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Lords Chamber

Volume 712: debated on Thursday 2 July 2009

House of Lords

Thursday, 2 July 2009.

Prayers—read by the Lord Bishop of Bradford.

Royal Assent

The following Acts were given Royal Assent:

Geneva Conventions and United Nations Personnel (Protocols) Act,

Business Rate Supplements Act,

Saving Gateway Accounts Act,

Broads Authority Act.

Energy Performance Certificates


Asked By

To ask Her Majesty’s Government whether they have assessed the level of compliance with the requirement to provide energy performance certificates for buildings being sold in the commercial property sector.

My Lords, no assessment has been made. Energy performance certificates have only been required for all non-domestic buildings constructed, sold or rented since October 2008. Local weights and measures authorities are responsible for enforcing these requirements. We support them in carrying out their duties by providing guidance and access to the EPC register and database. We will assess the level of compliance later this year.

My Lords, I thank the Minister for his reply. A survey by National Energy Services reveals either almost total ignorance or disregard of the need for energy performance certificates in the commercial sector. Energy performance certificates are the one really useful tool to come out of the Government’s regulation of the property market. Around 11,000 accredited energy inspectors, largely trained at their own expense, are wondering why Her Majesty’s Government encouraged them to undertake their training. What steps are the Government considering to overcome this failure?

My Lords, I certainly support the noble Lord in underlining the importance of EPCs because they play a vital role in energy policy. As I said in my response, we are proposing to assess levels of compliance later this year and have commissioned a comprehensive research project that is to be carried out in two phases. The first phase will look at the operational effectiveness of the current arrangements and the second at compliance and value for money. It is due to report finally in the summer of next year. I can tell the noble Lord that to date some 92,000 non-domestic EPCs have been lodged on the register, so it is having some effect. However, there are issues around non-compliance which need to be seriously addressed.

My Lords, considering—I am sorry, a touch of swine flu, I think. I shall start again. The Minister says that he supports EPCs, but is he aware that the newly formed Association of Property and Energy Professionals, which represents home inspectors and domestic energy assessors, is taking the Government to judicial review and will probably launch a class action because the Government have created two industries but, through their actions, have removed the need for DEAs and home inspectors? With the creation of the home energy assessor role, which is yet another layer, all the people who trained and who sometimes spent their life savings on it are now finding their role being taken on by other organisations. A press release from British Gas says that its meter readers will take on the role. Can the Minister say whether this is a good use of government money, given that it could cost £70 million?

My Lords, I was not aware that there is a prospect of judicial review. If that is the case, I should not say too much from the Dispatch Box on the issue. The number of assessors is for the market to determine. I acknowledge that people have trained to undertake these responsibilities and, obviously, the greater the compliance that can be engendered, the greater the prospects for those people who are in the field.

My Lords, I declare an interest as someone who lets property. As from the end of last year—I think it was October—an energy performance certificate has been needed for any property that is available for letting. However, I am not sure I understand what has just been said. Is it that the highly-qualified people are rather like expert surgeons, who can still do minor surgery and therefore there would be employment for them in that sense, or is it that because they are so well qualified they can no longer do domestic work? What the noble Lord, Lord Redesdale, said was a little confusing.

My Lords, the noble Baroness is right: from October 2008 any domestic or non-domestic property which is sold, constructed or let requires an EPC. The EPCs are generated by approved assessors and different standards apply for those dealing with domestic dwellings and those dealing with non-domestic dwellings. They have to be accredited through schemes which are themselves approved by the Secretary of State, but the standards and expertise required of someone doing an EPC on a domestic dwelling would not have to be the same as those required of someone doing an EPC on a commercial property.

My Lords, in the spirit of leading by example—something that, sadly, did not happen with HIPs—can the Minister confirm that 100 per cent of the government-owned commercial property that was sold or let during the past six months, or since October if he would prefer, was properly marketed with an energy performance certificate.

My Lords, that is a very interesting question. The answer is that I would certainly hope so. I asked those who briefed me about government buildings and the publication of DECs whether there was full compliance with that requirement. The answer I received is that there was a high level of compliance. I hope that that is exceeded in the case raised by the noble Earl.

My Lords, as this subject has come up very frequently in the past two or three years, how many Members of your Lordships’ House does the noble Lord think would pass an examination on this legislation on the basis of what we have heard so far?

My Lords, I am not sure how many Members of your Lordships’ House would be keen to undertake the role of an assessor in these circumstances. However, in all seriousness, this is a hugely important policy. We know that there is an overwhelming body of scientific evidence which indicates that climate change is a serious and urgent issue and that nearly half of all emissions in this country come from buildings. EPCs mean that, for the first time, consumers will know how energy efficient buildings are and how to make them perform better. I hope noble Lords will join me in trying to get those messages out generally.

Disabled People: UN Convention


Asked By

To ask Her Majesty’s Government what further action they have now taken regarding ratification of the United Nations Convention on the Rights of Persons with Disabilities and the parliamentary process for the ratification of the Optional Protocol.

My Lords, we ratified the convention on 8 June. Our focus is now moving to implementation, including awareness-raising, monitoring and reporting. We will be working with disabled people, their organisations and the equality and human rights commissions to explore how we can take this forward. I am pleased to say that we started the parliamentary process for ratification of the Optional Protocol on 22 June 2009, and hope to conclude this before the Summer Recess.

My Lords, I am grateful to my noble friend and to Jonathan Shaw and Anne McGuire for their unswerving commitment to ratification of both the convention and the Optional Protocol. Does my noble friend accept that implementing them will succeed in proportion to the involvement of disabled people and their organisations at every stage of the process? Can we be assured of adequate resourcing for the implementation plan? Finally, by when does he expect your Lordships’ House to have an opportunity to debate this historic development?

My Lords, I pay tribute to my noble friend for all the work that he has done over so many years for the cause of disabled people. I agree that successful implementation will be achieved through a partnership approach that brings together Government, disabled people and the commissions that form the independent element of the monitoring and reporting framework. The convention is not owned by a single element of this partnership, and we will make a success of it if we work together.

On the issue of resources, because of where we are starting from, the UK is well placed to implement this convention and it will not be necessary to require the investment of substantial new resources, but we are not complacent about what happens next. We will look to maximise the impact by making the best use of the resources that are available. There are no current plans for a debate, although the Welfare Reform Bill involves some of these issues and we will be debating it again this afternoon, but I am sure that this House will keep the Government on their toes. There are numerous ways in which we could engender a debate, which would be very welcome and a healthy thing to do.

My Lords, when will the Government’s reservations to Article 12.4 be reviewed, given that they have indicated that a review system of legal appointees should be introduced?

My Lords, as the noble Lord has mentioned, we entered a reservation with regard to mental capacity issues. We did that because, although we have a system in place where people can be supported and appointed to receive benefits on behalf of others, we do not have a formal review procedure. We need to do that to be compliant with the convention but, as we have stated and made clear, we intend to introduce that system. Regrettably, it cannot be done overnight because a number of people are involved with this; it could take some two years. However, we are intent on removing the reservation as quickly as we can.

My Lords, the first step is to let disabled people know about the important ratification of this treaty. Do the Government have any proposals to let disabled people know, not just through the organisations but more broadly? After all, sadly, not everyone listens to “Today in Parliament”.

My Lords, the noble Baroness makes an important point. Part of implementation, which we have an obligation to do, will be to ensure that we promote the convention. Our plans are to do so through the normal channels—the commissions and the vast and rich network of stakeholders who engage with us on disability issues—and that is the most effective route to get those messages out there.

My Lords, does the implementation involve the devolved Administrations? If so, what steps are the Government taking to ensure that those Administrations are fully up with the ratification?

Yes, my Lords, this is UK-wide and must involve the devolved Administrations. Under the convention, there was an assumption that there would need to be one focal point appointed nationally. That will be the ODI. It will certainly need to engage with the commissions in each of the devolved Administrations as a key route to involving them in this process.

My Lords, does the Minister recognise that he has replied with respect to one of the four reservations that the Government made—the only one that a number of outsiders, myself included, thought was even faintly justified? He has not replied about the other three reservations; there was a widely held view that they were not justified. Will he give a commitment that the Government will be actively reviewing those reservations and that they will withdraw them as soon as their justification—which is quite remarkably thin—is demonstrated no longer to exist?

My Lords, I am not sure that I agree with the characterisation of the justification as thin. We have certainly said that we would review the liberty of movement reservations within 12 months. The noble Lord will be aware that we debated the reservation in respect of the Armed Forces recently. That reservation is necessary because in our other domestic legislation the Armed Forces are not subject to the employment conditions of the Disability Discrimination Act. For as long as that remains the position, it is absolutely technically right that a reservation is maintained in respect of the convention. Otherwise, there would be a mismatch between the convention and our domestic legislation.

The declaration and reservation on education will always be kept under review, but for as long as there is the assumption—if that is what it is—that the convention would prohibit special schools, there will be the need to maintain an interpretive declaration. Our system of education recognises the importance of mainstream schools, but also that there should be an element of choice and special schools for those who need them.

My Lords, the Government intended to ratify this convention by the end of last year. Had they done so, this country would have been among the original 12 members of the United Nations monitoring committee. Now it is six months later and, although there are six more places up for grabs, I understand that none can be filled until 80 countries have ratified the convention. What is the Minister’s prognosis of the UK getting one of these places?

My Lords, I am not sure what our chances of success are. The most important thing is that, whoever does it, there is an effective monitoring operation in place at UN level. It is our responsibility as a national Government to make sure that we liaise with the monitoring operation by reporting to it, as we are required to do, within two years to demonstrate how we are effectively implementing the convention domestically.

EU: Financial Institutions


Asked By

To ask Her Majesty’s Government what assessment they have made of how the powers granted to the new European Union financial institutions will develop in future; and whether they will affect the independence of the United Kingdom and its financial institutions.

My Lords, the Government have agreed with EU leaders that any powers granted to the new EU regulatory bodies should be targeted at strengthening regulation and the effectiveness of supervision and should not undermine the fiscal responsibilities of national Governments. The Government expect to see this reflected in the Commission’s draft proposals, which are due in the autumn.

My Lords, I thank the noble Lord for that reply. However, it does not accord with the view of the French President, which is worth putting on the record. He said:

“We have agreed a European system of supervision with binding powers … It is a complete sea-change in the Anglo-Saxon strategy … We could have gone further, but I believe that it will widen [its powers] through experience and practice, the way it’s always happened”.

Quite so. My first question is—

My Lords, that was a comment on the Minister’s Answer. When can we expect the Commission’s impact assessments on all this and on the proposed hedge fund directive? Will the Minister be good enough to put copies in your Lordships’ Library when he gets them? Secondly, have Her Majesty’s Government made their own assessment of the damage to our economy caused by firms leaving the City in droves, which they are already starting to do?

My Lords, I am sure that President Sarkozy will be delighted to know that the noble Lord, Lord Pearson of Rannoch, stands in this House as his spokesman; it is a significant change for Members of the House to see the noble Lord speaking on behalf of a leading European statesman. The outcome of the European Council meeting and the ECOFIN finance meeting was absolutely in accordance with what we set out to do, which was to ensure that the holder of the ECB presidency did not naturally chair the European systemic risk council and that the three upgraded Lamfalussy level 3 committees should have advisory but not statutory responsibilities for supervision. I am unaware of firms leaving the City of London in droves—quite the opposite. The City of London is continuing to grow in global significance, as underlined by the recent Bischoff report.

My Lords, does my noble friend acknowledge that the independence of the United Kingdom and its financial institutions is defended because we are playing an active role within the European Union and its financial institutions?

My Lords, I absolutely agree with my noble friend. We are doing that in terms of the architecture of regulation and supervision. As the noble Lord, Lord Pearson, raised the subject of the European draft directive on alternative investment management—that was the source of his original Question, before he changed his mind to ask a different question—let me say that we are also actively engaged in representing the views of those who invest in hedge funds and those involved in that industry and supporting it here in London. In that connection, I am regularly engaged with the Commission and with the new Swedish presidency to fight Britain’s corner.

My Lords, does the Minister accept that there is near unanimity, not necessarily extending to the noble Lord, Lord Pearson, on the need to develop and strengthen the international regulation of financial institutions? Does he agree that, unless the EU takes a lead on this, the chances of London surviving, prospering and developing as an international financial services centre will be jeopardised, not improved?

My Lords, I once again find myself in agreement with the noble Lord, Lord Newby. Britain’s central role in financial services in Europe is greatly enhanced by our ability to work with our European partners to ensure that we develop new methods of macro-prudential supervision, regulation and micro-supervision, which will strengthen confidence in the financial services and banking sectors across Europe. The fact that we have a powerful voice in Europe undoubtedly provides much useful opportunity.

My Lords, would the noble Lord like to confirm what I think he said, which was that President Sarkozy has got it all wrong and that the Minister and his colleagues, with their usual brilliance and charm, have negotiated in Europe an agreement that enables us to do exactly what we want, despite the opposing views of many in Europe? That is what he implied. Is that what he meant?

My Lords, the agreement secured at the European Council, endorsed by all members of the council and building on the work done the previous week at ECOFIN, was fully supported by all European nations, including France. At the heart of that agreement were proposals built on the original letter of 3 March from the Chancellor of the Exchequer to the Czech Republic presidency, as modified to take into account the de Larosière proposals and to address the issues to which I have referred relating to the upgraded Lamfalussy committees and the European systemic risk council.

My Lords, do those conclusions not include a provision whereby there could be arbitration between competing regulators and that the Lamfalussy committees would then have the power to impose a decision? Was the Commission not instructed to draw up legislation along these lines, or advancing further along these lines? This matter is by no means concluded.

My Lords, I fully agree with the noble Lord, Lord Trimble, that the matter will not be concluded until such time as the necessary legislation is approved. I think that, in referring to arbitration, he actually means binding mediation, which has been accepted in respect of disputes between home and host countries for banking regulation, precisely responding to a point emphasised and first raised by the Chancellor of the Exchequer in his letter of 3 March.

My Lords, when can we expect the Government’s White Paper on their regulatory proposals, which press reports have suggested is imminent?

My Lords, we are departing some way from the Question but, if it helps the House, I anticipate that the Government’s paper on the future of financial markets will be published within the next fortnight.

My Lords, does not the Minister find it very eccentric indeed that members of UKIP and some old-fashioned and eccentric people in the City are always going on about the virtues of the single market in all respects except when they suddenly regard the City of London as fit for special exemption? Is this not an illogical position to take, bearing in mind that we need a central single market in financial regulation as well?

My Lords, my regular contacts with the City suggest to me that most leaders of opinion and trade bodies in the City fully recognise the very real advantages that come from being a member of the single market.

Comprehensive Spending Review


Asked By

To ask Her Majesty’s Government when the next comprehensive spending review will be published.

My Lords, departmental budgets are set until April 2011. As the Chancellor has said, given the degree of economic uncertainty, now would be the wrong time to set departmental budgets through to 2014. The Chancellor will return to these issues at the PBR.

My Lords, I thank the Minister for that reply. The Prime Minister has spent weeks denying the fact that the Budget’s spending projections to 2014 contain real terms cuts in total public spending. Indeed, if you strip out debt interest and social security payments, there are real terms cuts of 7 per cent to public service spending. However, instead of being straight with the public, the Prime Minister sent the First Secretary of State out to tell the media that the Comprehensive Spending Review, which could not have concealed the truth, was cancelled.

I know that the Minister will want to be honest with the House. Does the Chancellor really believe that forecasting uncertainty is a good reason for not being up front with the public about the need to control public expenditure and set priorities? Does he agree with the director-general of the CBI who said yesterday that the Government are creating damaging uncertainty for business?

My Lords, I always wish to give forthright and honest answers to the noble Baroness’s questions. The answer is yes to the question about the Chancellor’s views.

My Lords, does my noble friend recognise that the noble Baroness, Lady Noakes, is not at her best playing party political games? However, will he confirm that the Government have in mind not to start to cut public expenditure, and possibly increase taxation, until the recession is clearly over and we are into positive growth, but that then major cuts in public expenditure and/or tax increases will be needed?

My Lords, I thank my noble friend Lord Barnett for his always perceptive questioning. The outline for government expenditure and taxation through to 2013-14, as set out in the Budget, follows precisely the pattern that he suggests. We will maintain public expenditure to support the economy during a period of global recession, but thereafter we will—we are committed to do this—reduce progressively public sector borrowing as a percentage of GDP to take it back to a level which we regard as more sustainable. In the interim period, real expenditure from now to 2013-14 will increase at 0.7 per cent per annum.

My Lords, does the Minister accept that we heard the Prime Minister say yesterday that the only action that would be required in the years ahead to bring public expenditure under control was a combination of asset sales and efficiency savings? Does he accept that that is a completely inadequate response? If the Government bring forward specific programmes in the Pre-Budget Report which can no longer be afforded, will he urge his ministerial colleagues in the Treasury to cut them?

My Lords, expenditure must always be targeted at the points where it can be most helpful to the economy and society. Politics and Treasury management are about making difficult choices. We will, through our efficiency programme and prioritisation, ensure that public expenditure is used effectively to deliver value for money and to support the economy, British jobs, British companies and British families during this global recession.

My Lords, does the Minister really think that we are so naive to believe that by reducing public borrowing we are not going to cut public services or public expenditure? That is my first point. Secondly, it is all very well to say that we have got to wait until things work out and see whether the recession is going to end on whatever date at whatever hour, but the reality out there is that there are elderly people in care homes that are subsidised by local authorities, and local authority expenditure will be cut; what do those people think? There are young people at the other end—the “NEETs”—who do not even know if they will have jobs. Yet we are told that there will be public expenditure. This does not add up. When will the Government come clean? This is not party-political playing.

My Lords, let my try to be clear. Public expenditure will increase from today, through to 2013-14, at 0.7 per cent per annum. Public capital expenditure is being front-loaded. There is that dreadful phrase, which our soon-to-be noble friend Lord Sugar would like to use, of things being “shovel ready”, whereby projects which can be implemented rapidly are being brought forward. What I can be sure about is that we will continue to support the provision of public health and public education, and that the country can rely upon a Labour Government to ensure that public provision is something which we support, honour and respect.

My Lords, does my noble friend share my view that the public view with some distaste the likelihood of having a Punch and Judy show between now and the next general election on the issue of costs, expenditure and cuts? I welcome his statement on when the Comprehensive Spending Review will appear. In the mean time, will the Government, given their desire to try to increase democratic renewal with the public, see whether we can devise a system whereby when the public expenditure review comes out and we can see what the Government intend to do, we could introduce a programme whereby both manifestos are put to the public before the election, including the costs and savings that will arise, so that the public in turn can be treated seriously in an adult fashion, and make a proper decision on which party they should support?

My Lords, the Comprehensive Spending Review introduced by this Government sets out a medium-term planning horizon and priorities for departmental expenditure and is a distinct improvement on the previous annual budgeting exercises which led to far too much short-term decision making. How the electorate form their views on the proposals put forward by the party opposite must be for the party opposite, which must be more precise about its plans. From my perspective, we can be pretty confident that the party opposite would spend less than we would spend on education, less than we would spend on health, less than we would spend on infrastructure, and less than we would spend on security. That will be the clear and stark choice that the electorate will confront when there is an election. I have no doubt that the electorate will evidence their continuing support for significant investment in public provision.

My Lords, I respectfully remind your Lordships that Oral Questions is a time for questions, not for statements. I quote from the Companion:

“Supplementary questions may be asked but they should be short and confined to not more than two points … The essential purpose of supplementaries is to elicit information, and they should not incorporate statements of opinion”.

Arrangement of Business


My Lords, with the leave of the House, my noble friend Lady Thornton will at a convenient point after 12.30 pm. repeat the Statement on the swine flu update. The luncheon break business will follow immediately after the Statement.

Parliamentary Standards Bill

First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Scottish Parliament (Elections etc.) (Amendment) Order 2009

Statistics and Registration Service Act 2007 (Disclosure of Higher Education Student Information) Regulations 2009

Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009

Children Act 1989 (Higher Education Bursary) (England) Regulations 2009

Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009

Motions to Refer to Grand Committee

Moved By

Motions agreed.

Apprenticeships, Skills, Children and Learning Bill

Committee (4th Day)

Clause 40 : Education and training for persons over compulsory school age: general duty

Amendment 93

Moved by

93: Clause 40, page 23, line 33, at end insert—

“( ) consult with local employers and their representatives, including, where appropriate, those persons designated in section 11(1)(b) of the Apprenticeships, Skills, Children and Learning Act 2009 to issue apprenticeship frameworks in particular sectors, as to the availability and suitability of provision within their area;”

This set of amendments is about consultation, asking that local authorities and the chief executive for skills funding consult with employers, trade associations, chambers of commerce and sector skills councils about what sort of training is needed for the local workforce in any particular area.

Amendment 93 relates to Clause 40 and local authority duties. Clause 40(1) states that,

“A local education authority in England must secure that enough suitable education and training is provided to meet the reasonable needs of persons”,

aged 16-18 “in their area”. Clause 40(3) defines suitable “reasonable needs” as having regard to “ages, abilities and aptitudes”, “learning difficulties”, the quality available and “locations and times”. Subsection (4) lists a lot of things the local authority must do in performing its duty. It must encourage a diversity of provision, especially for those aged 16 to 18 who have to stay in education and training as a result of the Education and Skills Act 2008. It must think about what others might provide, make good use of resources but not incur disproportionate costs.

Yet it need not take account of the needs of local employers, which is extraordinary. Amendment 93 asks that, in its duty to secure enough suitable education and training, the local authority shall be asked to consult local employers, trade associations, chambers of commerce and, where appropriate, the sector skills council about the availability and suitability of provision in education and training in their particular local area. If the local authority is to be the commissioner of education and training facilities in the local area—including, importantly, training facilities for apprentices—it is vital that it takes account of what the local needs are in relation to the provision already there. The people who know best about this are the employers and their representatives: the chambers of commerce, the trade associations and—at a national level—the sector skills councils. The sector skills councils have their own knowledge of what goes on in localities. Amendment 93 asks directly that there shall be consultation.

Amendments 104 and 105 are applicable to Clause 41. Here again we are dealing with local authorities. Again the Government are laying down what local authorities must do. In Clause 41(1)(a), they must encourage those aged 16 to 18 to participate in education and training and in Clause (41)(1)(b), they must “encourage employers to participate” in this provision. Again there is no mention of consultation. These two little amendments gently suggest it would be better if, rather than banging on about it, local authorities got together with local employers and discussed with them how best to promote such participation.

With Amendments 182, 183 and 188, we jump to Clauses 81 to 83 and the duties of the chief executive of the Skills Funding Agency. In those three clauses, we are still dealing with 16 to 18 year-olds. Clause 81 is about the provision of apprentice training places, Clause 82 is about co-operation with local authorities and Clause 83 is about co-operation with employers. Clause 83 states that the chief executive of the Skills Funding Agency must,

“encourage employers to participate in the provision of training”.

The amendment states that the chief executive, in conjunction with the sector skills councils, should consult and encourage employers and trade associations —in other words, employers’ representatives.

With Amendment 188, we jump forward to Clause 84, providing for those aged 19 or over. The wording is subtly different. There is no more talk about “enough suitable” education and training to meet reasonable needs. We turn to the weasel words of the clause:

“The Chief Executive must secure the provision of reasonable facilities”,

suitable for those aged 19 or over. Subsection (3) defines reasonable, which we shall come back to later when we discuss the clause. Subsection (4) is key to that amendment, as it lists all the things that the chief executive of the Skills Funding Agency must take account of. Subsection (4)(c) states that he or she must,

“take account of the education and skills required in different sectors of employment for employees and potential employees”.

Once again, there is no mention of consultation with employers. This little amendment suggests that, before laying down the law about what is needed locally, the chief executive should consult employers, trade associations, and the sector skills councils—who are, after all, the people who should know what sort of skills training is required. I beg to move.

What arrangements will there be to consult local authorities about apprenticeships for social work? The Government have introduced a degree course in social work, which is very welcome, but it has attracted a younger group of people into social work. There is great advantage in also securing people with life experience and maturity, and apprenticeship is a good route for that. I would be interested in learning from the Minister, perhaps in writing, how consultation about apprenticeships for social work will take place.

It seems totally reasonable to include the amendment in the Bill. Consultation is a part of the process to make certain that we get the right policy. Unless we can be assured that that has happened anyway and will continue as the schemes are put into practice, it would be helpful to have the amendment accepted.

I am pleased to see the amendment. I mention one particular group representing employers, which I believe has a greater role to play than it is currently being enabled to do: the chambers of commerce. Having talked to representatives of chambers of commerce, I know that they are very conscious that in the areas for which they have responsibility, there is great need for consultation between employers and the providers of apprenticeships to make certain that what is being offered is relevant.

In connection with the chambers of commerce—I know that this is not the responsibility of the departments who are handling the Bill, but so many aspects of the various Bills going through the House at the moment impact on what is going on in other ministries—I mention that there is another burgeoning role that might be considered by the Government. Jobcentres are not the ideal places for advising managers on future movement when they are declared redundant. I wonder whether consideration might be given to giving that role to the chambers of commerce, which understand what managers need, what managers’ skills are and where they might be applied. That is particularly relevant to making certain that they, as employers and employers’ representatives, are consulted about all the things to do with employers in the area where they are working.

I think there is a very strong feeling in this Chamber today about the importance of my noble friend’s amendment. Coming from a business background, I feel that there is a great need for consultation not just on local issues, but with the particular requirements of particular businesses in mind.

Like other noble Lords who have spoken, we feel that the noble Baroness, Lady Sharp, has brought forward some very important amendments in this group. The support from these Benches for Amendments 93, 104 and 105 will be clear from the fact that my noble friend Lady Verma and I have added our names to them.

We have already expressed concern that the involvement of employers and the sector skills councils should be more explicitly laid out in the Bill. Will the Minister not accept that it would be sensible for the authority responsible for securing suitable education and training in the local area to have to consult with local employers and their representatives? It seems to me that this holistic approach would help to ensure that training was suitable not only for those who are going to receive it, but also for those local employers who hope to benefit from having an increasingly skilled workforce.

As the Bill stands, the local authority must already “have regard to” a number of sensible measures, including encouraging diversity in the education and training available, and increasing opportunities for people to choose the programme most suited to them. These are admirable provisions, but they are all from the focus of the learner as the receiver. We think it would also be helpful to have an employer-led influence on this process. The Government themselves have used the expression “demand-led”. We think this is what “demand-led” means.

Amendment 93 would secure that, at the very least, consultation with employers and their representatives would have to take place. In this way, employers could hope to have a direct influence on courses of training and education. Does the Minister not accept that this approach would help local communities match skills to real jobs, which would then help to increase employment? We would argue that, particularly at this time of economic difficulty, it seems not only appropriate, but, indeed, urgent that the Government should do all they can to increase the education, training and skills of our population. The critical focus of this skilling-up should be on how best to match these skills to real jobs, so it seems appropriate that the LEA should have to consult employers and their representatives on the availability and suitability of provision within their area.

Amendments 104 and 105 further develop this point. As the noble Baroness, Lady Sharp, has pointed out, the Bill already states that LEAs must encourage employers to participate in the provision of education and training, so we support the idea that this should also include consultation with employers and their representatives. As it stands, the Bill seems to require only a one-way dialogue. The LEA must “encourage” employers to participate in this provision. We on these Benches would argue that this is completely to miss the point. It is important that there is a two-way conversation between employers and their representatives on the one hand, and the LEA on the other. We should not presume that the LEA is always in a position to command the employer to interact with the education process. It is not inconceivable that the employer might sometimes be better informed as to what new provision would be useful or necessary. So we fully support the amendment in the name of the noble Baroness, Lady Sharp, to make sure that the LEA must also consult employers and their representatives.

Amendments 182, 183 and 188 mean that employers and their representatives must also be included in the consultation process for those areas where the chief executive of Skills Funding is responsible for education. This also seems to be a sensible approach to an area that, after all, must be employer-focused and employer-led. I look forward to the Minister’s response.

I, too, support the amendments. The LEAs will require all the help that they can get to secure these places. I say that not least because I read today in Children & Young People Now that staff will be transferred from the Learning and Skills Council, but that in some places there are no staff, only a massive number of vacancies—for example, in the London area. Will the Minister say what will happen? They will not be transferring staff from the LSC to the local authorities, they will be transferring vacancies, so how will the staff be able to undertake all the extra tasks that they have got to do?

On the face of it, this is a rather sensible group of amendments. Obviously it is very important for LEAs to consult sector skills councils. They are probably a better route than employers’ groups because they think very carefully about education and training needs. My experience of consulting employers more generally is that they are sometimes not terribly clued up about what particular types of education and training are required for the sort of jobs which they seek to fill. However, I am not sure whether this really has to be in the Bill.

I have no idea what the Minister will say, but I am not absolutely convinced by the amendment in that I cannot believe that any local education authority that takes on this general duty, which is what the clause is about, could properly do its job of developing sensible routes down which it should go to ensure that those in the immediate post-compulsory age group of 16 to 18 year-olds have the right opportunities for education and training. I absolutely support the spirit that lies behind this, but it is probably best to consult the sector skills councils than an all-embracing category of employers.

The other point is that social work is, and needs to be, an all-graduate profession, so I am not sure that apprenticeship is the best route for people who will be social workers, although there is a strong case for having an apprenticeship route for those who will be in support roles in residential care for children or the elderly, a small percentage of whom might want to go on to be social workers. That, rather than an apprenticeship for social work per se, is the right way in which to approach this.

I thank the noble Baroness for what she has said. I quite agree that it has been very important to raise the status of social work by introducing a degree. I also quite agree that it is also very important that we recognise that child and family social workers must have a sound understanding of the law and make sound analytical decisions about children in families.

I also hear what the noble Baroness says about certain other circumstances. It has been put to me that it is important to have an apprenticeship route into social work as a starting point from which there is an opportunity to move to a higher academic level—to degree level—so I agree absolutely with what she said. My argument is that at the beginning there might be a foundation stage. One would not be a qualified social worker, but one would take steps towards being one. That would be the apprenticeship aspect of the qualification. The Open University already offers that sort of apprentice first step into social work.

There might have been a little absurdity in what I said about local education authorities consulting local authorities about availability, but I simply want to be reassured that they will look inward as well as outward.

I have just had a brief thought on what the noble Baroness, Lady Blackstone, said about consultation. It is perfectly true that the sector skills councils are where the serious thinking about the nature of training and so on is going on, and consultation with them is key and a starting point. Nevertheless, further education colleges are, by their nature, local institutions and it is the local employers, on the whole, who will be providing the apprenticeships. They are the ones who have to be engaged sufficiently to understand the value of providing apprenticeships. My experience of negotiating with employers is that this is the last thing on their list of priorities. They have other urgent priorities in keeping their businesses afloat and they need a lot of persuasion and engagement if they are going to make a real success of the apprenticeship scheme. So I have a great deal of sympathy with the idea of consulting local employers, getting to know them and pushing ahead in their minds the importance of the apprenticeships that they will offer.

These amendments mirror the focus of the debate that we had on our second day in Committee concerning consultation between the National Apprenticeship Service—as part of the Skills Funding Agency—employers, sector skills councils and others. I share the view that local authorities, when engaging in the commissioning process and drawing up plans, need to encourage employers to participate. We could have a semantic debate about exactly what that means but I do not want to. I agree with the point made by the noble Baroness, Lady Sharp, that we want employers to be involved in the consultative process—and not just employers but also sector skills councils and others. The noble Baroness, Lady Perry, rightly reminded us of the reservoir of knowledge and experience that exists in the colleges. They have the contact with the employers and they know exactly what the needs are. We need a coherent, holistic approach to this.

We all agree that partnership working is the way ahead and that consultation will take place. By its very nature as a customer-focused service, having insights into employer needs and getting feedback from employers will be central to the delivery of services by the National Apprenticeship Service and, indeed, all the other services that will be housed within the Skills Funding Agency. This means that active engagement with employers and others will be a part of its core activity. We have already said that we will reflect further on whether direct reference should be made in the Bill to consultation by the chief executive of skills funding with employers, sector skills councils and others, and I repeat our genuine commitment to reflect on that.

Employers will also have a key role to play alongside local authorities in ensuring that there are sufficient high-quality training options for learners, improving the choice available to young people and ensuring that they have a range of options to choose from. We are putting in place arrangements to ensure that this engagement happens at every level, although we have tended to focus on employers, and I understand exactly why we are doing that. The noble Lord, Lord De Mauley, spoke about their role and said that we talk about a demand-led process. We do and we stand by that. But “demand-led” does not just mean employers; it means learners as well. We have to embrace both if we are serious about reflecting on and reaching the needs of young people—and not-so-young people—in this process. I make a plea that in this debate we do not forget, when we talk about this being demand-led, that we are embracing not just employers but also learners.

Clause 41 places a new duty on local authorities to encourage employers to participate in the provision and delivery of post-16 education and training. I echo the point made by my noble friend Lady Blackstone that it is hard to envisage a local authority that would not want to engage with employers, who, after all, are going to be the source of wealth generation within their communities. It is vital that they are brought into a consultative process.

Local authorities are well placed to perform that duty. They have a wealth of experience in dealing with employers, particularly through their education business partnerships and their existing local strategic partnerships. Employers are also critical members of consortia and the 14 to 19 partnerships in delivering 14 to 19 reforms in local areas. When we talk about employers being engaged at every level, we mean that; indeed, they already are. At a regional level, the employer voice will be heard through the regional development agencies and membership of the regional planning groups, which have an interest in ensuring that the economic and skills agency for the region is reflected in local authority commissioning plans.

That said, the arguments in relation to consultation with employers by local authorities are different from those that apply at the national level to the chief executive of skills funding. The main relationship with the sector skills councils will rightly be with the National Apprenticeship Service. Local authority engagement will be through the provision in new Section 15ZA that requires local authorities to co-operate with the chief executive in the provision of apprenticeships for young people. We feel that these are the appropriate channels. Of course, employers make up and lie at the heart of the sector skills councils. A requirement on each of the 152 local authorities to consult directly every sector skills council would place a significant burden on them. They have to be cognisant of what sector skills councils are doing. However, when we talk about placing a requirement on them to consult directly, we have to recognise that there are 25 sector skills councils. We want to ensure that, when local authorities are drawing up their commissioning plans, they are responding to the needs of employers and learners.

While I understand that you might want to include a direct duty on local authorities to consult local businesses on the exercise of their duties under new Section 15ZA, we need to look at how that will function and whether there really is that need to do it in that way. First, it is a natural consequence of the duty in Clause 41 on encouraging local businesses to provide apprenticeships and other training that there will be a consultative dialogue. Secondly, this dialogue is already happening through the education business partnerships, existing local strategic partnerships and, at a regional level, the regional development agencies. It would seem unnecessarily burdensome to overlay that with a further requirement to consult. Thirdly, there is already an expectation that local authorities will consult their communities on issues that affect them, which they would do anyway in the normal course of events. Finally, employers will also be involved in co-operation arrangements with colleges through the duties in Clause 248, which were introduced by amendment in another place. I hope that all this reassures the Committee about the centrality of employers to these reforms.

I turn now to specific points that have been made and, first, to a point made by the noble Lord, Lord Ramsbotham. I agree that chambers of commerce have an important role to play. Last year, I spent a lot of time going around them when they were dealing with things like skills pledges. They will have a seat on the employer reference group. In addition, the Secretary of State will issue guidance to the Skills Funding Agency about whom it should consult. We expect that to include the CBI, the British Chambers of Commerce and, probably, the Federation of Small Businesses.

At the moment, I do not think that I am empowered to deal with the noble Lord’s point about jobcentres and managers. If I had a view, I would not necessarily dismiss the approach, but I would say that we should ensure that jobcentres are able to respond to the circumstances that currently prevail and to deal with a wide range of people. I know that some of those who go into jobcentres and agencies are people who would not normally have been expected to be in that situation. We need to look at how that service is being provided.

The noble Baroness, Lady Morris, asked about LSC staff transferring to local authorities. We are still working to match LSC staff to posts in local authorities. We must and will ensure that local authorities have the skills to conduct these functions. If there are vacancies, we will identify them in time to enable local authorities to access staff with the right skills before the transfer is effected, subject to the passage of the Bill. We take on board the noble Baroness’s point—we have to deal with the vacancy situation.

The noble Earl, Lord Listowel, asked about apprenticeships in social work. That is being considered by the social work task force. We are talking about a work-based qualification. I noted the range of views that were expressed on this issue. I share the perspective of the noble Earl, who said that we should not rule out an apprenticeship route. We may in the end determine that a degree is required, but a vocational route would seem to be of benefit in attracting a wide range of people to social services. That is not to denigrate in any way the requirement for degree qualifications.

In conclusion, I say that wherever you look in the process of commissioning and engagement, we are involving employers. I stress that we need to ensure also that young people between 14 and 19 have real choice through information, advice and guidance. We want to ensure that the autonomous providers—schools with sixth forms, FE colleges, academies, private training providers—can each determine their capacity, ethos, curriculum and methods of delivery, own their own buildings and land and employ their own staff. They clearly possess autonomy and are involved in the commissioning process. Local authorities are strategic leaders in their area, bringing a holistic view to the commissioning of all services for young people. Employers, as I said, engage through local strategic partnerships, which drive local area agreements.

I repeat our commitment in relation to putting sector skills councils in the Bill. We indicated our concern not to introduce anything that would make the Bill a hybrid. We will look at that concern. I repeat also our assurance that we are as concerned as all noble Lords to ensure that there is a clear understanding. We are talking not just about participation by employers but about making sure that they are involved in the consultation process. We will look also at that and come back to noble Lords to make clear exactly where employers will be involved in the commissioning process.

Certainly they have been framed in a way that specifically does not mention sector skills councils. I do not feel absolutely confident, but clearly that was the intention. I assure noble Lords that I am not attempting to dismiss the amendments on those grounds.

We understand noble Lords’ concerns that we get this right. I have tried to make the point that, when we are talking about consulting, with each local authority consulting sector skills councils, we need to get that right, bearing in mind that there are currently 25 of them. We want to make sure that, in getting employer consultation right, which we need to do, we do not create a burden that they cannot fulfil.

I repeat the two commitments that we have made on this issue, in relation to employers and the role of sector skills councils. I hope, in pointing out the areas where employers are already both represented and part of that commissioning process, that the mover of the amendment will be prepared to withdraw it. We will come back before the Report stage. That is a clear commitment.

I am grateful to the Minister for his reply and to all Members of the Committee who have supported me on these amendments. The Minister made the important point that we are talking not just about participation but about involvement. The noble Baroness, Lady Blackstone, said that she does not think that this needs to be in the Bill. I think that this notion of consultation does need to be in the Bill, because of this element of involvement. That would be very helpful. I take on board the fact that the Minister is thinking hard about whether we can accommodate the sector skills councils. I would point out that, as far as Amendment 93 is concerned, we are not suggesting that local authorities need to consult all the sector skills councils. The amendment says “including, where appropriate” the sector skills councils, and it would be only those sector skills councils that were involved with the particular industries in the locality—at least, that is what I envisage.

I think that the notion of consultation is important. A great many employer organisations have been talking to many of us about their feeling that employers are a little bit taken for granted. Clause 40 is all about local education authorities having to take a view on what is needed in the provision of education for 16 to 18 year-olds in their area. I agree that “demand-led” refers both to employers and to young people—that is also important—but to some extent young people vote with their feet. We need to know that, if there is a shortage of a particular skill in an area, that is taken into account in the planning process. That is where the whole process of consultation comes in. I am grateful to the Minister for his commitment to think about this further and bring it back. With those assurances, I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

Amendment 93A not moved.

Amendment 94

Moved by

94: Clause 40, page 23, leave out lines 36 to 41

As your Lordships know, the Bill transfers the duty to secure learning provision for 16 to 19 year-olds from the Learning and Skills Council to local authorities. LEAs will specifically have regard to the learning difficulties of their population of learners in determining provision, including those under 25 subject to a learning difficulty assessment. Furthermore, there is a clear duty on LEAs to secure only “suitable education and training” to meet the “reasonable needs” of persons in the area. This is a straightforward and equitable way of allocating resources. The long-standing concept of reasonableness is well established and of course is understood in law. It limits access to provision which may be unnecessary and, importantly, reasonableness takes into account financial cost. In addition, local authorities are required to provide for the efficient and effective use of public funds and, of course, are audited on that basis.

Despite these clear limits on what LEAs have a duty to provide, the Bill offers a further qualification for LEAs to avoid post-16 education provision that gives rise to “disproportionate expenditure”. I am grateful to the noble Baroness, Lady Sharp, who has already expressed our shared fundamental concern about this issue, and indeed our amendments could well have been debated together. I ought to clarify that the Special Educational Consortium shares our discomfort with the term “disproportionate expenditure”, particularly in relation to local education authorities, and agrees that reference to it should be deleted from Clause 40 altogether, as per this amendment.

I am also concerned that the extra barriers faced by disabled people in developing their skills are most likely to incur additional costs that could be judged as disproportionate. LEAs may refuse a service by arguing that the provision is either unsuitable or unreasonable, but where these arguments have failed, I strongly believe that they should not have this further get-out option. The Government have argued that new Section 15ZA(5) specifically states that the provision is not to be viewed as giving rise to disproportionate expense just because it is more expensive than something comparable. In practice, this does not set any restrictions on how LEAs can define “disproportionate expenditure”. On the contrary, where a learner has identified suitable education provision that meets their reasonable needs, they should have the right to access it whether or not they are disabled.

We do not expect a blank cheque, of course. However, the issue of expense often arises where the needs of a learner with a disability can be met only in an expensive, out-of-county residential placement. Where this happens, we believe the problem to be the lack of good quality local options rather than a person with a disability claiming disproportionate resources. Until the system can offer a better choice of provision, we hope that individual disabled people will not have their life chances curtailed because the only suitable placement is relatively expensive. In terms of redress, during the Committee debate in another place, the Government indicated that an individual may challenge an LEA if they feel that the authority is wrongly using disproportionate expenditure as a defence. However, I feel that it is not appropriate to leave it to the individual to enforce the duty on the LEA through judicial review where this will be an additional barrier to disabled people as well, of course, as associated costs. I am deeply concerned about the responsibility this places on people with a learning disability, particularly those with limited support, and so I fear that failure to provide them with suitable education and training may frequently go unchallenged.

I have a number of specific questions around disproportionate expenditure about which the Minister has been given prior notice. Perhaps noble Lords would like to hear them. If expenditure is to be deemed disproportionate, what would it be disproportionate to? For instance, should it be measured against a local authority’s overall budget, the education budget, expenditure on other students or limits set by other local authorities? New subsection (5) states that:

“Provision is not to be considered as giving rise to disproportionate expenditure only because it is more expensive than comparable provision”.

Is expenditure therefore disproportionate if it is significantly more expensive? If so, how much more? Would it be twice as much, or perhaps 20 per cent more? I hope that the Minister can clarify how local authorities should measure expenditure in order to judge what is disproportionate.

The word “reasonable” is well established and understood by the courts in relation to disability legislation, and it includes cost considerations, but so far as I am aware, the meaning of “disproportionate expenditure” has not been decided by a court. Why is this confusing term being used instead? How do reasonable needs and disproportionate expenditure interact? Is it possible to have a need that is completely reasonable, bearing in mind that “reasonable” is a term that considers cost, and yet for that need not to be met if it is considered to incur disproportionate expenditure?

Finally, it is dubious why provision that specifically “might give rise to” disproportionate expenditure should be avoided. The wording implies that potential future costs should be considered by the local authority. Does this, for instance, mean that someone might be denied provision in their local authority just because years later it could oblige an authority to provide that provision to many more learners?

As regards Amendment 143, Clause 40 creates a general duty on LEAs to secure suitable provision for post-16 education, but it does not give any more entitlement to provision than already exists. This means that, to a large extent, the provision available will be at the discretion of the LEA. While this is not necessarily a bad thing, it will be absolutely vital to ensure that LEAs are required to monitor and report on their performance so that they can be held accountable to the public for their decisions.

In Committee in another place, the Government argued that structures are already in place to ensure that local authorities can be held to account for the delivery of their new duties under the Bill. LEAs will become part of the existing outcomes-focused performance management system supported by government offices, and they will also be assessed and inspected by Ofsted. We feel that these mechanisms are not robust enough to ensure LEA accountability and we need a far more targeted accountability mechanism.

The amendment is particularly concerned with how an LEA’s performance of this duty towards learners with learning difficulties will be audited and how, in particular, the failure to provide suitable education to learners with more complex needs will be monitored and addressed. However, improving accountability can only benefit all learners and allow LEAs to map provision and address gaps in the market appropriately.

The amendment mirrors the sufficiency duty contained in the recent Childcare Act, a widely supported measure at the time. The Government state in their guidance that the childcare sufficiency duty is designed to help local authorities to identify the nature and extent of the need for provision and, where there are gaps, plan how to support the market to address them. The measure includes giving scope for a three-yearly review of the provision for people with disabilities and learning difficulties. Young people with disabilities and learning difficulties would be involved in the audit and the results of the audit would be published. This process will go to the heart of ensuring that the apprenticeship scheme leads to truly positive outcomes for learners with a learning disability and would avoid the past mistakes of many courses which ultimately lead nowhere. I beg to move.

I must advise the Committee that if the amendment is agreed to I shall not be able to call Amendment 100 because of pre-emption.

My name is linked with those of the noble Lords, Lord Rix and Lord Low, on the amendment, to which I happily give support. The key issue has been raised by the noble Lord, Lord Rix: that is, what is disproportionate? How do we judge disproportionate in this sense? I look forward to hearing what the Minister has to say.

As to the proposed new clause in Amendment 143, again as the noble Lord, Lord Rix, has said, it is necessary that local authorities should have a more targeted approach to those with learning difficulties. The proposed new clause sets out in detail precisely what is required. We have all had experience of how there are often difficulties in delivery despite the legislation that has already been passed, and it is useful to spell out in some detail precisely what is required. I give my wholehearted support to both amendments.

Like the noble Baroness, Lady Sharp, I have put my name to Amendment 94 of the noble Lord, Lord Rix, not because I want to see subsection (4)(e) of new Section 15ZA of the 1996 Act removed from the Bill but because it is important to probe the Government’s intention on this point. The paragraph enters the proviso that the LEA must make the best use of its resources and must not provide for anything that would,

“give rise to disproportionate expenditure”.

I am curious about how the Government intend to enforce this area of the Bill. While it is admirable, it will be difficult to enforce for two main reasons. First, it will be difficult to measure what the best use would be of an authority’s resources, given that it will have to provide very different services for a range of diverse groups of people. Each group will have its own needs and concerns, and I cannot see how the LEA will decide which service will accord with the best use of its resources.

Secondly, and this echoes the concerns expressed by other noble Lords, this provision may provide the get-out clause for local education authorities that are on a tight budget and might therefore seek to reduce spending on providing for those with learning difficulties or other disabilities. I sympathise with the LEAs in this respect; we on these Benches think that the devolution of the duties involved in providing education will stretch resources and put a great deal of strain on already struggling authorities. Nevertheless, it is also vital that those with learning difficulties or any form of disability are not left behind.

Subsection (5) of the new section attempts to clarify that expenditure should not be considered disproportionate just because it may be more expensive than comparable provision. However, as the noble Baroness, Lady Sharp, said, more clarity is still needed if we are to ensure that LEAs are able to run educational provision that will include all relevant people while simultaneously making the best use of resources.

Amendment 143 seeks to ensure that local authorities have a duty to carry out assessments of the sufficiency of the provision of suitable education for learners with learning difficulties. I will be interested to listen to the Minister’s response to it, given that I am not sure how, without such assessments, it would be possible to ensure that provision for learners with learning difficulties was being adequately provided. If such an assessment cannot be made, how will it be possible to make improvements to the system? I look forward to hearing the Minister’s response.

I cannot believe that the Government intend by the inclusion of this clause to hit the provision of education and training for young people with learning difficulties or with a disability. While I entirely support what the noble Lord, Lord Rix, and two opposition Front Bench spokesmen are saying about the importance of providing adequate provision for those who have special needs, and about the fact that such provision might cost more than would be the case for young people without those special needs, I cannot believe that that is what lies behind the inclusion of this clause. I am sure that the Minister will put us right on that issue.

My problem with the clause is that I cannot quite understand why we need to say in legislation of this sort that a local education authority should make the best use of its resources and that it should avoid provision that gives rise to disproportionate expenditure. It goes without saying that every local authority should make the best use of its resources in everything it does and should not have disproportionate expenditure, which I take to mean unnecessarily high expenditure when it could be done just as well for less money.

Why has this clause been put in the Bill? It looks like central government, in teaching-grandmothers-to-suck-eggs mode, telling local government what to do. We already have extensive regulation of local government expenditure, with a lot of pressure on value for money through the work of the Audit Commission. We already have Ofsted inspecting local education authorities—not just their educational provision but the work of the authorities right across the piece. In that inspection of work, Ofsted is looking at value for money and at whether a local authority is having regard to its expenditure and making the best use of scarce resources. This, frankly, is overegging the pudding.

This is, effectively, the second go we have had. The previous time the Committee sat, more or less the last thing we discussed was—as the first amendment of the noble Lord, Lord Rix, puts it—these few lines in question. As the noble Baroness, Lady Blackstone, has pointed out, they merely add to the confusion and raise worries that may prove to be false. That may not be the Government’s intention but these lines are quite clearly confusing the issue. Which bits of these six lines are the most important in which situation? That is one question that we have not had answered.

I gave examples from my own experience of where people say, “We can’t do it if it’s something new”. There is a huge history of that in all forms of special educational needs provision—“Oh, they can’t do that because they’ve never done it”. Even if the current Government are better than any Government before, which is a defence that the Government make, my standard response to that is that they should be; they have more resources, more knowledge and more ability.

What is the benefit of these six confusing lines? The noble Lord, Lord Rix, pointed out that we have a good concept of reasonableness established in law, while the noble Baroness, Lady Blackstone, has said that this seems to be confusing because there are already audits and tests for what is best value for money on various occasions. Why do the Government desperately need this? If they get rid of it and go back to established principles, they will probably save everyone a great deal of time and energy.

Surely the answer to that is simple. The Government know exactly what is going on at the moment; they know the current form of words that the noble Lord, Lord Rix, explained so cogently, and they have chosen a different form of words in order to alter the entitlement of the people who are subject to this subsection. Is it to increase their entitlement or decrease it? I think I know the answer to that.

I strongly support what my noble friend Lord Rix has said. I cannot help but reflect on one word that crops up over and again when one considers the provision of these services: consistency. My noble friend has already mentioned that there is a problem; certainly, in different parts of the country there are different provisions for people with the same need. That is something that I am sure we would all like to see eliminated.

As my noble friend has said, Clause 40 says that,

“A local education authority in England must secure that enough suitable education and training is provided to meet the reasonable needs of persons”.

However, there is another complicating factor on top of the inconsistency that that will expose between all the local education authorities. Clause 59, which we have not yet come to, says that the Young People’s Learning Agency,

“must secure the provision of financial resources to … local education authorities, for the purposes of their functions in relation to education or training”.

So on top of the inconsistency of the local education authority provision, we now have the YPLA responsible for funding. Is there any intention that the YPLA should be directed to make certain that there is consistent funding for all this provision? Otherwise, what is the situation into which we are going to be launched?

I sympathise with the amendment and thoroughly support the way in which my noble friend Lord Rix presented it. From some of the briefing that I have had from the department, I think that the intention behind this was in fact a good one: at the same time as hoping that there would be value for money, which is a perfectly sensible thing to say, the intention was that the local education authority would take into account the special needs of people with disabilities. I have some sympathy with the Government, but equally I feel that they have made the situation worse. Maybe the answer will be to take the whole thing back and try to do it as simply as possible to get the message across.

Above all, I was going to make the same point as my noble friend Lord Ramsbotham. We all know that there is inconsistency and a postcode lottery as far as local education authorities are concerned. By no means are those with most resources necessarily the most generous. Let us put it like that. I hope very much that we will get some reassurance. I hope that there will be something rather more dramatic from the Government, and that they will take this whole thing away. Quite clearly, it is not going to work. That was outlined in the other place and it was definitely stated again in your Lordships’ House.

I too support Amendment 94 and express my gratitude to the noble Lord, Lord Rix, for tabling it. I will concentrate particularly on the use of the word “might” rather than “would” in line 37 of subsection (4)(e) of new Section 15ZA of the 1996 Act. It seems quite inevitable that this subsection will lead to less provision for those with learning difficulties because the way in which it is phrased means that a local authority is bound to pay what seems unnecessarily immense caution to just the possibility that there might be disproportionate expenditure in the future. I am aware of how much effort and energy goes into providing often excellent provision for those with learning difficulties. There will, it seems, inevitably be a restriction in that provision if we do not do something about this whole section of the Bill and, in particular, line 37. I hope that the Minister will be able to comment on the use of the word “might” in that line.

Having arrived late for the debate I will restrict my comments to an endorsement of one of the points made by the noble Baroness, Lady Blackstone, namely the unacceptability of paragraph (e) of the new section. It activates a principle that is often referred to in this House—inclusio unius est exclusio alterius. If you apply a specific requirement to a particular category, it implies that all the other categories are not included. Therefore, it gives precedence to making the best use of resources only in this case, and reduces the pressure on local authorities in any other provision within this statute. I have been told by lawyers again and again that that is the effect of doing this sort of thing, so I hope that the Government will pay close attention to what the noble Baroness, Lady Blackstone, said.

I support Amendment 143 in the name of my noble friend Lord Rix, having taken part in the Childcare Act, which placed a duty on local authorities to secure sufficiency of childcare places. I think it established the principle that there needed to be assessments if the duty was to be complied with. I also ask the Minister—perhaps he would be kind enough to write to me—to assure the Committee that there is a sufficient mechanism to ensure that there is an assessment of whether the learning needs of young people in care and care leavers are met. I am grateful for what has already been done in the Bill for care leavers, particularly in securing sufficient apprenticeships as young people leave local authority care. A local authority should have a fair idea of how many young people leave care each year and should be able to seek employment opportunities and apprenticeships to meet that need. I would be grateful to hear what sort of mechanisms are in place in that regard, especially since we know that local authorities have not, until now, been very good at providing apprenticeships.

As my noble friend Lady Blackstone reminded us, we need to establish that making the best use of their resources is a key principle of how all public bodies do business. Subsections (4)(e) and (5) ensure that. That is in learners’ interests because if local authorities commission particular provision in a way that does not give value for money, there will be less money available to support other learners. I know that throughout this debate noble Lords have taken the view that this is somehow a get-out clause and that is its sole purpose. That is by no means the intention and I will demonstrate why that is the case as I proceed.

There is a real need for us to ensure that, even in special needs provision, we are still getting value for money. It is not an attempt to say that we do not want to go down a particular route. I am sure that the noble Lord, Lord Rix, could find a number of examples of where he would have to choose between providers and might find that one offered better value for money than another. It is not an attempt to avoid responsibilities or not provide a service. We are trying to make sure that, in getting the best value for money, we can reach the widest possible group of people who need this service. We are all starting from the same intention and should not see value for money as meaning that we will deny people rights and opportunities. I would argue that it is the other way round. We are making sure that more people get the opportunities, services and support that they need.

This is not about comparing the provision needed for one group of learners against the provision needed for different groups with different needs and saying that meeting the needs of one group, because it is more expensive, involves incurring disproportionate expenditure. It is about looking at the needs of young people and the provision available and commissioning the provision that meets those needs, while also providing value for money. Requiring value for money when commissioning education and training is not a new requirement. Under Section 2(3)(e) of the Learning and Skills Act 2000 the Learning and Skills Council is required to,

“make the best use of the Council’s resources and in particular avoid provision which might give rise to disproportionate expenditure”.

There is no suggestion that this requirement has in any way affected the LSC’s ability to provide appropriate learning provision for young people with learning difficulties and disabilities. Indeed, one consistent message to come from the conversations that I have had with Skill, the RNIB and others in the past few weeks is that the LSC has a very good track record in this area, despite having this disproportionate expenditure criterion.

The Learning and Skills Council was a centralised funding programme with annual targets set each year by the Secretary of State. Local authorities are entirely different. They have complex structures, increasingly stretched budgets and political considerations. There will be far more scope for local variability and considerable risk that some disabled people will miss out, based on a local authority’s circumstances and their particular problem.

I will return to that point. I think that that is where the role of the YPLA will prove important.

It was felt that it would be helpful to replicate this provision for local authorities. Although they already have a general duty, under the Local Government Act 1999, to secure value for money, this does not apply to the YPLA. By giving both local authorities and the YPLA a comparable duty which specifically relates to education and training provision, we can be sure that they approach such issues in the same way. If the proposed amendment was made, the commissioning system could, in fact, be less effective.

There can be no question that replicating this clause is somehow a get-out clause for local authorities. As I have already mentioned, their duties to secure provision for all young people in their area, including those with learning difficulties or disabilities, is set out clearly in new Section 15ZA. We would not want to do anything to undermine this.

Let us look at the track record. Funding for specialist provision has increased significantly over recent years, from £35 million to fund 3,000 learners in 2000, to £180 million for 3,500 learners in 2006-07. The DCSF has made available additional funds through the Invest to Change programme to improve provision for learners with learning difficulties locally. We are committed to continued investment in this area and we have been clear that this will remain a priority when responsibilities transfer to local authorities. This clause is about ensuring that we make the very most of this investment for the benefit of the young people at whom it is aimed. Ensuring value for money when commissioning provision will free up resources to support those young people with the most profound needs.

Amendment 143 would introduce a new duty on local authorities to conduct a full assessment of the suitability of provision for learners with learning difficulties and/or disabilities at least every three years. The noble Lord, Lord Rix, raised this issue at Second Reading and this amendment has been modelled on that included in the Childcare Act 2006. As my noble friend Lady Morgan has written to the noble Lord to explain, we are putting in place a system to ensure that this planning function takes place. However, we do not feel it necessary to legislate for this specific administrative process and I am happy to set out the reasons why for the Committee now.

I should like to reassure the Committee and my noble friend that we are putting in place a system which will ensure that this essential planning process takes place annually, as part of the annual commissioning cycle, and not just every three years, as proposed by the amendment. Local authorities will not be on their own. They will come together, and they have already agreed to do this, as sub-regional groupings that will act as planning bodies. We will support them to build on their existing expertise in this area. They will be required to have regard to guidance on this annual commissioning cycle—this is the point made by the noble Lord, Lord Rix—which will be set out by the YPLA in a national commissioning framework. This guidance is currently being developed in collaboration with our key delivery partners and stakeholder groups, including the National Association of Specialist Colleges. We are not trying to develop this guidance on our own. We are consulting the people and the representative bodies that we know are experts in this field.

There will be a dedicated national team in the Young People’s Learning Agency for learners with learning difficulties and disabilities. Regional specialists will provide advice and expertise to local authorities to help them in, among other things, planning specialist provision across local borders, something we know is vital. The React team based at the Local Government Association is already working with authorities to prepare them to take on their new responsibilities. It is also important to remember that local authorities will not be starting from a zero base. Local authorities will already have been working with many of the young people concerned as they were growing up. They already hold a significant amount of information about their needs through the client case load information system database and will be further supported in future with strategic analysis and historic data on learner trends and local needs, provided by the YPLA.

Accountability was raised by a number of noble Lords. There is a range of ways in which local authorities will be held to account. As part of the existing system, local authorities will be performance-managed in relation to the outcomes of young people in their area. Government offices will provide support and challenge to ensure satisfactory performance. Assessments and inspections by Ofsted and other inspectorates will provide a further check on local authority performance. In addition, as I mentioned earlier in the debate, the YPLA will have a clear role in assuring coherence of regional plans.

I want to come back to some points that were made. The noble Lord, Lord Ramsbotham, raised the issue of consistency. As I said to the noble Lord, Lord Rix, the consistency we hope to achieve will be through the national commissioning framework and a national funding formula and we seek consistency in all areas. If necessary, the YPLA can be directed by the Secretary of State, through Clause 73, and we will examine whether there is a problem as this rolls out, subject to the passing of the Bill.

I know that the noble Lord, Lord Lucas, tends to see the glass as half-empty rather than as half-full, in this area, certainly, and maybe in others. We will seek to increase the entitlement because, by providing value for money, more money will be available for more learners who need it most. The right reverend Prelate expressed his concern that the driving force would be to have less provision. We would say, look at the track record. We still had disproportion there. In fact, we have increased support and that is right, because we know that demand has increased.

I was asked about “disproportionate” as a comparator. The comparison is between the provision and its cost. Is the cost proportionate, taking all relevant considerations into account? This is about value for money. That is why new Section 15ZA(5) says what it says. Relative cost is not the only thing for local authorities to consider. Others will explain better than I can that value for money is not necessarily about getting the cheapest—we know that from bitter experience in many circumstances—but about getting the best that you can for the money. A local education authority will have to make its own decisions about the best use of resources. It will definitely have to consider its own budget and may well look at what other LEAs are spending for guidance.

My noble friend Lady Blackstone says she cannot believe that what we are doing is necessary; that it goes without saying. Why are we doing this? Well, there is a general duty, as I think she referred to, in the Local Government Act 1999, which already applies to local authority functions, but not to the Young People’s Learning Agency, which has specific value-for-money duties similar to those in Clause 40(4)(e) and (5).

I absolutely accept that there may be a need to apply this to the Young People’s Learning Agency, but what I cannot understand is why, because it is necessary in that respect, it also has to be applied to local authorities, when there is already a general duty on local authorities in the 1999 Act. The danger is that every single piece of legislation brought to this House or another place that entails expenditure by local authorities will then have these clauses put in them. That is what I am seeking to prevent. Perhaps the Minister will take this back and consider whether we need to replicate it here. I can see why the Government may have needed it when legislation was introduced on the Learning and Skills Council some years back, but it looks to me as if there has been an automatic application of what applied to the Learning and Skills Council to local authorities when it is not necessary, because it is already embodied in legislation.

I am conscious of the time. I take account of the concerns that have been raised, which I understand. As I said, we are still in discussion with the SEC. We have already said that we do not want to do anything which in any way undermines the role of local authorities in meeting these vital needs. The best thing that I can do in the circumstances is to take away the points that have been raised and come back to noble Lords before Report. On the basis of that assurance, I hope that the amendment will be withdrawn.

I apologise for doubting the Government’s intentions. The noble Lord has made it perfectly clear that their intentions are pure, and that this is just a bit of drafting mess, which as the noble Baroness, Lady Blackstone, so rightly says, deserves to be cleared up. If the noble Lord’s explanation of the word “disproportionate” and its effects is right—I cannot see how that can be construed from the clause as it sits—and if it is intended to mean what the noble Lord said it is intended to mean, it is entirely unnecessary because it falls exactly within the duties as specified by the noble Baroness, Lady Blackstone.

Care leavers may be outwith this amendment, but at the very welcome annual meeting of the regional commissioning for educational provision an item might be put on the agenda suggesting that talks be held with the YPLA about local authority apprenticeship provision for care leavers. That would involve only a few children leaving care each year. There should be some mechanism to ensure that local authorities think very carefully about this and supply as many as possible.

I am most grateful to all noble Lords who have spoken in support of these amendments. I am very grateful to the Minister for saying that he will take the provision back, look at it and consult again with the SEC. I hope that I can be present at one of those meetings, which will probably take place during the recess as I cannot believe that we will reach Report before October. In that case, and as I have just had a message to telephone my home urgently, I beg leave to withdraw the amendment.

Amendment 94 withdrawn.

House resumed.

Swine Flu


My Lords, I should like to repeat a Statement made in another place.

“With permission, Mr. Speaker, I would like to make a Statement on the A(H1N1) swine flu pandemic. As of today, there are 7,447 laboratory-confirmed cases of swine flu in the UK, of whom a significant number have been hospitalised. Three people have sadly died, all of whom had underlying health problems.

Since the first UK case was confirmed on 27 April, health protection officers, NHS staff from across the UK, and Department of Health officials have been leading the fight to contain the virus. Last week, we started to see a considerable rise in swine flu cases, and the emergence of hotspot areas in London, the West Midlands and Scotland. Since then, cases have continued to rise significantly. There are now, on average, several hundred new cases a day.

This creates challenges on the ground and pressure on services, but the response from the health community has been tremendous. I hope the House will join me in putting on record once again our sincere thanks to the staff in the Health Protection Agency and the NHS, general practitioners and all those who work in primary care. Our efforts during the containment phase have given us precious time to learn more about the virus, to build up antiviral and antibiotic stockpiles, and to develop a vaccine.

We have always known it would be impossible to contain the virus indefinitely, and that at some point we would need to move away from containment to treating the increasing numbers falling ill. That is why last week I announced the move to the outbreak management phase. This gave hotspot areas, where there is sustained community-based transmission, more flexibility to deal with the virus.

Scientists now expect to see rapid rises in the number of cases. Cases are doubling every week and we could see more than 100,000 cases per day by the end of August, although I stress this is a projection only. As cases continue to rise, we have reached the next step in our management of the disease. Our national focus should be on treating the increasing numbers affected by swine flu. Based on experts’ recommendations, and with the agreement of Health Ministers across all four Administrations, I can today tell the House that we will now move to this treatment phase across the UK. This will mean that in England the Health Protection Agency will take a step back and primary care will take the lead in diagnosing and distributing antivirals.

There will be an immediate end to contact tracing and prophylaxis in all regions; GPs will now provide clinical diagnosis of swine flu cases rather than awaiting laboratory test results; and primary care trusts will now begin to establish antiviral collection points where necessary. This new approach will mean an end to the daily reported figures from the Health Protection Agency.

Our policy on schools is that they should not close because of individual cases of swine flu but they could close if the particular local circumstances warranted it. For example, there may be grounds for closure if a significant number of pupils or teachers are ill. The HPA will advise on outbreak control issues as usual and closures would be reported to the Department for Children, Schools and Families.

I must emphasise to the House that the Civil Contingencies Committee has had lengthy discussions, drawing on expert scientific advice, about who should be treated with antivirals if they contract swine flu. Health Ministers across all four Administrations have noted clear scientific advice that the majority of cases in the UK have so far not been severe, with those catching the virus making a full and fast recovery, though a minority of people here and overseas have had more serious illness and some have died.

As we move into the treatment phase, Ministers have considered whether we continue to offer antivirals to all patients displaying symptoms or whether a more targeted approach should be adopted, focusing on those most at risk of becoming more seriously ill. When very little was known about the disease—and especially given the reported fatalities in Mexico—using antivirals prophylactically was sensible to protect people, and may have helped contain the initial spread of the disease.

During the containment phase, experts have had time to study the virus. Some experts now suggest that since the virus has proved largely mild, antivirals should be used only to treat those in designated “higher risk groups”; that is, those more susceptible to developing serious illness or complications. These are all the groups at risk from seasonal influenza, plus pregnant women and children under five. They argue that overusing the drugs can increase the chances of antiviral resistance, and exposes too many people to the risk of side effects from the medicine.

The Scientific Advisory Group for Emergencies says that, on balance, the science points towards a targeted approach, but acknowledges that this is a “finely balanced” decision. Expert advice points to the fact that, as this is a new virus, its behaviour cannot be predicted with certainty. Swine flu is different from seasonal flu in that most serious illnesses have been in younger age groups, as happened in all three 20th-century influenza pandemics. A doctor faced with a symptomatic patient cannot yet predict with certainty the course of their illness and whether or not they will be in the small proportion who may become more seriously ill.

Given this, we have decided to take a step-by-step approach. This means that, as in the outbreak management phase, we will continue to offer antivirals to all those who have contracted the illness. However, it remains a matter of clinical discretion to decide whether antivirals should be prescribed in individual cases, particularly in circumstances where doctors are likely to be contacted by patients with coughs, colds and the worried well, in addition to those with swine flu. Expert advice emphasises the high importance of treatment with antivirals of those in the higher risk groups, so we will issue clear guidance to doctors to ensure that those at higher risk get priority access to antivirals within 48 hours of the onset of symptoms.

I acknowledge that this is a cautious approach. Many people will be able to recover from swine flu without the need for antivirals, and may therefore choose not to seek treatment. However, we are much closer to the time when we will receive the first doses of pandemic flu vaccine. This will potentially offer high protection. In the mean time, it is prudent to use our only current measure against the virus—antivirals—to the maximum effect. The science indicates that as we discover more about the virus and develop a more precise categorisation of risk groups, we are likely to reassess our approach and move to a more targeted use of antivirals. We will keep this matter under review, with advice from SAGE, and will update the House as and when this is necessary.

Today we will set out these new arrangements through a short guide that will be e-mailed to NHS staff, and will be available online to the public. I know that local GP surgeries and hospitals, particularly in hotspot areas, are coming under increased pressure. So it is important that we do everything we can to reduce the strain on local health services and begin to establish and use alternative routes for people to receive treatment. Initially, this will be via or the swine flu information line; subsequently, it will be via the National Pandemic Flu Service.

So, if people think they have swine flu, they should first go online and check their symptoms on or call the swine flu information line on 0800 1 513 513. If they are still concerned, they should then call their GP, who can provide a diagnosis over the phone. If swine flu is confirmed, this will give them an authorisation voucher, which a flu friend can take to an antiviral collection point to pick up their antivirals. This may be a pharmacy or a community centre.

As cases rise further, we will move to a system whereby cases are diagnosed and dealt with by the National Pandemic Flu Service. This will take pressure off GPs by allowing people to be diagnosed and given their antiviral vouchers either online or via a central call centre.

Today, I can tell the House that preparations are now at an advanced stage, and that we expect the service to be ready when it is needed. At that point, if people have swine flu symptoms, they should go onto the National Pandemic Flu Service website, or ring the dedicated call centre. However, people in the higher-risk groups should still contact their GP.

Finally, I would like to update the House on vaccines. We have now signed contracts to secure enough vaccine for the whole population. We expect the first batches of vaccines to arrive in August, and around 60 million doses will be available by the end of the year—enough for 30 million people—with more following after that. Administering vaccines will need to be prioritised. We will make a decision on this when we know more about the risk profile.

Most cases of swine flu have been mild and we are in a strong position to deal with this pandemic. But we must not become complacent and, while doubt remains about the way the virus attacks different groups, today’s decision on the move to the treatment phase reflects our caution.

I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, from these Benches, I should like to thank the Minister for repeating the Statement, which makes it very clear that we have moved into a new phase of the epidemic involving a much greater number of current cases than we were looking at a month or so ago, and the probability of an even higher number, by several orders of magnitude, during the coming weeks. The national and local response to this situation is quite rightly under continual review, and I accept that it is now appropriate to modify our approach to the way that we tackle the disease. Our emphasis now, as the Minister said, has to be on mitigating its impact on those who have contracted it, taking into account the severity of the virus. That must mean that we make sure that those who are most at risk of severe morbidity or complications as a result of the virus are treated rapidly.

Against that background, I have a number of questions. Am I correct in understanding from the Statement that the stockpile of antivirals will be reserved exclusively for symptomatic patients and those who are seen as being most at risk, and that post-exposure prophylaxis is no longer a strategy that will be pursued, other than with the approval of a GP? I ask this because I wonder about particular situations; for example, what is the policy to be applied in prisons? Are healthcare staff and employees of the emergency services not seen as possible deserving cases for post-exposure prophylaxis?

Can the Minister confirm that a decision on whether to close a particular school will be taken on the basis of a risk assessment by the HPA, particularly in the context of the year groups involved, but that closure of a school should no longer be seen as the preferred option, as I think it has been up to now? Most schools are about to break up for the holidays, which is fortunate, but this means that when term is about to start again in September there may be insufficient information available on which to base a decision on closure. Will schools be advised about the transmission rates in their own areas and other relevant information, including what they should do before the start of term?

What advice is being given to the public as regards avoiding exposure to potential infection? It has been reported in the press that there is a school of thought which states that it is in the interests of fit and able-bodied people to try to contract the virus in order to build up immunity to what may be a more severe version of it in the future. Can the Minister take this opportunity to indicate that this is not sensible advice and that the current virus, although milder than initially feared, is nevertheless capable of making people ill or, indeed, very ill, and that the prudent course is to try to avoid it?

The Minister said that swab tests for swine flu are no longer being taken as a matter of routine and that, as a result, the running total of cases will no longer be a matter of public record. I am sure she will agree that that is unfortunate, and I cannot help observing that if the flu line were up and running, that situation would not have arisen, because we would have had a better handle on the numbers. However, can the Minister confirm that the collection points for antivirals are now determined in all areas? Can she also confirm that the interim helpline for those who suspect that they may have contracted H1N1 is working satisfactorily and that it has the capacity to deal with the very high volume of calls which are likely to arise during the next few weeks? If there are likely to be many tens of thousands, if not hundreds of thousands, of new cases by the end of August, what guidance has been issued to NHS trusts to enable them to cope with the high numbers of hospitalised patients that can be expected? What is the Government’s view of the capacity of our system to cope with critical care cases on the scale that is implied? Has modelling been done which shows the probable impact of severe cases on critical care beds? What is the clinical attack rate of this virus?

Finally, the Statement referred to the vaccine currently in preparation. The question of who is given the vaccine will be decided, in the words of the Statement,

“when we know more about the risk profile”.

Can the Minister elaborate on what is meant by this? Do we not already have sufficient information to tell us who is most at risk? If not, when do the Government expect that we will have enough to go on? The Government have, after all, already defined the at-risk groups as regards the use of antivirals. At all events, will the Government undertake to make public the basis of prioritisation once this has been determined?

I end by joining the Government in expressing my condolences and sympathy to the families of those who have died of the virus. I also pay tribute to the staff of the NHS, including officials, GPs, those in primary care, in pathology labs, in hospitals, and the Health Protection Agency, who are working so hard on our behalf. We wish them well during what look certain to be some very difficult and pressurised few weeks ahead.

My Lords, I register our condolences from these Benches to the families of those who have died. I thank the Minister for repeating the Statement in this House. Given the dramatic increase in the number of people who have contracted flu, it is right that we should reassess whether the strategy that the Government have been following continues to be relevant and the right course of action.

While the Government’s actions to date have rightly been focused on trying to contain the virus and then to mitigate the effects of its transmission, there is a parallel activity to monitor the information about the incidence of the disease and to evaluate the effectiveness of the NHS response. That is in many ways as valuable an activity. It will set out some valuable learning points, were there to be a future pandemic of another disease. I put my questions to the Government in that light.

The noble Baroness said that the Government were now moving to the treatment phase. I understand the reasons for that, but what lessons have been learnt from the containment phase of the strategy? She indicated that there had clearly been a failure to contain the virus. That failure was not entirely unexpected, but what have the Government learnt so far about the ability of the NHS to contain outbreaks? How would that be of value in any future pandemic? To what extent has the progression of the epidemic matched predicted modelling, which I believe the NHS has undertaken for some considerable years?

I have one nagging question about the Statement. Was the decision to offer antivirals only to high-risk groups made purely on scientific advice or was it an economic decision as well? What is the department’s response to that?

The noble Baroness made the important point that there will be a changed role for the Health Protection Agency. It will now step back and the immediate registering and treatment of the virus will go to primary care, in particular to GPs. Has the department estimated the extent to which drawing back the HPA from its front-line role will jeopardise the tracking of data that it has been gathering about the progression of the pandemic? Does the changed role of the HPA offer any risk to the spotting or detection of a mutated virus? The noble Lord, Lord Darzi, recognised as a key problem the chance that the virus might mutate, which could mean that the antivirals that we have are not so effective.

Following the noble Earl, Lord Howe, I ask what the Government plan to do, particularly over the critical period of September, October and November. During that period, the start of the academic year, not only will schools be going back but a number of students will be coming to this country to universities. As always, we welcome them, but that will coincide with the peak activity period for the seasonal flu programme. Is the department now preparing to give additional plans and guidance to primary care staff to cope with a potential spike in demand over those three months?

Can the noble Baroness update the House—this was not in the Statement—on the liaison that the Government have had with foreign Governments and with the Centre for Disease Control in Atlanta and the European health observatories? We can then track any parallels or distinctions between the progression of the virus in this country and its progression abroad.

In the Statement, the noble Baroness mentioned the Scientific Advisory Group for Emergencies—the aptly named SAGE. She said that the change in policy to target only high-risk groups was based on SAGE’s evidence but that that decision was, in its words, “finely balanced”. How quickly have the Government acted on the advice that SAGE has given to date? How quickly could they act were SAGE to give different advice if that balance changes in future?

I, too, congratulate the scientists and front-line practitioners in the NHS on the way in which they have approached this pandemic. It is clear that the NHS has had to deal with a most difficult public health problem. Individuals recognise that it is a public health risk, but it is one that they cannot measure and quantify; they do not yet know how serious this condition will be for them and their families. So far, the NHS has managed to keep the tenor of its information campaign correct. In the face of some rather hyperbolic headlines, the NHS is to be congratulated on having got on with doing a difficult job in a temperate manner.

My Lords, I thank the noble Earl and the noble Baroness for their support and for their recognition that the NHS has had pandemic plans in place and that the Health Protection Agency, with the NHS, has to date done an excellent job working to limit the spread of this virus. I will attempt to answer the questions that they raised.

The noble Earl asked about the policy of antiviral prophylaxis and treatment. There will be an end to antiviral prophylaxis in the norm. Treatment will be for those at higher risk of becoming severely ill. There will continue to be a clinical discretion to offer antivirals to any patient should the need arise, particularly those who we recognise would need that support, such as health service workers. I had not thought of prisons; that is a good case. I will refer that back to the department for consideration. I am sure that somebody there will have thought about it.

On school closures, as I said in the Statement, the HPA will help with the risk assessment, but this is not now seen as a preferred option. The noble Earl made the point about schools being about to break up and restarting in September and about our need to ensure that the information is available to them so that they are in a state of preparedness. It is a point well made. Indeed, it is in hand. Running alongside the activity of moving to treatment is a huge communications campaign to inform people and health service workers. That will make sure that schools and all those who need to will know what is going to happen and how it will happen—in what order—in a timely fashion.

Who will be offered antivirals? The use of antivirals for prophylaxis will stop. As I said, they will be used only in exceptional circumstances. With transmission in the community, the policy of widespread prophylaxis is no longer appropriate. There will continue to be clinical discretion to offer antivirals to any patient should the need arise. They will be offered to people who are diagnosed with swine flu. Anyone who thinks that they have swine flu has the right to ask their GP for the health service to provide them with antivirals.

The noble Earl raised the issue that I had anticipated about what the media have called “swine flu parties”. The Chief Medical Officer has made a firm statement about that, which I can do no more than repeat:

“We would never recommend intentionally exposing anyone to swine flu. It is seriously flawed thinking to allow the virus to spread unabated through swine flu parties. We don’t yet know enough about the risk profile of the virus and, whilst it has been mild in the UK, in some parts of the world young, previously healthy, adults have died. Parents would never forgive themselves if they exposed a vulnerable child (perhaps a contact of a child at a party) to serious illness. We need to be mindful of any future development of the virus and we remain vigilant in monitoring the disease”.

I do not need to add to those words.

What support is being made available to primary care trusts, GPs and the health service? We are aware that GP practices must expect to be under considerable pressure during the flu pandemic. I have already mentioned the local flexibilities that we have introduced in the hot spots to enable primary care to sustain its response. The national flu service has been designed to minimise the pressure on GPs and primary care teams in a widespread outbreak by allowing patients to receive their antiviral medication via the web, a telephone call or a local network. That means that GPs can concentrate their expertise on treating patients whom they would normally see, plus those who have complications of the flu, as opposed to the potentially very large number of patients who think that they might have flu. Our aim is to divert those patients into the swine flu support mechanism through the web and a telephone line.

How will intensive care manage this? We know that fluctuating demand for and capacity in the NHS are part of normal working activity, but in May we published guidance for the NHS entitled Pandemic Flu: Managing Demand and Capacity in Health Care Organisations. We are giving support as far as we can.

Communication is very important. A communications strategy goes with this, which I have already outlined. The flu surveillance information on infections is co-ordinated and collated by the Health Protection Agency Centre for Infections. It receives regular reports from separate schemes run in England, Wales, Scotland and Northern Ireland, which use the data provided by networks of GPs. The GP network includes 3,300 surgeries covering more than a quarter of the UK population and provides reports on symptoms of flu in patients as part of the QSurveillance system. A further 100 surgeries across the country collect information on flu symptoms as part of the Royal College of General Practitioners’ surveillance. That is during the normal flu season but the fact that we are moving into this new phase does not mean that we will not be surveying and counting.

The noble Earl asked how we predict the disease will progress. Obviously, we cannot predict the spread of the disease precisely, but we know that it has proved to be mild, except in a very few cases. Apart from the figures that I gave in the Statement, I cannot give any further information. The noble Baroness and the noble Earl asked how we will manage the transition. At the moment, we have an interim service, which we felt we needed to introduce immediately because of the increase in swine flu. We recognise that it is important to ensure that the systems are sufficiently tested before they are used. The interim solution has now been tested. It has the capacity to cope. A full programme of testing has been built into its delivery line, before a full system kicks in in the autumn.

The noble Baroness also asked about the lessons that we have learnt from the hot spots and the period that we are just passing out of. The Health Protection Agency, with the NHS, has done an excellent job in limiting the spread. We have learnt that what we need to do when we realise that we have hot spots is immediately to give flexibility locally to reduce the number of patient swabbings, to reduce the pressure on GPs to allow them to treat symptomatic patients on the basis of their clinical judgment, to ensure that other staff such as primary care nurses can swab and to ensure rapid access to antivirals. That is the phase that we are moving into now. The lesson that we have learnt is that that is how we need to proceed.

On the international situation, we fully recognise the importance of ensuring proper protection for countries in Europe and globally. I probably need to write to the noble Baroness about the spike of students coming back to this country in September and October; that is a point very well made. We support the European Commission in helping those countries without contracts to obtain vaccine for a minimum of 5 per cent of their population. We continue to work with the ECDC and the World Health Organisation and we will ensure that we do not duplicate what the World Health Organisation does but that our work in Europe complements it.

My Lords, I thank the Minister for repeating the Statement by the Secretary of State, which I welcome, because it helps to clarify government thinking and intentions on this important topic.

The Minister will be aware that the House’s Select Committee on Science and Technology this morning met the Minister of State for Public Health to take evidence on this and related matters. The first piece of evidence was that a Statement would be made later in the day. However, I can fairly say that that did not inhibit what was a vigorous but good-natured discussion. One piece of evidence available to us and to the relevant Minister was from the Royal College of General Practitioners. I agree with all that has been said positively about the important role that general practitioners play, but there were some questions in the evidence that we received. For example, headings coming through the website from GPs included lack of information and conflicting advice and variation in support from primary care trusts. There was a positive side to those topics as well, but there was a serious expression of concern from the royal college, which represents the first-line troops in this area.

Can the Minister assure us that the effectiveness of the provisions in the Statement will be measured? It would be wrong to say that the jury is still out, because the jury is still taking evidence about the effectiveness of the policies outlined. It would be good if we could be assured, for example, that organisations such as the royal college will be consulted and that the information coming back from its network of GPs will help to inform the modification of government policy in the weeks and months to come.

My Lords, I was aware that my honourable friend Gillian Merron was giving evidence to the committee, and therefore worked out that several Members of your Lordships' House might be better informed than I am, having just had a refresher course, as it were.

The point about information is well made. In preparing myself for the Statement, I went online and tested it by Googling and other ways. I decided that I had swine flu and filled in the questionnaire to see what happened at the end. I did not use the phone, because I thought that that would be improper, but I thought that it would be useful to see how those things work. I must say that I found them both easy and accessible. I know that not everybody has access to the internet and would know how to do that, which is why the telephone line and the telephone number that went out to every household are so important.

I take the noble Lord’s point and am absolutely sure that the royal colleges will be fully involved in both consultation and evaluation as we move forward. Plans are being finalised at the moment at both national and local level to communicate to GPs and service users about what will be expected of them when the service is introduced. The exact nature of those messages will be dependent on operational decisions about how the service will be delivered, but they are likely to include national media briefing, advertising and direct marketing. Communications to GPs will be through existing Department of Health channels. That will mean, for example, that in hotspots, where we know there is a great deal of pressure, the distribution of antivirals might not be through local pharmacies; it might be through a community centre. It might be done in a way that removes pressure from the existing health services. On the other hand, in a place where that is not the case, it will be done through the usual GP and pharmacy services.

My Lords, I thank my noble friend the Minister for giving this report as it affects England, but as I live in Wales, will she say what consultations there will be with the Health Ministers in the devolved nations to ensure that there is a continuous, concerted campaign throughout the whole of the UK? Will she also say how the publicity will be handled about the website, the telephone line, and other means of communication, to ensure that everybody is informed and knows exactly where to go?

My Lords, as I said in the Statement, we are working very closely with the devolved Administrations. The arrangements for the National Pandemic Flu Service in each devolved Administration are still being finalised, and are, of course, the object of consultation and agreement as we move forward. This is not something that can possibly be imposed on anybody: it has to be done through co-operation. While it is the case in England that we are taking the precautionary approach as outlined in the Statement, at present in Scotland and Wales they are more likely to confine their antiviral treatments to high-risk groups. But as we discussed already, scientific opinion is very balanced on that issue.

I think my noble friend is asking me, “What do I do if I wake up and think I might have swine flu?” The answer is, that you check your symptoms if you are online, with or, or you phone the flu line. If you are still concerned, you should phone your local GP, who will be able to provide a clinical diagnosis over the phone. If swine flu is confirmed, they would give you a voucher number which you should give to your flu friend. A flu friend is, obviously, a neighbour or relation or somebody near you who could collect those antivirals from a collection point.

As the number of cases rise, we will need to move to a different system, where cases are diagnosed and dealt with by the National Pandemic Flu Service, to take the pressure off GPs. For those people who are isolated or vulnerable, the job of GPs and the National Pandemic Flu Service, when it kicks in, will be to deliver antivirals to people’s homes.

My Lords, like the noble Lord, Lord Sutherland of Houndwood, I have also had the privilege of sitting on the Select Committee upstairs, and we got a lot of useful evidence this morning from the colleague of the noble Baroness, the Minister of State for Public Health. I think there is still some confusion as to how we are going to move from what the noble Baroness described as the interim arrangements for the distribution of antivirals, to the full-blooded national flu line service, which will bypass the GPs and the existing channels and give the patient, diagnosed over the telephone, a number with which they can collect their antivirals from a collection point. I would be grateful to know whether there will be a specific decision on when we move from the interim arrangements to the final arrangements. Will that be generally across the country or will that happen region by region, as appears appropriate?

I remain very confused about the Government’s policy on this. Like my noble friend, I regret that the full-blooded flu line was not up and running by the end of May, as had originally been promised. We now are not going to have it until the autumn. Therefore, it seems to me that the transition from the interim to the final scheme is a very important stage, and I wonder if the Minister could tell us a bit more about that.

My Lords, the noble Lord is exactly right. That is why we are we are clearly calling this an interim phase. That means that the Health Protection Agency is stepping back from front-line response, and primary care is taking a lead in diagnosing and distributing antivirals. We are ending contact-tracing and prophylaxis in all areas, and will now be identifying by clinical diagnosis or from the pandemic flu service. People who are diagnosed with swine flu will be offered antivirals. We are preparing the National Pandemic Flu Service for launch within the next couple of weeks, and my understanding is that it will happen across the UK—although if that is wrong, I will write to the noble Lord and the House about that. That will provide people with alternative routes to access antiviral treatment, and will relieve pressure on primary care. The noble Lord raises exactly the key point: this has to backed by a full communications strategy, aimed both at the health service and the general public, to explain why things have changed and what this means for people. That is a major part of this work.

We are finalising the plans for the public communications on the move to the treatment-only approach. There is some potential for regional variation in the initial approach, and it will partly depend on the amount of pressure that is brought to bear on the local health service in that area. So in areas like parts of London, where there are very large numbers and large demand, the collection of antivirals will be provided by other means. The strategic health authorities are already testing the PCTs’ ability to do that and the operational arrangements to do that. We also recognise that there has to be a clear rationale behind who will or will not get antivirals, and that has to be communicated clearly in our national messaging. The noble Lord is quite right.

My Lords, I, too, thank the Minister both for the Statement and for her response to the questions. I also thank those in the NHS and outside who have done so much already to respond to the threat of a pandemic.

I want to concentrate on asking her about community preparation and the responsibility of the general public in this whole situation. I was pleased about the very brief mention in the Statement of flu friend networks, and then about her more positive comments made since then in her answers to questions. It seems that these networks are going to be crucial in getting to people whom other people will not get to.

I was also very pleased that the Minister affirmed that she recognised that there are many people without access to the internet. Indeed, there are those who have no access to phones. One of the most important things in this situation is to do all that we can to ensure contact with those who are the most deprived in our communities and who may well fall through welfare gaps. Churches and faith organisations have a particular responsibility, in that they are among those who may have contact with those who do not fit in with the way in which our society normally operates. What are the Minister’s reflections on the need to get to those who will not be found by many of the methods about which she has spoken so well in the Statement and in her previous answers?

My Lords, the right reverend Prelate is quite correct to point to the importance of community organisations and their resilience to support people during this outbreak.

In addition to publishing extensive guidance for social care providers, people will be encouraged to build up networks of flu friends from among their family, friends and neighbours who may be willing to support them should they become ill and need not only someone to collect their antiviral medication from the nearest collection point and deliver it back to them but other support: namely, food shopping and getting in basic supplies. Everyone may be vulnerable during a widespread outbreak, although people with pre-existing conditions or a lifestyle that leads to their being vulnerable may be in much worse circumstances. That is why churches and third-sector organisations have a key role to play in identifying needs and supporting people, particularly those who are socially isolated.

Third-sector groups, charities and churches could be flu friends to vulnerable and hard-to-reach people and contact them through their local strategic co-ordination group. Many of them are already involved in their local resilience planning, so I expect that many of them are already gearing up to help with this. It is very important that they do so. We recognise that they have an important role to play.

My Lords, I, too, join my noble friend in thanking all those in the NHS and the Health Protection Agency who have helped. The way in which the WHO has maintained vigilance and has been able to call each stage before the pandemic has also been remarkable. I found that very reassuring compared with the reaction to the financial crisis, in which economists have said different things and not all people agree; some people have protectionist views about what to do. At least here we are operating together as a global community and helping each other. That ought to be mentioned and noted.

I have always felt that the term “swine flu” is unfortunate, but no one has taken H1N1 and made it into a nice little name. I call it “Hen-one flu”. If that is helpful, I give it free to the Government. I know it sounds a bit like “Henman”, which is unfortunate, but I think “Hen-one” would be better.

I have one question. I may have got it wrong, but did my noble friend say that the number of people who are reported as having swine flu will cease to be made public at some stage? That would be very unfortunate, because we really must have total transparency, even if the situation becomes very serious.

My Lords, I reassure my noble friend that I said that the daily reporting of HPA figures will not continue because we are no longer testing for this. That does not mean that the surveillance systems that we have in place will not periodically produce figures on the progress of the disease and what we are doing about it.

I absolutely agree with my noble friend about the role of the WHO and the importance of us continuing to work very closely with it and support it. The UK has been in the lead in supporting the WHO in its work to ensure that we support those countries that need it, that we do not duplicate each other’s efforts and that we ensure that information flows across the world that will help us to take the right decisions for our own country, for the rest of the world, and indeed for people who, as the noble Baroness, Lady Barker, reminded us—I include my own family in this—travel the world all the time.

Criminal Justice and Immigration Act 2008 (Violent Offender Orders) (Notification Requirements) Regulations 2009

Motion to Approve

Moved By

That the draft regulations laid before the House on 9 June be approved.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments.

My Lords, under Part 7 of the Criminal Justice and Immigration Act 2008, violent offender orders will come into force on 3 August 2009. These are civil preventive orders that are designed to protect the public from the most dangerous violent offenders: those offenders who continue to pose a high risk of serious harm to the public at the end of their licence or term of imprisonment.

On application from the police, a magistrates’ court may impose a violent offender order containing prohibitions and restrictions on an individual. These restrictions may prevent the individual from going to any specified premises or place, attending any specified event or having any contact with a specified individual. The restrictions can prohibit: residence at a particular address—for example, in the vicinity of a previous victim or known criminal associates; contact with a particular individual—for example, a previous partner who has been a victim of domestic abuse; or attendance at certain events—for example, extremist rallies where the offender has a history of violence. Additionally, a person subject to a violent offender order will have to comply with the notification requirements of the order. An offender will need to inform the police annually of basic details such as his or her name and any aliases used, date of birth, home address and any other address at which he or she regularly stays.

The breaching of a violent offender order or its notification requirements is a criminal offence that is punishable by up to five years’ imprisonment. We are also strengthening the notification requirements for offenders who are subject to a violent offender order who intend to travel overseas or who identify themselves to the police as having no sole or main residence in the UK.

The police currently have a limited ability to monitor these offenders. It could clearly pose a public protection risk if police officers could not track the location of these individuals because they may be out of the country or have no sole or main UK residence. We want to close down the possibility that those subject to a violent offender order could exploit the notification requirements deliberately to mislead or exacerbate the police management of their risk.

The proposed amendment to Section 110(5) therefore makes it a requirement for a person subject to the violent offender order notification requirements who has no sole or main residence in the UK to provide his notification weekly rather than annually. More frequent reporting will allow better monitoring of their location and will help to close the loop for individuals who may claim to be homeless to evade the police.

The proposed amendment to Section 111(1) makes it a requirement for a person subject to a violent offender order and who intends to travel outside the United Kingdom to notify the police of their plan to leave the UK, the method of their travel, the countries they intend to visit and when they plan to return. This will ensure that, should it be necessary, the police can liaise with the authorities in the destination country as appropriate. Importantly, the offender will also be required to notify the police of all their personal details again on their return, which will ensure the consistency of data.

I commend to your Lordships this secondary legislation, which is designed further to minimise the risk to the public from violent offenders.

My Lords, I thank the Minister for introducing the regulations, which are not very contentious but give rise to a couple of questions that will probably be relevant to the next regulations, too.

As I understand it, people who are of no fixed abode or who have no address are one category of people who will have to give notification every week of their current whereabouts. That is presumably if they intend to travel at some stage. I do not quite understand that. Are they going to have to give information about their whereabouts weekly to the police whether or not they are going to travel? That was not quite clear in the Minister’s statement.

Arising from that, who is going to keep track of this? One of the conditions in court that one can put on people who are on bail is that they should report to the police on a regular basis. However, the police do not always know whether they have reported or not, and it is not a very reliable handcuff, as it were. I just want to be sure where that information is going, who is going to deal with it and who is going to be running around keeping track of it if the information is not given.

Secondly, why three days’ travel? You can leave the country for one day or 30 days or whatever. I do not understand why this is limited to kick in for somebody who wants to go away for three days and over. You can say you are going away for any length of time. My own view is that it would be better if it kicked in at any time they wanted to go abroad for any length of time. That would make this a much tighter system.

Is the assumption that the intention of these people is to return? Or is there an assumption that they may intend to come back but it does not matter if they do not come back because the information will still be passed on? I ask that only because under the heading, “Additional information to be disclosed”, it says firmly:

“That the information is—

(d) where the offender proposes to return to the United Kingdom on a particular date, that date; and

(e) where the offender proposes to return to the United Kingdom at a particular point of arrival”.

They may never propose to come back at all so what is the lock on that?

One bit of information does not seem to be there. They are asked to give their national insurance number but there is no mention of passports. Presumably at the moment you still cannot leave the country or get back in without some indication of identity or a passport. I would have thought that one of the most valuable bits of information for the police to have would be the passport number, but that is not mentioned. I have no objection to the regulations but I think it might be helpful if we could have an explanation.

My Lords, we debated at length violent offender orders when the matter came before Parliament in the Criminal Justice and Immigration Bill and we made it quite clear that we oppose the whole concept of civil orders made under civil procedures for evidence and giving power to the magistrates to impose conditions covering a wide variety of circumstances which could impinge very considerably on the life of the individual who is made subject to that order. It must be borne in mind that that person will, by definition, have served his period of imprisonment and will have served also the period that may be necessary for supervision after that period of imprisonment has expired. When we made these objections, they were fully supported by the Joint Committee on Human Rights, by the noble Lord, Lord Kingsland, on behalf of the Conservative Party, and by noble Lords around the House. Nothing that I say in relation to these regulations should be taken as in any way diminishing our opposition to regulations of this sort.

It is not surprising that these regulations have not been brought into force yet. However, before they are brought into force, the legislation is being altered because the legislation did not, for some reason that perhaps the Minister can explain, stipulate how frequently a person must report if he does not have a home address, as defined in Section 108, which is his sole or main residence in the United Kingdom and he has to give,

“the address or location of a place in the United Kingdom where he can regularly be found, or if there is more than one such place, such one of them as the offender selects”.

The Act and the particular matter that we are concerned about today in Section 110(5) says that the applicable period for a notification and for registering is,

“in any case where subsection (6) applies, such period as may be prescribed by regulations made by the Secretary of State”.

We did not know when the Bill was passed how often you would have to report. Suddenly, just before the regulations are brought into effect, we are told in one sentence in paragraph 11 of the regulations that someone has to report every week. What has happened? Why could the Government not make up their mind when the Bill went through as to what the appropriate period was for the homeless person or the person without any particularly fixed abode to have to report to the police? Why now, before the regulations are brought into effect, is it stipulated to be one week?

The rest of the regulations deal with very ordinary administrative matters that I do not propose to comment on, but changing the legislation so as to reduce the period to one week is something for which I would request an explanation from the Minister.

My Lords, I thank noble Lords for their contributions and support, with some questions. I recognise the principled position of the noble Lord, Lord Thomas of Gresford, and his party in respect of these orders. A number of points were raised which I will seek to address. The noble Baroness, Lady Hanham, pointed out that there have been, on other occasions, perhaps not the best of monitoring systems. For violent offender orders, it is intended that the information will be provided by the police and the police will undertake the monitoring of violent offenders. It is an annual monitoring in terms of the information required of someone with a static home, if I can put it that way. For homeless people, I do not think we have changed the legislation. As we said we would do, we have provided in secondary legislation, after consultation with the police and others, that a weekly notification is an appropriate monitoring period for people who are peripatetic or homeless. If people are moving around, they can no doubt inform the police where they will be in a week’s time and report to a police station in that location. If they are static for any period of time, it should not be too onerous an obligation to pop into the police station and say, “I am still here”.

Why three days? Much of what the regulations seek to do in terms of notification for those travelling abroad—for homeless people it is automatic and applies whether they are travelling or not—is based on best practice from the regimes that currently exist for sexual offenders, who we monitor when they go overseas. Three days, after consultation, was chosen to be the most appropriate period. That has proved successful for another group of people monitored and hopefully will prove successful in this case. The noble Baroness raised the question of passport numbers, which are currently not required. However, we will keep that under review and, if thought necessary, it could be introduced by secondary legislation at a future date.

The legislation enables the making of regulations to require more frequent reporting of a person of no fixed address. Thus, flexibility was always envisaged. It is preferable to set this at a period which is not too onerous on the individual concerned and yet gives the police the required monitoring information that they need. I hope I have answered the questions of the noble Baroness and the noble Lord. I commend the regulations to the House.

Motion agreed.

Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009

Motion to Approve

Moved By

That the draft regulations laid before the House on 23 June be approved.

Relevant document: 19th Report from the Joint Committee on Statutory Instruments.

My Lords, I beg to move that the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009, which were laid in draft before this House on 23 June, be approved. Under Part 4 of the Counter-Terrorism Act 2008, certain convicted terrorists are required to comply with a notification scheme. This includes persons aged 16 or over who have been convicted in the United Kingdom of specified terrorism offences or offences with a terrorist connection and sentenced to 12 months’ or more imprisonment or detention, and persons convicted of similar offences overseas who are made subject to a notification order when they come to the UK. The majority of the notification requirements are set out in the Counter-Terrorism Act 2008, but Section 52 allows the Secretary of State to make regulations requiring a person who is subject to the notification requirements to notify details of travel outside the United Kingdom.

Public safety is paramount and it is the responsibility of the Government and the security and law enforcement agencies to do everything possible to protect our citizens from the threats posed by terrorism. The notification requirements are an important part of our preventive measures and, as part of that, I believe that the people subject to those requirements should be obliged to notify details of their intended foreign travel plans to the police.

The information required by these regulations will mean that convicted terrorists cannot get around the notification requirements by claiming that they were overseas. It will also enable the police to share appropriate information with overseas authorities or to make a decision on whether to apply to the court for a foreign travel restriction order to stop the person travelling overseas or to particular countries.

In essence, these regulations impose notification requirements for convicted terrorists in relation to foreign travel which are very similar to those that already exist in respect of sex offenders. They require the person who is intending to travel abroad for three days or more, which we discussed on the previous order, to notify the police before they leave the United Kingdom of their intended date of departure, the country they will be travelling to, their point of arrival in that country and, where they hold the information, the points of arrival in any other country they are travelling to, the carriers they intend to use, the place they intend staying on their first night abroad and the date and place of their intended return to the UK. On return, the person will also be obliged to notify the police of the date and place they re-entered the UK, if they have not notified these details already.

The information required by these regulations will supplement the other information obligatory under Part 4 of the Counter-Terrorism Act 2008 in helping the police to manage the risks posed by convicted terrorists once they have been released from custody or detention. The information will, for example, enable the police to know if a convicted terrorist is intending to travel to a country where terrorist training is available. However, I should like to make it clear that, while individuals will have to disclose their travel information, the requirements will not stop the person doing anything. The requirements are not intended as a punishment and the foreign travel notification requirements do not prevent an individual from travelling overseas, nor is notification onerous on the individual. Its purpose is to provide information about the whereabouts of individuals who have been convicted for terrorist crimes that will help the police in managing the risks that they may pose to public safety.

Due to the serious consequences of a terrorist attack, the police and security service need to be given all proportionate tools to help them become and remain aware of any potential threat or compromise to our safety. Critically, we know that many countries are able to facilitate terrorism and, due to the complexity and increasing international nature of terrorist plots, it is vital to be made aware whether convicted terrorists are to travel to a country where they could prove a threat to public safety.

I believe that these measures are justified and will help in the monitoring of potentially dangerous individuals, and the security services have recently stated that they believe these regulations will be of benefit to counterterrorist policy. It is vital to strike the balance between protecting the rights of the individual subject to the requirements and mitigating any potential threat, thus ensuring the safety of the community at large. I hope that this House agrees that these draft regulations achieve this and I commend them to the House.

My Lords, I thank the Minister for repeating that order. As far as I am concerned, the questions arising from this order arose on the previous order, so I have nothing more to ask.

My Lords, the Minister has said that these people are not being punished. Surely, whether they are being punished or not, the order rightly makes it clear that they are highly undesirable people in many countries. The only countries which probably would welcome them would be those countries which want to train them further in terrorist activity. Therefore, this seems to be a necessary but very longwinded and effuse way of making that point in the order.

My Lords, my only question is why is there a maximum five years’ imprisonment imposed for failing to do any of those things? For example, if a person comes back into this country and fails within three days to notify the police, he is subject to a potential sentence of imprisonment of up to five years. Is that the same for sex offenders when they travel abroad or is this just a figure that has been plucked from the air by the Government?

My Lords, I thank noble Lords for their contributions. On the points made by the noble Baroness, Lady Oppenheim-Barnes, the truth is that we are responsible only for our citizens who live the country. They will be subject to the immigration status and visa requirements of any country to which they want to go. They will be a matter for the sovereign country that they are in. In that sense, it fits in, but I do not think that it is a longwinded way of achieving that. We want not to punish individuals who may have turned their back on any form of terrorism, but to ensure that we have the information to enable us to monitor and to protect our citizens.

The noble Lord, Lord Thomas of Gresford, asked about the penalty. The penalty for breach of these regulations is up to five years, as is the case in the previous order and in the regulations for sex offenders.

Motion agreed.

Sitting suspended.

Apprenticeships, Skills, Children and Learning Bill

Committee (4th Day) (Continued)

Amendment 95

Moved by

95: Clause 40, page 23, line 38, at end insert—

“( ) ensure that all sixth form provision offers, as a minimum, A level courses in English, mathematics, physics, chemistry, biology, history, geography, and at least two modern foreign languages”

Amendment 95 would ensure a bare minimum of standards of education in sixth forms. It would add a paragraph (f) to new Section 15ZA in Clause 40 to impose a duty on local education authorities to ensure that each sixth form must offer A-level courses at least in English, mathematics, the three sciences, history, geography and at least two modern languages. The amendment may appear somewhat prescriptive. Nevertheless, it encapsulates a real concern that many important academic subjects are becoming the exclusive preserve of the independent sector. We think that it is essential that this range of subjects should as a minimum remain open to all those who wish to study them. Surely it is wrong that there should be a disparity in opportunities for choice between the independent and state sectors.

My honourable friend in another place, Nick Gibb, quoted the figures from 2006 and it would be helpful to reiterate them. In 2006-07, 145 schools with a sixth form did not enter any students for A-level history; 96 did not enter any for A-level maths; 115 did not enter any for A-level biology; 187 did not offer A-level chemistry; 247 entered no one for A-level physics; and 264 entered no one for A-level geography. It simply is not feasible that no one living in the catchment areas for these schools wanted to study the subjects. Does the Minister not share our concern that there should not be subjects that are allowed to become dominated by the independent sector? Does she not agree that it should be a top priority to ensure that every student has the practical opportunity to study the A-level course that most suits their needs? Does she accept that this is not what is happening at the moment?

It should be noted that the subjects listed are not exceptional or unusual. The list is not highly specialised or arcane. These are basic subjects that we might reasonably expect would be provided in any sixth form. The Minister will doubtless tell me that partnerships and federations exist that allow a pupil to travel from one school to another in search of their next lesson, but I cannot accept—at least with regard to these subjects, which should be available to all students as a basic minimum—that this is a useful or productive way for them to spend their time. In another place, the Minister replied:

“I understand the calls for an A-level entitlement. That is something we have agreed to review in 2013”.—[Official Report, Commons, Apprenticeships, Skills, Children and Learning Bill Committee, 17/3/09; col. 318.]

Another question might be: why wait? If the Government understand these calls, why wait until 2013 to conduct a review? I beg to move.

I am afraid that I cannot support the amendment. While I, too, deplore the discrepancy between the independent sector and state schools—any discrepancy of opportunity is of course to be deplored—I do not think that this amendment is the way to solve the problems that the noble Lord, Lord De Mauley, has outlined. We must bear in mind the fact that sixth forms these days are about a great deal more than A-levels. Provision for the 16 to 18 age group is much more diverse than just sixth forms. If a young person wanted to study Latin, psychology or philosophy, for example, that would not be provided by the minimum entitlement laid down in the Conservative amendment. There are probably plenty of places where the young person could do that. Many young people of that age now do their spread of subjects in more than one setting. Although we have a problem with discrepancy of opportunity in some areas, this amendment is not the way to tackle the issue. That will be done by making sure that adequate resources are provided and that high-quality teaching is available to all young people, not by providing a minimum entitlement of this prescriptive nature.

I very much support the spirit of my noble friend’s amendment, but not the wording. It is important that young people who want to study these basic subjects are given the opportunity to do so and it is not satisfactory that there are instances at the moment where that is not the case. However, I hope—perhaps the Minister will enlighten me—that the application of subsection (1) will cover this. If a local education authority,

“must secure that enough suitable education and training is provided to meet the reasonable needs of persons in their area”,

and one such need is to study physics at A-level, I presume that we are now placing that duty on local education authorities. If that is the case, I would like to know—I did not get an answer last time I asked—how that duty is to be enforced.

I support the amendment. In recent years, the details of our curriculum have been upside down. Very young children have too much laid down in detail about their education but, as you go further up the ladder, there is too little. It is now widely accepted that dropping the requirement to learn modern languages at the age of 14 or 15 was a mistake. Therefore, I support the amendment, in part because it mentions two modern foreign languages. It would bring back some credibility and rigour to what must be considered for teenagers towards the end of their full-time education.

I am delighted to be able to respond and I hope to offer some reassurance, in particular to the noble Baroness, Lady Deech, over her concerns about languages. I agree with the noble Baroness, Lady Walmsley, that sixth forms are about a lot more than A-levels. The amendment moved by the noble Lord, Lord De Mauley, puts forward the interesting idea of creating this requirement, but the noble Lord, Lord Lucas, is right in his interpretation of the Bill. We consider that the duty of local authorities to provide suitable education would include access to this list of A-level subjects, which come in the top 10 favourite subjects that young people in this age group opt for.

We agree on the importance of the A-level subjects set out in Amendment 95 being on offer to all young people, but making sure that these subjects are on offer to all young people is not the same as making sure that they are on offer in every single institution, as the noble Lord, Lord De Mauley, expected me to say. That has never been the case, even before the increases in collaborative delivery. The more specific nature of the study that takes place post-16 has always led to pupils choosing to move between institutions. There has to be a balance. He makes the good point about not wanting to see young people engaged in excessive travel and, of course, local authorities have to take that into account.

Amendment 95 would require all sixth forms to offer this selection of subjects. While this will be appropriate for many learners, we think that it is right that decisions about what courses are on offer in what institutions should be determined at a local level. The sixth forms that do not offer all these subjects may not be designated or designed to do so. They may play a different role, to which the noble Baroness, Lady Walmsley, pointed, in providing diversity of what is available locally and they may do it very well.

It is more important to look at whether young people are taking A-levels. The evidence from last summer shows that these subjects are doing very well. The five subjects that saw the biggest increase in entries included maths, English, history and biology. Between them, these four subjects saw increases of more than 11,000 entries—more than half the overall increase in A-level entries last year. Moreover, numbers taking these subjects in maintained schools and colleges continue to rise. I offer that as reassurance to noble Lords.

We are not complacent at all about this. We recognise that there is a great deal of work to do. We started recording the type of exam centre in 2005—a very recent event—so we now have the data that allow us to have this debate. Since then, of the subjects listed in the amendment, only geography has seen a very small reduction in entries from maintained schools and colleges, but I reassure noble Lords that it remains in the list of top 10 subjects studied at A-level.

Following the 2007 review by the late Lord Dearing, we put in place a range of measures to boost language learning in schools because we, like noble Lords, feel that it is an important area in which we need to do better. This included a £6 million communications campaign over three years to promote the importance of language learning to pupils, parents and the school workforce and reforming the secondary curriculum to make it more relevant and engaging for pupils. We expect that these measures will increase the likelihood that pupils will increase their take-up of GCSE languages, which will then lead, we hope, to a better take-up of language A-levels. We can take heart at this approach because it is the one that we have taken in science and mathematics, where we have seen an impact—increasing numbers of children and young people are opting, importantly, for mathematics. I hope that, with the reassurances that I have given, the noble Lord will consider withdrawing his amendment.

Before my noble friend sits down, I wonder whether she could elucidate her comments on mathematics. It is my understanding that there is a severe deficiency in the provision of teaching in double-subject maths in our schools at the moment. Many talented young mathematicians are forced to take single-subject mathematics, which compromises their future university careers both in mathematics and in physics. Does her reference to improved access to and take-up in mathematics A-level cover double-subject maths or only single-subject maths?

What I have here is the number of entries in subjects from maintained schools and FE colleges; the number of entries for 2008 in mathematics is 45,084. I am assuming—I am looking behind the noble Lord in the hope that I shall get some indication—that that figure includes all maths A-levels. Perhaps not. I am afraid that I will have to come back to the noble Lord on that figure.

On the wider point about attracting maths specialists into teaching, we are extremely aware of the importance of doing that and we have been investing through our STEM programme in improving the offer to maths graduates to come into teaching and in attracting maths graduates from other professions, such as the finance sector, to consider coming into maths teaching. Having expert teachers who are qualified in the subject is an important factor in exciting and encouraging young people to maintain an interest, particularly in mathematics.

I have some inspiration coming my way. Maths entries have increased from 35,000 to 45,000—I presume that that is pure maths—and entries to further maths have increased from 3,000 to nearly 6,000. That is between 2005 and 2008.

I just intervene to tell the Minister—it is maths and further maths about which I assume the noble Lord is concerned—that there has been a significant increase in the number taking further maths over the last couple of years, partly as a result of the Further Mathematics Network initiative. It puts young people at state schools that have not had the facility to teach further maths in touch with people who have that capability. It is partly online but it also provides young people with face-to-face tuition through extra classes, twilight classes and weekend tuition. It is an example that has been extremely effective and could well be copied in one or two other areas. There is a question as to why, given that we have seen this increase in mathematics at A-level, the Government are now consulting on changing the A-level maths curriculum in 2011. The general feeling—and I was talking only last night to somebody representing the Mathematical Association—is that the formula is now good. People are flocking back to maths after the disaster of Curriculum 2000. If it ain’t broke—and it is working—why fix it?

My noble friend’s amendment does not deal with the general, it deals with the particular. The defects occur when individual areas are not offering the full range of provision, and as I said in my brief comment, I thought that Clause 40(1) was what was going to deal with that. If the noble Baroness can suppose that a local authority determines that in a particular patch of its area there are, say, four students who wish to study further maths at A-level who are unable to do so because their local school does not offer it, what powers are we then giving the local authority? Is the local authority going to have the power to direct the school to start a course in further mathematics? Is the local authority going to have the power to subsidise the transport of these students to somewhere that does further mathematics? Is the local authority going to have the power to subsidise the school to run what, at four pupils, will be a loss-making course?

Once it knows that there is a required provision, a local authority is given an instruction that it must secure it. What powers is the local authority being given to enable it to secure the provision of, say, four places a year to study further mathematics for a particular group of students?

We have had detailed discussions about commissioning in local authorities. We have the 16 to 19 partnerships, which will set out their strategic plans. We have the YPLA and local authorities as part of the sub-regional groups. I believe that there will be a system in place to ensure that where there is demand for certain subjects, the system will be capable of offering them. One of the most important levers is in the provision of funding and ensuring that there is capacity. It is extremely important that local authorities ensure that they can offer what young people are looking for.

I agree with that, but it still does not answer the question. What powers are we giving local authorities to do this? A school may well recognise that there is a demand for four places to study further maths, but it also realises that if it offers such a course, it may well make a loss on it because eight students is about the break-even number for an A-level group. A school might reasonably decide of its own volition that it was not capable of offering the further maths education that the local authority has identified as being needed. Under those circumstances, can the local authority compel the school to offer it? Can it subsidise the school by offering it twice the ordinary rate for students who study further maths? What powers are being given to the local authority to ensure that it is able to perform the duty being put on it in new Section 15ZA(1)?

I am struggling to convince the noble Lord. The way I see this is that the local authority has the power to come to an agreement with an institution to provide the capacity to deliver teaching in subjects it sees as important. I am not sure that I can see the problem, but I am happy to write a note for the noble Lord and copy it to other Members of the Committee if we are not being clear enough. It will explain exactly which powers in the Bill that would rely on. This is about coming to an agreement within a community, and about gathering from providers intelligence about which courses are likely to be needed. There has to be a dialogue and I see this as a process in which local authorities are in pole position. However, it also has to be about agreement between providers and the local authority.

I do not disagree with anything the noble Baroness has said, but I want to take the point a little further. Let us suppose that a school recognises that it ought to be providing four places to study further maths. The local authority and all the other bodies the noble Baroness mentioned recognise that, but if the school was to provide those four places, in terms of what it would have to pay the teacher and what it would bring in as a proportion of those students’ funding, it would cost perhaps £15,000 to £20,000 a year to run the course. The school might not have that sum in its budget, so it says, “How can the local authority help?” What powers are being given to the local authority to, as it were, subsidise courses or assist pupils by providing transport to somewhere where it is economically viable to run the course? Is power being given to local authorities to enable them to do what everyone agrees they want to see being done?

The noble Lord has answered his own question. The powers set out in new Section 15ZA are required in order that local authorities can come to agreements with a group of schools or colleges about how a particular demand might be met and to ensure the capacity is funded. I have a problem in understanding what I am not explaining properly.

I thank all noble Lords for their contributions to this short debate, in particular the noble Baroness, Lady Deech, and I share her concern about foreign languages. My noble friend Lord Lucas said that he supports the spirit of the amendment, and for that at least I am grateful, as well as for his subsequent, more detailed probing. I thank also the noble Lord, Lord Eatwell, whose question was very important. I hear what the noble Baroness, Lady Walmsley, said, and I am not entirely surprised though a little disappointed. I thank the Minister for her response, and we too are delighted to see her back on her feet. I repeat to her and to the noble Baroness, Lady Walmsley, that what we are really concerned about is the idea of bussing people around just to ensure they receive tuition in these basic subjects.

As I said when I moved the amendment, the Minister in another place replied that, unlike the noble Baroness, he understood the calls for an A-level entitlement, and that was why he agreed to a review in 2013, which is four years away. I have asked why it is necessary to wait until 2013 to conduct the review. Would the noble Baroness like to answer that question?

I shall have a go. A lot is happening with the rollout of diplomas as well as with the development of the secondary school curriculum and Ofqual. I think that it would be a mistake to bring forward a review of A-levels sooner than that, but nevertheless it is helpful to have a review and I do not have an issue with that at all. We have made a public commitment to conduct such a review. However, I think it would be helpful if we gave the diploma time to roll out before such a review takes place in order to see the interplay between the various different qualifications in an age group.

I am grateful to the Minister and to all other noble Lords who have participated in the debate. For today, however, perhaps I may say that I shall give the matter further thought before we come to the Report stage. In the mean time, I beg leave to withdraw the amendment.

Amendment 95 withdrawn.

Amendment 96

Moved by

96: Clause 40, page 23, line 38, at end insert—

“( ) respect the independence of any further education or sixth form college;( ) recognise that sixth form, specialist and further education colleges should seek to recruit students from outside the area of the local authority;( ) promote the attendance of students at sixth form, specialist and further education colleges outside its area”

I think I understand why the Government want to bring sixth-form colleges and other colleges back under the wing of their local authorities: in order to integrate the provision for 16 to 19 year-olds, and even beyond for those with special needs. Everything should come under one optic and be dealt with an integrated and sensible way.

For the sake of this amendment, I shall take that as a given and say that what I am after is preserving some of the virtues that have been gained over the past decade and a half as a result of liberating sixth-form and further education colleges from local education authorities. Certainly the best of them have become national enterprises. Prisons in Kent are managed by Manchester City College, for instance, while many FE and sixth-form colleges have gained national reputations for what they do. The virtues of Hills Road Sixth Form College in Cambridge are well known, as is Greenhead College in Huddersfield, which attracts students from the south of Manchester, Hull and right up from the far north of Yorkshire and Lancashire. People travel a long way and make great efforts to attend good sixth-form colleges, particularly where they have developed expertise in certain subjects. Where a subject is not particularly mainstream, it is very much to the advantage of students and the educational system that the expertise becomes concentrated. They can then afford to develop long-lasting links with industry, both to inform what they are teaching and to provide the routes by which their graduates go on to obtain employment.

The better of these courses now have 15 years’ worth of graduates in the industries that they supply and an enormous reputation, as I say, in many cases countrywide. I do not want to see that destroyed or jeopardised as a side effect of the virtues that the Government are trying to achieve by bringing these colleges back under local authority control. It would be a great pity to lose what we have won merely in order to gain something else.

That is the burden of my amendment. I hope the Government will enlarge on the technicalities of it so that I can understand better how colleges can continue to assert their independence, innovate and head in the direction that they want to head while being subject to what I read as, as the noble Lord knows, the quite draconian powers under Clause 40 and elsewhere whereby a local authority will have to decide what provision is to be made in its locality and how. I beg to move.

I shall speak to Amendment 103. It is a slightly obscure amendment to probe, to some extent, the same issue. We on these Benches endorse Amendment 96 and the promotion of the independence of the sixth-form college and further education college sector. Given that, we would like to know a little more about the kinds of co-operation that are being developed.

We understand that 43 sub-regional groups have now been agreed to. There is a six-stage process of agreement on the funding procedures and the way it moves forward. In the first stage, the YPLA will develop a national framework, working with local authorities. The second stage is that each local authority will assess supply and demand for 16 to 19 provision within its own area. The third stage is that each local authority will then take this assessment to one of the 43 sub-regional groups of local authorities of which it is a member, and the group will agree the commissioning plans within its sub-region. The fourth stage is that these plans will then have to be agreed at a regional planning group, which will scrutinise the local plans and ensure that they are coherent, can be funded within the regional budget and will deliver the 14 to 19 entitlement. The fifth stage is that the plans will go up to the YPLA, which will check them to ensure that they cohere and are affordable and then fund local authorities appropriately; if the YPLA agrees with them, it will send the funding back down to local authorities. The sixth stage is that the local authorities will then pass the funding on to colleges and other post-16 providers. The YPLA also has powers to act as a backstop authority and to intervene if it thinks there is a significant risk that local authorities have not developed robust commissioning plans.

However, let us assume that they have developed what are seen to be robust commissioning plans. Given that this is supposed to be a demand-led system, can the Minister explain what would happen in instances where the predicted demand for learners agreed all the way up and down the regional and sub-regional groups, when aggregated together at the regional level, fails to match or meet the actual number of young people who turn up at a college or a school? With more players involved than in the current process involving only the single learning and skills councils, what would be the process for reassessing the funding allocation? What would be the role of the YPLA at this point?

I have a further query relating to cross-regional issues. Apparently the Learning and Skills Council issued guidance about the recruitment of non-English domiciled students in Wales, Scotland and Northern Ireland as follows:

“The LSC has reciprocal arrangements with the funding councils for Wales and Scotland for colleges and providers close to the borders. However, it is not expected that colleges and providers in England will recruit entire groups of learners from outside their local area. Such learners should be referred to the possibility of distance-learning or a Ufi programme delivered by their local provider or hub in Wales or Scotland. If the learning programme is not available through this route, permission to enrol the learners must be sought from the provider’s LSC partnership team”.

In January, the Welsh Affairs Select Committee in the other place reported on a cross-border provision of further and higher education and described this LSC funding guidance as unhelpful and inappropriate and urged authorities to see access across borders as something to be encouraged. The Government, in their formal response to the committee, said:

“The guidance issued by the Learning and Skills Council … to further education colleges should not be seen as restrictive or as a deterrent to English colleges responding to the needs of Welsh or Scottish learners. Rather it supports our expectations that individual colleges will focus primarily on their local communities. Where such communities embrace such cross-border travel-to-learn or travel-to-work areas it is appropriate for those colleges to include these factors within their planning and their marketing strategies”.

We would welcome clarification from the Minister as to whether new guidance from the DCSF will be issued to the sub-regional groups of the local authorities near the Welsh and Scottish borders. Will it make clear that they can recruit across the border, or will it try to deter such colleges from doing so? Perhaps the Minister can provide us with such clarification.

Listening to the noble Baroness, Lady Sharp, the Committee has been reminded of the enormous administrative paraphernalia that is going to be created by the Bill. First local authorities will work out local needs assessments, then they will submit to some regional body a regional needs assessment, then this will all be looked at by the Government for a national needs assessment. There is so much planning; Stalinists would welcome this approach to education provision.

That is not how it is done now. For the past 30 years, as a result of my freeing them from local education authority control, FE colleges have had a glorious golden age—no one can deny that. FE technical and vocational training has never had such a fillip as it has had for the past 30 years, and it has had it because the colleges were freed from the dead hand of the local education authorities. They were allowed to do their own thing, and they decided to provide the courses that local people wanted. They did not go and talk regionally and nationally; they knew what they wanted to do, they knew what the local lads and lasses wanted to do, and they provided the courses for them. They were constantly in touch with the market, always adjusting, introducing new courses for tourism, expanding those for medical services for nurses and cutting back on others that were a lot less popular. That was real freedom.

The ultimate solution should be—I have yet to persuade my Front Bench of the value of this argument, but I am working hard on it—that they should return to being free institutions and students should be given vouchers to decide themselves which courses they want to pay for and go to. Let the students decide; that is what choice is about. We are told that the Prime Minister is all about extending choice to ordinary people, but if he really wanted to do that then he would give all qualified youngsters the chance to buy their own education. Is that not freedom? It is not planning.

My noble friend’s amendment is very interesting. He is saying that, now that FE colleges are going to be under local education authority control for a time, they should be allowed to recruit students from wherever they want. That is what they have now, the complete freedom to recruit whomever they want. I know one FE college in London which is at the junction of three London boroughs. It recruits from those boroughs and from well beyond; it recruits into Kent as well. Will the colleges have that freedom? The Minister is nodding. I would like him to say one sentence: that no FE college or sixth-form college will have a catchment area. I am sure that my noble friend would like the same sentence from him. That is the real gain.

The Minister nodded, so I hope that he will use that sentence, which I will repeat: no FE college or sixth-form college will have a catchment area. The Ministers are looking whether that is in their brief; I am sure it is not, but I hope that it will be by the time they come to reply. I hope that they will say that, because it is the essence of freedom and the colleges should have that freedom. Otherwise, local education authorities will restrict them by saying, “We want you to do these courses for our area”, although they might be right next to the boundary of another area that does not want that sort of thing. We should let choice decide this matter. My noble friend’s amendment is important. It goes to the heart of the arrangements in the future and the relationships of FE colleges to local education authorities. If they do not have that freedom, it will be a grave disappointment.

The difficulty is enormous: in order to deliver education up to 18, the Government have brought in the Bill and put the FE colleges back under local education authorities—but at the same time they are slashing their capital expenditure. The Ministers know, because the Government made a Statement last week, that 92 projects have been submitted for sixth-form colleges and FE colleges, all of which were approved by the former council. Of those 92, only 13 have been approved. That is not the way to improve the public services that the Prime Minister is talking about and to improve the opportunities for young people in technical and vocational education; it is holding them back. There is a great debate about whether cuts are going to happen after the next election but, as far as FE and sixth-form colleges are concerned, the cuts have started already—massively so.

The Government slipped through an Answer last Friday, although they did not make a Statement to either House about it—no verbal Statement was made, I assure the Minister—about a major change in reducing the expectations and abilities of FE and sixth-form colleges to provide the services that the Bill wants them to. That is a separate debate, though; the debate here is about catchment areas. I hope that the Minister will utter the sentence that I have encouraged him to say.

I should declare an interest as a former governor of Hills Road College, which has been mentioned as one of the most excellent sixth-form colleges in the country and is constantly at the top of the league tables. I also declare a very different sort of interest: I made my maiden speech in this House welcoming the reforms that gave the further education colleges their freedom from local authorities. Exactly as both my noble friends have emphasised, that has resulted in an extraordinary explosion in both the status and the effectiveness of the further education sector.

The part of Clause 40 that most concerns me and rather gives the negative answer to the question asked by my noble friend Lord Baker about catchment areas is subsection (4)(d) of new Section 15ZA, which says that,

“a local education authority must … take account of education and training whose provision the authority think might reasonably be secured by other persons”.

That is, presumably, because some college 50 miles away is providing something that is considered to be useful. That is the negative power that the Bill gives to a local education authority to tell a further education college what it may not do. Not only is there a list of things that it has the power to tell the FE college and the sixth-form that they must do, there is also a negative power to tell them what they cannot do. I find that extremely worrying.

My noble friend referred to one college—which may be the one that sprang to my mind; namely, Lewisham College in south London—which has been working voluntarily and extremely fruitfully with its neighbouring local authorities to provide 14 to 16 education. It is wonderful example of free co-operation between three local authorities and one absolutely free sixth-form college. That is the sort of thing that I fear would be cut. I see the Minister shaking his head, but of course it would be. Once they have the power, local authorities will begin to restrict things to what is in their own interests, particularly if they are footing the bill. I would very much like to see some absolute assurance from the Minister—which I am sure he will get from his briefing—that while the local authority will fund the colleges, it will not necessarily control them. I am afraid that the whole of Clause 40 is about control and I find that absolutely wrong in view of everything that I have seen happen in the past 20 years.

I go a little further than my noble friend who has just spoken because I do not give much weight to assurances given by the Front Bench of any Government. They only last as long as the Government, and not always as long as that. I want to see the assurance in the Bill. To try to stop one hair being split in resistance to this amendment, I think that it would be a little better if the second line of the second paragraph read, “colleges should seek to recruit students from outside as well as inside the area of the local authority”, and likewise in the next paragraph, in case the Minister says that this is trying to diminish the benefits to a local authority of having an FE college in its area. I agree wholly with my noble friends and wish that I had the eloquence of my noble friend Lord Baker.

I very much support the amendment. The case has been argued extremely well by the noble Lord, Lord Baker, who brings his past knowledge and continuing study of this area to the debate. We are all concerned about control. Certainly, if you look at the work of the Association of Colleges over the years, its standards have been rising considerably, as we have heard. It is interesting to note that it is particularly helping those from the most deprived backgrounds. Something like 68 per cent of those in receipt of education maintenance allowance study at a college; and 13 per cent of the 16 to 18 year-olds are from deprived backgrounds, compared to 7 per cent in maintained schools. There are a number of such figures which really show that the Association of Colleges has increasingly acted as a facilitator of the talents that we all need to see developed to the full in all our children.

One part of me welcomes the fact that local authorities are taking over education. I will come to that later. In prisons, as we all know, maybe the governors had other ideas about what the priorities for young people—and indeed older prisoners who would clearly benefit from further forms of education or apprenticeships—should be. It is the business of control that we are all concerned about. The point about moving from one local education authority to another is absolutely basic, is it not? You have to be able to cross boundaries. Clearly a lot of this is happening now anyhow—for example, if you are in a prison in one area and your home is in another. I have looked hard at the section that noble Lords want to change. I originally read it in a rather more positive way, but the more I looked at it, the more it worried me. Perhaps the Minister could take a further look at it, to see whether it could be made more reassuring. I just have this instinct that the intention is the opposite of what we have all foreseen.

Amendment 96 in the name of my noble friend Lord Lucas is welcome and I support it—indeed, I have put my name to it. I hope the Minister will give it a favourable response. I am assured that, on the first point, he will be able to offer some comfort that further education and sixth-form colleges will remain independent. Assuming that this is forthcoming, it will be good news. And yet—here I share the concern of my noble friend Lord Elton—it does not seem to be very clear in the Bill, hence this amendment. I hope at least that it will be clear in the text of Hansard. It is also vital, however, that we are given some reassurance about the second and third subsections of the amendment.

One of the great benefits of sixth-form and, particularly, further education colleges is that they should be encouraged to specialise and so attract large numbers of students from outside their respective immediate areas, and indeed, outside the remit of their local authorities. The very nature of these colleges depends on being able to offer specialised education which is therefore able to be of a much higher standard. Can the Minister reassure your Lordships that local authorities will continue to accept that students should be allowed—indeed, actively encouraged—to travel to different colleges for specialist courses? I think that most noble Lords in the Chamber would agree that the independence of these colleges has secured a virtuous cycle—the more a college has specialised, the more it has attracted students from distant locations, and as it has started to attract students from far and wide to a particularly good course, the more the college is able to specialise. This must, surely, be allowed to continue.

I was very interested to hear about Amendment 103, in the name of the noble Baroness, Lady Sharp, regarding the workings of sub-regional groupings of local authorities. Like my noble friend Lord Baker, I look forward to the Minister’s response as to how these 41 sub-regional groupings are going to work, how far they have progressed and to what extent he accepts that there will be boundaries between the groupings.

Amendment 96 echoes some of the concerns in a recent article in the Guardian, as well as concerns in the sector generally, that the independence of FE colleges will be eroded by these reforms. I reassure the Committee that this is the last thing we want. It is that very freedom of colleges to innovate and improve, through having strong governing bodies and business models that respond to the needs of learners, that has brought much of the growth and improvement in the further education system. The provisions in this Bill do not affect the independent, incorporated status of these colleges, or their business plans. Colleges will still own their own buildings. They will still own their own land. They will still command their own budgets. They will still make their own decisions about what courses they offer. They will still appoint their own staff.

I listened to the noble Lord, Lord Baker, describing the apparent educational nirvana that exists now; I can reassure him that, in some circumstances, even in the current situation, colleges will continue to be accountable for the substantial sums of public investment we make in them, through the performance-management framework. From next year, local authorities will be commissioning from all providers and will be responsible for performance-managing those that choose to be designated as sixth-form colleges, but this does not amount to control.

Our overriding aim is that all young people participate in some form of education or training and attain the skills, confidence and competence to become economically prosperous citizens. With the raised participation age, we want local authorities to focus on ensuring that every young person has access to a high-quality and engaging learning offer to enable them to participate, irrespective of where the institution they choose to study in is located. In answer to his specific request, I can assure the noble Lord, Lord Baker, that there will not be such a catchment area defined; the funding will follow the learners. That is the situation that currently exists and we do not want to do anything to undermine it.

Yes. I did say so.

Section 15ZA(4), inserted by Clause 40, already sets out that local authorities must act with a view to encouraging diversity in the education and training available to persons and to take account of education and training whose provision might be secured elsewhere. This is the very essence of the amendment tabled by the noble Lord, Lord Lucas.

We will not accept any limitation of learner choice as a result of these changes. It will not be sufficient for a local authority to commission all its provision from one type of institution, even if that were possible. While there are many excellent colleges and school sixth forms in almost every local authority area, it is hard to see that any local authority would be able to meet its duties in new Section 15ZA and fulfil the needs of all its 16-19, or 19-25 year-old, population from commissioning provision just within its boundaries or from one type of provider.

For learners who cross the Scottish or Welsh border, the national commissioning framework, issued by the YPLA, will include guidance in relation to these learners and will be clear that commissioning should focus on the needs of the learner and be based on participation, rather than where learners are resident.

The 43 sub-regional groupings, reflecting young people’s travel-to-learn patterns, will work to ensure local authorities meet the diverse needs of young people in their area and increase opportunities for young people to exercise choice. We believe that the funding should follow the learner. This brings me on to Amendment 103. New Section 15ZB of the Education Act 1996, inserted by Clause 40 of the Bill, requires local authorities to co-operate with each other when securing suitable education and training for young people, and young adults subject to a learning difficulty assessment. This duty underpins the establishment of sub-regional groupings, and beyond. These arrangements will be key to ensuring that commissioning reflects the travel-to-learn patterns of young people. The noble Lords’ amendment would require co-operation arrangements to be agreed with the Secretary of State. The formation of sub-regional groupings is predominantly a local decision, as local authorities are best placed to identify how they can best serve their learners. That said, there has already been a degree of national oversight. The formal governance and operational arrangements of the 43 sub-regional groups were assessed by a national panel drawn from key stakeholders inside and outside government, including the Association of Colleges and the Local Government Association. These sub-regional groupings have come together of their own volition because they see the necessity of so doing. They understand that significant numbers of young people seek their education outside their authorities. Therefore, this process is building on what already happens as it recognises the benefits of that.

We do not anticipate changes in the membership or governance arrangements of the sub-regional groups as it is important to ensure stability in the planning process. However, there may be circumstances when a sub-regional group needs to reassess its membership. The Young People’s Learning Agency, whose primary aim is to support local authorities, will be well placed to assist with any review. This is not to say that the Secretary of State will not have an interest in how local authorities perform their new functions. Where co-operation between local authorities breaks down, to the extent that one or more of the local authorities within a particular sub-regional grouping may not be able to fulfil their duties in new Section 15ZA, we have provided through Clause 65 for the YPLA to intervene to secure the provision of education and training. These are reserve powers which we expect to be used only in extremis, as was the case with the LSC, but before that occurs, Clause 65(4) specifically requires the YPLA to consult the Secretary of State. Any intervention under this provision would have to be in line with its intervention policy statement made under Clause 71, which will have been approved by the Secretary of State.

I shall try to cover the points raised by noble Lords. I say to the noble Lord, Lord Lucas, that local authorities will not determine what provision colleges will make. As regards 14-19 partnerships, the local authority as strategic leader and the providers as the curriculum and professional experts will come together to determine jointly the offer to young people. I think that the noble Baroness, Lady Sharp, asked about the mismatch between plans, funding and actual recruitment. Informed plans will be produced for the commissioning process which takes place by March of each year, although I cannot see the precise date. Recruitment will happen in September. Given that funding follows learner choice, money will flow to the colleges where learners turn up; there might have to be a reconciliation process, but we are clear about that.

I think that I have answered the question about the Scottish and Welsh cross-borders issue. I have found my note on catchment areas; no FE college or sixth form will have a catchment area. I am reliably informed that none will be imposed by the Government, the YPLA or the local authority. It is completely up to the college as an independent institution. I hope that that lays that issue to rest.

The noble Baroness, Lady Perry, felt that new subsection (4)(d) in Clause 40, in relation to other persons, was negative and controlling. We do not see it in that light; it is not a negative power. It is about ensuring that local authorities take account of provisions secured by others—for example, they include: the chief executive of the Skills Funding Agency securing apprenticeships for 16 to 19 year-olds; private training providers; and young people travelling across local authority boundaries. Young people need to have choice—an argument which I know the noble Baroness endorses. This is not about control, but accountability and choice.

I believe that I have answered most of the points raised by noble Lords. In conclusion, I reiterate our belief that, first, by ensuring that funding follows the learner and, secondly, by ensuring that there is a collaborative process, the independence of colleges will be sustained. It is not just a local authority which determines of its own volition; it will have to do this in consultation with colleges. It is important to offer young people choice, the ability to cross boundaries—described by the noble Lord, Lord Baker, in relation to London—or even to travel more widely to national specialist colleges, if they wish to attend them. We are firmly committed to that choice and to sustaining the independence of colleges in an environment where we have devolved funding to local authorities.

I hope that on the basis of those assurances noble Lords will be prepared to withdraw or not move their amendments.

I am very grateful, as I am sure is the Committee, to the noble Lord for that full reply. However, I became increasingly worried as I listened to it, because all the language being used is about the local authority’s duty and the local authority as a commissioner. The person who commissions provision is in charge of what provision is commissioned. The noble Lord’s answer to my point was that the local authority might decide that because there was a private provider it would not commission that provision from the further education college. Some further education colleges and sixth form colleges have taken on the private sector and have provided brilliantly, at a lower cost and far better, the kind of course or training which a private provider in the locality was already offering. Why are we shifting away from the freedom of those colleges?

We are not taking that away. I merely pointed out other circumstances and that we could not focus on only one area, as though there were no other providers.

Let me try to be clear about the autonomous providers. Schools with sixth forms, FE colleges, academies and so on each determine their capacity. After all, as the noble Baroness pointed out, successful colleges have already attracted their students. The funding will remain with the colleges if they have done that. It will not be taken away; it is quite clear that the colleges have already established their needs and there is no way that those will be overridden.

Similarly, because of their autonomy they will determine their capacity, ethos and curriculum offer. I do not want to reiterate that as the main concern of the noble Baroness was their ability to control and to build on an established success. We are absolutely as one with her. We are not taking away any of that. Their commissioning plans can only be built on what is already happening in any particular local authority.

Can I get clarification from the Minister? He said that the funding will follow the learner, and, equally, we will see commissioning in advance. As he rightly said, every March a certain number of places will be commissioned at a further education or sixth form college for the following September. If the college recruits well above the numbers that are commissioned, how far is there then reassessment? Will the college be penalised if it recruits more than the commissioned numbers?

There is an overall problem. What if a sub-regional grouping is far too optimistic in its planning for the numbers of young people who will come forward for places and they do not come forward? Presumably it will get less money from the YPLA when things are divvied out again and will have to reallocate that among its colleges.

In part, the noble Baroness has answered her own question. If we are talking about building on success—that it is what we want to encourage—then inevitably those that are not so successful are going to have a lesser budget. Any planning process relies on the accuracy of the data collected. The point is that real data are building up, gathered from discussions with learning providers in this area. I am sure the groupings will not get it absolutely right. In an endeavour to be helpful in this area of the process of commissioning and to assure noble Lords that we are in no way attempting to undermine the capabilities of colleges, we shall write to you further on this particular issue. I am happy to do that because I do not want there to be dubiety between us. I genuinely endorse the enthusiasm with which noble Lords have commended what goes on in FE colleges.

I can resist anything but temptation and cannot resist responding to the remark made by the noble Lord, Lord Baker, on capital expenditure. I would not deny that there was a bit of hiccup in this—he said with commendable understatement. Yet I make no apologies for the huge investment of well over £2 billion we have put into FE colleges. When I visited my former FE college, once known as Willesden Tech and now the College of North West London, I was presiding over the opening of an impressive new annex. There were clearly mistakes in the current round. That was identified in the Foster review. Yet there has been huge investment in further education. That is why we can see the kind of success that the noble Lord, Lord Baker, was extolling in his contribution.

I thank the noble Lord for the explanations he has given. They have been quite helpful. Yet I find puzzling this phrase in Clause 40(4)(d) that the noble Lord, Lord Baker, mentioned,

“take account of education and training whose provision the authority think might reasonably be secured by other persons”.

If the funding follows the individual and the commissioning has been done independently with the desires of that particular young person, what is paragraph (d) meant to address? Is there any need for it? It would be helpful for that to be considered either now or at a later stage.

Paragraph (d), which states,

“take account of education and training whose provision the authority think might reasonably be secured by other persons”.

I will come back to the noble Baroness on that specific point. In subsection (4)(a), which mentions,

“act with a view to encouraging diversity in the education and training available to persons”,

we are laying down the issue of choice.

I hope that the assurances I have given will enable the noble Lord to withdraw the amendment. As I said, we will come back to him on the question of commissioning, to ensure that we establish beyond any doubt the independent nature of colleges and their ability to attract students to their courses.

I thank the Minister for his clear statement that FE and sixth-form colleges will not have a catchment area and will continue to enjoy the freedom that they have. That is most welcome. It will be welcomed by FE and sixth-form colleges across the country. I also fully recognise the amount of money that is spent on FE. It started under the previous Conservative Government and has continued strongly under the present Government. That has resulted in magnificent colleges and national institutions. Matthew Bolton College in Birmingham is a national institution. It is a magnificent, university-standard building. So are the Middlesbrough colleges.

However, I have to point out that the handbrake is on. It is not about a foot off the accelerator or stopping the car, but the amount that will be spent in the next three or four years is a small proportion of what has been spent in the past three years. Many projects will not go ahead. This is not quite the moment to debate this, but it is a grave disappointment, because the main instrument of the Government delivering school leaving up to 18 will be the FE colleges and the school sixth-form colleges, and it is those capital programmes that are being slashed to ribbons.

I was also glad that the Minister and the whole Government are now keen on funding following the learner. That was not always the case with the noble Lord’s party when we introduced it back in the 1980s and when we introduced per capita funding and did away with block grants. Money following the learner is absolutely right. Everyone agrees with it. I see that the noble Baroness is nodding. Nod a bit harder, because the ultimate conclusion of that is to give the learner the funding, so that learners themselves can decide which course they want to go to. Then you do not need sub-regional and regional planning bodies and government planning bodies; you trust the person receiving the public service. I am told that that is the Prime Minister's policy.

Of course funding follows the learner, but there has been a fundamental shift in power, which my noble friend Lady Perry has correctly identified. If we allow local authorities to commission, they will have a power that they have not had for the past 25 years. Local authorities will be under pressure from existing schools, some of which will want sixth forms and some of which will want to extend their sixth forms. They will be under pressure from local councillors who say that they want their school to expand into the sixth form, so that pupils do not go to the sixth-form college.

In the past, that matter was decided centrally by the Government, because they provided the funding. We will go back to lots of local squabbles and fights. I see a Peer who is not actually in the House, but is standing at the Bar, who knows a great deal about education and is nodding. I see lots of nodding opposite. We would like your votes on all this one day. That will be the problem: there will be a lot of local squabbling again, just like pre-1992. That is for another day, but I should like some undertaking from the Minister today.

I am very grateful to everyone who has spoken on the amendment and for the explanation given by the Minister. If I may, I shall walk through my understanding of the process, so that the Minister can interrupt me if I am getting things dreadfully wrong.

Let us suppose that a local authority, as part of whatever grouping—perhaps the Minister could let me know what is the grouping around Greenhead College in Huddersfield, so I can see how that meshes with the actuality of travel to learn in that part of the world—decides that it wants to commission, say, 20 new places in strawberry-growing. I chose that because of the badge that the Minister is wearing. It has two FE colleges that might provide this course. They discuss it, and one of the colleges does not want to do it but the other does, so the grouping commissions the second FE college to put on this course. At that moment, the course is commissioned and no money or obligations have changed hands, except that the second college now has to put in place the facilities and the teaching staff to provide the course.

If the thing has been commissioned, it has to set up the course in some way or other. If the local authority has commissioned a course, presumably there is now a provider ready to provide it, which means recruiting someone who knows about strawberry-growing, and giving them an office and the equipment they will need in order to teach the course.

So the course is then commissioned, at which point the first FE college decides that, actually, it will put on one of those courses too, because it does not want to be left out of this wonderful new market. It recruits somebody to teach strawberry-growing—

It will not be an imposed process of the kind the noble Lord, Lord Lucas, described. There would be no point in doing that, because we are talking about responding to already established needs. It would be a process of discussion and consultation, not one of imposition. I repeat that I am conscious of time and, if the noble Lord does not mind me saying so, I do not think that we can take time to go through the minutiae of the commissioning process. I undertook to write further on this matter, because I think it is important that we try to establish clarity. I merely intervened because the noble Lord, Lord Lucas, implied that if I did not intervene, it meant that I agreed with his analysis, and I am afraid that I cannot on that point. We have explored this subject very well and, in the light of the assurances I have given, I hope he will consider withdrawing the amendment.

Yes, but I will continue where I left off because, given that I fail to understand anything the Minister has said, it is important that he and his officials understand what I mean. As I said, by everyone’s agreement, FE college No 2 has installed this course, and FE college No 1 then decides it wants it too. Nobody can stop it: it has total freedom to set up this course itself. It sets up another course offering 20 places in strawberry-growing, but when it comes time for the students to decide, they all flock to college No 1. College No 1 gets the funding, while college No 2, which had been commissioned by the local authority to put on this course, gets no funding. So that is my understanding of total freedom and of what the Government have promised will be the position. On that basis, I am happy to withdraw the amendment.

Amendment 96 withdrawn.

Amendment 97 not moved.

Amendment 98

Moved by

98: Clause 40, page 23, line 38, at end insert—

“(f) act with a view to satisfying itself that it has taken the necessary steps to screen for, identify and professionally assess any learning difficulties that the person may have;(g) with regards to the professional assessment referred to in paragraph (f), ensure that the person is referred for additional specialist support if it is identified that this is required as part of the assessment”

This is a probing amendment, on a subject that is appearing in a number of other amendments to other clauses. It is by no means the first time that this subject has been raised. It was raised in connection with the Education and Skills Bill only last year. The Minister at that time undertook to take the subject away and bring it back again in the Bill that is now before the Committee. I am very grateful to her for doing that, and for the meetings we have had with her and the Bill team in preparation for Committee on this Bill.

What are we probing? The amendments came from an organisation called the Communication Trust—a coalition of 30-plus organisations that are working in the field of speech, language and communication, such as dyslexia trusts and the Autism Trust. I have also talked to organisations that deal with the deaf. We are dealing with a whole spectrum of people who come to the educational arena with problems that prevent them from engaging immediately in it. The trusts’ concern is that there is significant variation around the country in the provision of assessment and referral to specialist services for those with hidden difficulties. If you are talking about an education system, it is essential to talk about the ability of everyone to engage with it to make certain that the opportunities are there and that any remedial action is laid down and prepared.

I do not want to burden the Committee again with the story of how I came to be involved in all this, but I remind your Lordships that the governor of a young offender prison in Scotland told me that if he had to get rid of all his staff, the last one out of the gate would be his speech and language therapist. I had never come across a speech and language therapist in a prison before, and I asked him why. He said, “These young people cannot communicate, and unless they can communicate both with us and with each other, we do not know what is wrong with them, so we cannot start any process of helping them to live useful and law-abiding lives”.

I discovered that by carrying out a speech and language assessment, the therapist could find out not only about problems of communication, such as the ability to talk to people, but about healthcare problems, memory loss, hearing problems and the inability to see the blackboard, quite apart from all the difficulties that we associate with learning. Because of that, they were unable to conduct relationships with each other. Relationships conducted with the fist are not the same as those conducted by the voice, so by enabling them to conduct normal relationships, the whole atmosphere in that place changed, as did the relationships between the staff and prisoners. The education and healthcare staff were able to take proper remedial action.

Out of that came the clear understanding that because of what is happening around us now, the inability to communicate is the scourge of the 20th century. People do not communicate in families. They do not have meals or discussions together. They do not have the normal life which I am sure noble Lords have had. Then they go to school and cannot communicate with each other, their family or their friends. They cannot communicate with the teacher. If you arrive at school unable to communicate with the teacher, you have a terrible problem to overcome. That is why I said in connection with the statement made by the Education Minister earlier in the week that it is extraordinary that people are allowed to move on from the very basic level in primary school before they have learnt to read and therefore to help communication so they can engage in further education. We therefore damage them even further.

Later amendments aim to make certain that every child receives an assessment, before they begin primary school, that will identify what are described as the hidden problems—dyslexia, autism and other learning difficulties—to enable something to be done to prepare them to communicate to begin the educational process. Were the noble Lord, Lord Maginnis, in his place, he would tell us that Northern Ireland, sponsored by the National Health Service, has recently passed legislation to make certain that every child in Northern Ireland is assessed at the age of two. You cannot obviously understand all the nuances of the problem at the age of two, but certainly you can identify that there is something which needs to be looked at to enable that child to make progress.

Frequently people talk about evidence. I declare an interest as an adviser to the Helen Hamlyn Trust. Following what we discovered in prisons, she funded a child for two years with speech and language therapists in young offender establishments to find out the size and shape of the problem. That trial was conducted by Professor Karen Brown from Surrey University, who wrote this up academically over a period of two years. She proved conclusively that if action had been taken at a much earlier stage, the child would not have got to the age of 15 with all the problems still there. Goodness knows what that meant, other than that their education between the ages of seven and 15 had not been properly conducted because they were not able to engage with it.

My reason for deliberately putting down the probing amendment and putting my name to other amendments to other clauses which address this issue, and the issue of young offenders in detention when we come to it, is that, if this education is going to be delegated again to local education authorities, it is essential that spelt out in the Bill is the action that they need to take to make certain that people with these learning difficulties can engage in what local education authorities are now being commissioned to provide. I beg to move.

On behalf of my noble friend Lady Garden, who has added her name to these amendments, I would like to say a few words. From these Benches, we support the amendments of the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, and we agree with and support what the noble Lord has said in his introduction.

The earlier the diagnosis of any learning difficulties is made, the more effectively they can be addressed and, hopefully, remedied. Clause 40(3)(b) states that local authorities already must “have regard to” learning difficulties. Amendment 98 would require them to do more than that—to ensure that professional screening had taken place and to follow up with appropriate action. Amendment 101 spells out specific learning difficulties which can, and should, be identified. However, this list must not be regarded as being exclusive.

We have the ability these days to identify and to comprehend a wide range of learning difficulties and signs of these can be detected by experts at earlier ages than ever before. In response, a variety of teaching and training methods have been developed by experts to tackle these difficulties, offer solutions and ensure that the child makes progress. How frustrating for any child where he or she is not making progress.

There is inevitably a cost associated with this, but any cost is as nothing compared with the cost to the individual of a diminished quality of life if their difficulties are not identified, and also the cost to society, which stands to benefit socially and economically from each individual who is able to participate to their fullest potential.

The Youth Justice Board estimates that around 150,000 children and young people under the age of 18 enter the youth justice system each year and that, of those, about 70,000 are of the current compulsory school age of 16 or under. Fifteen per cent of those have statements of special education needs, compared to about 3 per cent of the general population.

The Bercow report found that 60 per cent of the 11,000 people in young offender institutions each year have speech, language and communication difficulties. The noble Lord, Lord Ramsbotham, is absolutely right to emphasise the importance of tackling those communication difficulties, which are widespread in the community of young people who find themselves in trouble with the criminal justice system. Earlier diagnosis would have a very positive impact on the social inclusion of these young people.

I know that these amendments have the support of the Communication Trust, which has pointed out that there is significant variation across the country for those with hidden difficulties in terms of assessment and referral to specialist services. Putting something like this into this legislation would help to make sure that people benefit from the services that they need in the areas where these things are not being dealt with as well as they are elsewhere.

I shall not detain your Lordships for long. I thought for one awful moment that I was going to have to move this amendment on behalf of my noble friend Lord Ramsbotham, as it was due to be heard last week. But he has now been able to move it himself and has done it considerably better than I would have been able to. I commend what we have just heard about the figures, which clearly show that testing should start at an earlier age. It is very good news that Northern Ireland has decided that the age of two is when compulsory testing should start.

I very much support these amendments. The Communication Trust has done an excellent job. It has provided these amendments one behalf of some—I think, 30—voluntary organisations. Incidentally, I believe that it gets a grant from a government department, which clearly also approves of its work. I hope that that means that greater notice will be taken of what it says. Above all, I emphasise the point about the importance of communication. If you cannot talk, you are highly unlikely to be able to read and will have all sorts of other problems as time goes on. It is good to know that one of the organisations supporting the trust is I CAN, to one of whose meetings I went the other day. We must never forget that great phrase, “Chatter matters”. It does indeed and it matters very importantly in this area. I support the amendment.

As with Clause 40, we will keep coming back to this issue at unexpected moments during the next day or two. I am delighted that the noble Lord, Lord Ramsbotham, has started off in such fine fashion. I am optimistic. The other day, the Prime Minister promised that every young child who started falling behind in reading and maths would receive help to catch up. However, it makes little sense to do that without having baseline, diagnostic pre-testing at the beginning or you will not know what falling behind means for any particular child.

I was also encouraged by Michael Gove’s suggestion—I hope that my noble friend on the Front Bench will amplify it—that there would be a test at the beginning of secondary school. That, too, should be a proper diagnostic test, which should enable teaching at secondary school to be accurate and tailored to the individual and should enable an understanding of the problems that that individual brings with them.

Here we have the Government proposing, I hope, a proper diagnostic test in primary school, my noble friend proposing it at the beginning of secondary school and the Irish doing something about it at the age of two, which is when some of the serious early-showing special needs, such as autism and speech difficulties, can be picked up. The pattern is set for a positive reply from the Minister, to which I look forward.

This is the opening barrage of a campaign to get the idea of more screening into this legislation. As the noble Lord said, screening will help to identify hidden disabilities. He is right to concentrate on language and basic speaking communications problems. To put it bluntly, if that is not right, it is very difficult to even explain what the other problems are, and they feed off each other. Much good computer software is rapidly removing many of the problems around dyslexia but, unless you can speak, you cannot use it, because it is voice operated. These things feed off each other, so they have to be addressed.

One thing that you have to know is what is there. We have moved on so far in the past few years and there is now a much greater recognition that these problems can be dealt with, or at least mitigated in some way, if only they can be identified. There are various fault lines in areas where you have the greatest amount of educational failure. Later, we will debate issues concerning those who go into the prison system. At all points where you have a new type of education, there is a good opportunity to put in a screening process. When the Minister responds, I would welcome an idea of how far the Government are going to take this. It would be interesting to find out what problems they have with the principle of screening.

I hope that we do not hear that we do not have the perfect test. There is no such thing. There will always be people whom you miss. If you have defence in depth, you will be able to pick them up later. If you deal with most people who have a problem, you will probably identify those who stand out as having something that is unidentified in the classroom. When you get large masses of people who are not succeeding and not achieving, it is much easier to hide. From my work with dyslexics, I know that the easy thing is to disrupt the classroom or to be at the back in a large group. You are safe: you will not get identified or placed under pressure. