights that we are asking for. The Minister’s comments on the Scottish and Welsh practice are also welcome. I hope that he will enjoy his summer holiday by taking the Scottish and Welsh legislation to the beach with him along with his bucket and spade.

I had not intended that my amendment should draw us into the murky water of appeals; I share my noble friend’s reservations about that. It is a wider subject than I wished to broach tonight. I was enormously encouraged by the Minister’s comments on the level of full-time education provision for children excluded from school. I hope that he will be kind enough to drop me a line to amplify what he said about that exceedingly important provision.

The Minister referred to occasions when it is not possible for a head teacher to parlay with a knife-bearing child. I once had a knife drawn on me in a class, but the situation was resolved amicably after a few moments of cold, concealed anxiety on my part. I accept that there will have to be exceptions to the rule. However, I hope that the rule itself is not without its merits.

I do not suppose that the Minister is going to a beach for his holidays, but if he is, I hope that he enjoys it very much. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 139 agreed to.

[Amendments Nos. 229 and 230 had been withdrawn from the Marshalled List.]

[Amendments Nos. 230A and 230B not moved.]

moved Amendment No. 230C:

I rise merely to assure the Committee that my noble friend has the warm support of his Front Bench in moving his amendment. He has been, and continues to be, a remarkable advocate for the Gypsy and Traveller communities and he knows more about them than any of us. We would all do very well to listen to his wise words.

I welcome the aspiration behind this amendment. As the noble Lord, Lord Avebury, rightly pointed out, children from the travelling community have considerable educational needs and will often require special help from their local education authority to realise their potential. The local education authority already has, as it has with all children, a duty to provide them with a high-quality education. I support attempts to ensure that that happens.

However, I have a concern about this proposal—that it may become an exercise in ticking boxes, which would distract from the much more important job of providing a high standard for everyone in a way that recognises the different needs of individuals.

I begin by paying tribute to the noble Lord, Lord Avebury, for his tireless work to raise awareness of the issues facing Gypsy, Roma and other Traveller communities, especially in his role as president of the Advisory Council for the Education of Romany and other Travellers. I have been glad to meet him on several occasions to discuss its work and to participate with him in celebratory activities that mark the very good educational work and high levels of attainment of many young people in those communities.

I wrote at some length last week to Richard Solly of the Traveller Law Reform Project, dealing with a number of the specific issues that the noble Lord has raised. I see that I failed to copy the letter to him, but I will copy it to Members of the Committee, and will place a copy of it in the Library of the House, so that it is made available.

Some of the issues raised by the noble Lord about the need to provide adequate services to promote participation and proper advice and guidance, and not to take action about compulsion where there are reasonable excuses for non-attendance, have been covered in our previous debates. All of those parts of the Bill, which I have described at some length earlier in Committee, will also apply to young people in the categories to which the noble Lord referred. I think that that goes some way towards meeting his points about compulsion being inappropriately applied in respect of the Traveller communities.

However, let me say a little more about the work that we have been doing to boost educational provision for and attainment by the Gypsy, Roma and Traveller communities. First, as the noble Lord said, a good proportion of local authorities maintain a Traveller education support service. As he said, I have written to all local authorities to urge them to ensure that their provision is good in that area. Secondly, the Gypsy, Roma and Traveller achievement programme, one of a number of targeted programmes offered by the national primary and secondary strategies, was launched in 2006 and aims to improve the quality of provision, rates of attendance and standards of behaviour and thus raise attainment for Gypsy, Roma and Traveller pupils. Forty-seven schools in 12 local authorities are currently involved in that programme and a further 40 schools in 10 new local authorities will join the programme in the autumn of this year.

Thirdly, in February 2008 we published The Inclusion of Gypsy, Roma and Traveller Children and Young People. This document offers practical advice to local authorities, schools, pupils and parents on how to raise attainment among Gypsy, Roma and Traveller pupils.

Fourthly, since 2004 we have funded the e-learning and mobility programme, which has provided e-supported distance learning and home access to highly mobile Traveller pupils. Currently there are three strands to the programme. Strand A provides key stage 3 and 4 pupils with laptops and mobile internet access and a range of learning materials. Pupils involved in strand A are able to keep in close contact with their teachers and peers. Ongoing evaluation of the programme has shown that pupil motivation increases, achievement is improved and pupils reintegrate far more easily when they return to school.

Strand B, which began in September 2006, is a web-based learning environment for key stage 4 pupils who have disengaged from education—which is often the case in the Traveller communities. Although in its early stages, this strand has proved very encouraging and the majority of the initial participants have gained successful results in the first level of a wider key skills GCSE.

Work is currently under way to develop a third strand, which will deliver a robust learning agreement, a training programme for parents in the effective support of distance learning, together with guidance and support on the overall provision, supervision and monitoring of distance learning. Currently 50 local authorities are involved in strands A and B of the programme, providing direct support to almost 1,000 pupils. Applications for involvement in strand C indicate that a further 1,700 pupils will benefit from the programme.

I therefore hope that I have illustrated that we are doing much to support the education of pupils from the Gypsy, Roma and Traveller communities, but we accept that much more needs to be done by us and by local authorities. We continue to work with representatives of these communities to assess what else needs to be done to improve the education of pupils from these communities. This includes the education of pupils beyond the age of 16.

As I said in my letter to Richard Solly, officials from my department are working to set up a group drawn from these communities that will meet to discuss ongoing and future education policy and to ensure that specific challenges that may be encountered by Gypsy, Roma and Traveller pupils in these areas are addressed. It is envisaged that this group will meet twice yearly and will work to inform policy so that ascription and attainment among these pupils will be raised. It will also seek to institutionalise the kind of regular discussions that the noble Lord and I have had in recent years which have led to worthwhile improvements, although it is important that these improvements are embedded in the normal machinery of my department and local authorities.

I am extremely grateful to the Minister for his continuing interest in the problems of the GRT communities and in particular for his support for GRT history month, which I know at first hand. It was instrumental in giving enormous encouragement to the communities to become involved in more educational activities and, I hope, in increasing the level of attainment. I need to think about all the measures that he has described which are aimed at increasing the participation of Gypsies and Travellers in secondary education and onwards into education for 16 to 18 year-olds. The e-learning scheme that he described might be particularly relevant to that age group. I have seen it, and it looks as though it is working extremely well. Perhaps some of the skills that we know are particularly relevant to this community—in the case of women, the parenting skills that I mentioned—could be the subject of training programmes through the e-learning system, which would not require them to attend at a recognised place of education.

At this late hour, I will simply content myself by saying many thanks to the Minister. We are extremely grateful for all the interest that he takes in these communities. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 140 and 141 agreed to.

Clause 142 [Functions of Qualifications and Curriculum Authority in England and Northern Ireland]:

On Question, Whether Clause 142 shall stand part of the Bill?

My difficulties with Clause 142 stem not so much from what it does—not that I am clear what that is—but from the fact that it appears to tinker around the edges of the QCA when radical action is required. Extraordinarily at the moment, the QCA seems to have budded Ofqual, but Ofqual has no separate legal existence and nothing is being done in the Bill to give it one. Even if you try to find a button on the Ofqual website that says “About us”, which is a pretty common thing, it does not have one because there is no “us” to be about.

The QCA’s problems are, however, much deeper than that. It has become a Stalinist bureaucracy and shares with such bureaucracies all the faults that we associate with that period in Russian history. Although the right words might be stencilled over its entrance, it has become malevolent and something that destroys innovation and promotes mediocrity. The problems over the key stage 2 contract are merely the latest example. It has not been successful to date in delivering diplomas. They come through much more slowly than you would expect, they are elephantine and they will have no appeal to academic schools. The QCA’s management of GCSEs and A-levels has been deeply disappointing. The educational content of GCSEs has become widely derided. A-levels are having to be reformed, and not before time.

It, in a way, is inevitable that an organisation which seeks to draw all power to itself and to control the way in which the curriculum develops, according to a very narrow set of beliefs and criteria which have become embedded within it, should create this kind of difficulty. The very concept of having a centralised QCA in this way is destructive of the schools system, because each time there is an innovation it has to be a catharsis for the whole system. There is no problem for a school swapping from A-levels to the IB, or bringing in the IB, because that decision is made by the school, after consideration of its parents, at a time to suit the school. That transition can take place in a totally natural way. But the transitions masterminded by the QCA have been periods of catharsis and disruption, which is inherent in the system.

Innovation happens in the educational system, but it happens where the private sector has an influence, principally in A-levels and the academic curriculum generally. The IB has made inroads in this country. We have the new Cambridge Pre-U and the AQA Baccalaureate. At the fringes, we have AS-levels pioneered by Rugby and practical GCSEs pioneered by Bedale. Lots of things are happening, but they all are evolving outside the QCA because of inherent demands in the private sector, which are arising because of the failure of the QCA to provide a viable examination system for the ambitions that the private sector has for its pupils.

The enormous hole is in vocational examinations. There has been no innovation in vocational examinations in schools, except for this elephantine diploma, which requires that seven of your eight slots for GCSEs are devoted to one examination. Where is, for instance, the GCSE in architecture, which would be a wonderful cross-disciplinary thing? It would engage people in practical applications, while teaching them the scientific underpinnings of architecture, and the artistic and historical sides of it. So much could be built into an examination like that, but there is no innovation in it. Those who might wish to pursue this fusion between vocational and academic are principally in the state sector and prevented from doing so because there is no freedom to develop those things within the state sector.

There have been attempts to develop GCSEs in construction. They have gone immensely slowly and have not produced anything really attractive, again because everything gets dictated from the centre. An innovation around when I started to take an interest in education was business studies in Spanish. Where has that gone? It has been crushed. There are so many inventive teachers in the state sector. Exam boards have the ability to introduce a history of innovating, but they have been prevented from doing it by the structure of the QCA.

We need a much lighter structure. Page 44 of the Bill demonstrates that in the level of English and mathematics it is presumed should be universal. If that was the mandated, universal provision in the curriculum, instead of the current overburdened mathematics curriculum, and the rest of it was left to the examination boards to innovate with and to find bits of mathematics that would engage pupils—to find new ways of drawing them into the subject—rather than having to follow this tight and overburdened prescription that they have at the moment, we might get real innovation and success in mathematics education.

To my mind the QCA is like a large, overgrown shrub taking up a corner of the garden. It is full of dead branches, decaying leaves and weak shoots. What needs to be done is to cut it to the base, to put on a good deal of blood and bone—whose blood and bones I leave it to the Minister to imagine—and then wait for the flowers to come next year. It is time we did something radical about the QCA.

My name is also attached to the Question whether this clause should stand part of the Bill. I must declare interests both as a member until the time it was disbanded of the advisory body to the regulatory section of the QCA, and as chair of the quality and standards committee of the City and Guilds Institute, the major provider of vocational qualifications.

My reason for supporting the Question is to try to clarify exactly what Clause 142 is meant to do and what the future of Ofqual will be. Certainly I welcome in the clause what appears to be a move away from the absurd ratification of each individual qualification, particularly once the new qualifications and curriculum framework is put into place. It would mean the ratification of every single unit within each qualification, which would be an impossible task and impose a huge burden not only on Ofqual but on every single one of the providing bodies. I hope that this is a genuine move towards what I have prayed for over many years, and that is accreditation of the providers, making sure that their own quality control systems are robust—as the chair of one such provider, I am very confident that it is robust—and allowing them to get on and do as they please.

I am simply concerned that although we breeze through 12 subsections where the providers are being accredited, not the individual qualifications—which would be an enormous step towards the kind of root and branch change my noble friend is asking for and which I wholeheartedly support—we come to subsection (13) where we talk about a qualification “accredited by the Authority”. Is the authority still going to accredit individual qualifications? I hope that the Minister is going to tell us that it is not.

I say to the noble Lord, Lord Lucas, that when I cut shrubs down to the base in my garden, they grow even bigger the following year. I do not think that that is what he really wants for Ofqual. Since I am going to be meeting some senior people from Ofqual on Wednesday, I think that for the moment I shall keep my powder dry and wait to hear what the Minister says.

I have great sympathy for the arguments articulated by my noble friends Lord Lucas and Lady Perry. The functions of the QCA should ultimately be to provide as efficient and effective a system as possible. I know from the backgrounds of my noble friends that they speak on this issue with great authority and interest. I hope that the Government will listen to the points they have made and take them seriously.

I have listened carefully to the points made and have picked up on an interesting horticultural slant for this time in the evening. I want to do justice to the remarks of noble Lords opposite, and I hope they will forgive me if I detain them a little at this hour. I want to make clear what we are trying to do. The Bill seeks to strengthen and streamline the QCA’s role in maintaining standards and qualifications. If the noble Lord, Lord Lucas, were not so frustrated by his concerns, he might feel that he could support this clause because our direction of travel should give him some comfort.

The QCA will be given additional powers to recognise awarding and authenticating bodies rather than just accrediting individual qualifications. This will mean that the QCA can adopt a more risk-based approach to regulation, placing more weight on the general competence of awarding bodies and their processes rather than scrutinising each and every qualification separately—very much as the noble Baroness, Lady Perry, suggested. I think that I can offer her the reassurance she is looking for. In this way the regulator can focus its efforts on where they will make the most difference, providing a leaner and stronger system for safeguarding standards.

The provisions in the clause can apply to all regulated qualifications and are an important plank in our programme for strengthening the system for assuring qualifications standards. They are a forerunner for the legislation that we aim to bring forward in the next Session, when I hope we can give the noble Lord the flowers that he is looking for by establishing a fully independent regulator. We consulted on the proposals in December last year and, in the light of a generally positive response, we are currently drafting a Bill.

On vocational qualifications, the clause is part of the Government’s commitment to implement the recommendations of the noble Lord, Lord Leitch, and the proposals in the White Paper, World Class Skills, which we published a year ago. Again, this will move the QCA away from detailed scrutiny of vocational qualifications, enabling more streamlined, strategic and effective regulation. This policy is rooted in the vocational qualifications reform programme launched in November 2005. Clause 142 is an important step in delivering our commitment to accredit good employer training and to developing a demand-led vocational qualification system.

On the wider policy context and the reform of the QCA, I should make it crystal clear that it is not being reformed because it has failed but because we want to improve the way in which standards of qualifications and assessments are safeguarded. As noble Lords have pointed out, at the moment the QCA wears two different hats: first, the regulatory one, which safeguards standards and keeps awarding bodies on their toes over qualifications and the National Assessment Agency over the national curriculum assessments; and, secondly, it has a non-regulatory hat, which develops the national curriculum, provides advice to Ministers, delivers national curriculum assessments through its delivery arm, the National Assessment Agency, develops criteria for 14 to 19 qualifications and helps to reform the vocational qualification system.

We accept that there is a tension within the current arrangements for safeguarding standards. The QCA is a regulator but it is also the key adviser to Ministers on curriculum matters and is responsible for the design and delivery of the national curriculum tests. To make these roles more clearly separate and to remove any potential conflict of interest, we have decided that the time is right to make the changes if we are to set up an independent regulator and the Office of the Qualifications and Examinations Regulator, Ofqual, and the QCA are to evolve into the Qualifications and Curriculum Development Agency, QCDA, concentrating on curriculum development, assessment and qualifications delivery.

The highly regrettable problems we have witnessed recently over the late delivery of national curriculum test results clearly illustrate the need for an independent regulator. If we had not already established Ofqual in an interim form, the inquiry being led by the noble Lord, Lord Sutherland, would be reporting to QCA on aspects of the delivery of its own tests rather than to Ofqual. As the new independent regulator, Ofqual will give the public, schools, colleges, higher education and employers greater confidence that exam standards are being maintained. It will therefore ensure that young people and their teachers feel that their hard work and achievements are properly recognised.

Because of the need to set up a regulator there is a knock-on effect that change is needed to QCA, hence the new QCDA, which will inherit QCA’s non-regulatory functions. The QCDA will build on the firm foundations laid by the QCA. It will be the key source of expertise supporting Ministers in the design of the curriculum and related qualifications and of learning and development in the early years, and it will be the organisation that develops and delivers national curriculum tests and ensures the safe delivery of public qualifications. Removing this clause would be to prevent more effective and strategic risk-based regulation by the QCA in its current form.

I am disappointed that there is no button on the website for the noble Lord to use. I shall go back and have a look at that, because it would be an innovation worth pursuing. There is cross-party consensus about the need for a national curriculum, but I accept that innovation has to be a good thing. There is an awful lot of it going on with regard to A-levels. The QCA has a record of reducing bureaucracy, but I believe that the clause is the right way to go. It is a forerunner of a Bill that is being developed now. I hope that Members will feel able to support it.

Will the Minister confirm that she said at the beginning that the power to accredit whole provider organisations is additional to still having the power to accredit each individual qualification, not instead of it? If so, I am very disappointed.

I am hoping that my note will clarify that. I think the answer is yes, but we accept the noble Baroness’s concerns; they are why we are adopting this approach. If we took away the power to accredit, I am sure there would be unforeseen circumstances. Recognising awarding bodies at the strategic level rather than having to accredit individual qualifications is very much what it is about, but the existing power to accredit individual qualifications will continue. The drive is there to recognise bodies at a strategic level.

I am advised that it is because the QCA will need to accredit public qualifications such as GCSEs.

At this hour we should not continue the debate. The body does not have to accredit every individual GCSE examination. Edexcel, Cambridge Assessment and all these great providers of GCSEs and A-levels are robust in their quality control—meticulously so; there are learned professors who check every single item in the examination and who have detailed ways of checking the examination and the marking process. I simply do not understand why the QCA, or Ofqual, as it is becoming, needs to get involved in that, provided that it is convinced that the arrangements in the organisations that provide the examinations are robust. That should be its job—but I really will not keep the Committee at this time of night.

The noble Baroness’s points are well made and she has a strong depth of experience with which to make them. The point we are trying to make in this short debate is that this is about allowing a risk-based approach and a degree of attention to qualifications whereby, in exactly the awarding bodies she refers to where the processes are A* rated, using a risk-based approach means you would not need the kind of detailed scrutiny that currently exists where every individual qualification has to be accredited. That is what we want to move away from; we want to move towards exactly the system she has described, in which all those characteristics can be taken into account.

I am disturbed by that. A risk-based approach presumably means that the QCA will retain the ability to go to the detail of individual qualifications. Surely the function of the QCA is to ensure that the providing bodies are sufficiently robust to do that themselves. I entirely agree with my noble friend. One has to reduce bureaucracy to have more freedom of invention.

The noble Lord is right. We are creating an additional power for the QCA, which is intended to be a forerunner to an approach which I feel sure noble Lords opposite would feel able to support—in the next Bill.

I do not share my noble friend’s optimism about the direction in which things are going. Perhaps she imagines that we might reach a situation akin to that of universities; once a university is accredited to award degrees, it is up to the university what degrees it awards. However, I do not think that that is how the QCA sees things, at least not as presently constituted. It sees this as getting prisoners to dig their own grave. The rules will still be in place but certain prisoners will be trusted to follow them to the letter. Any move away will not risk, as it does at the moment, the qualification getting thrown back, but the ability of the awarding body to proceed without interference. In other words, the stakes are much higher in attempting any innovation in GCSEs and A-levels than is currently the case and will result in a system that is sclerotic rather than free and open.

I am delighted that we shall have a chance to debate this.

Can we expect to know more about Ofqual before Report? I should have declared an interest as my noble friend’s predecessor. I do not know whether that is relevant.

I am sure that we can circulate some background information about Ofqual to all Members of the Committee.

Ofqual already has a totally incomprehensible website, which my noble friend can try and make sense of if he wishes. Some of it works. We shall clearly come back to this subject next year.

Clause 142 agreed to.

Clauses 143 and 144 agreed to.

[Amendment No. 231 not moved.]

Clauses 145 and 146 agreed to.

Clause 147 [Orders and regulations]:

moved Amendments Nos. 231A to 231B:

moved Amendment No. 231C:

moved Amendments Nos. 233A to 233B:

moved Amendment No. 238:

moved Amendment No. 239: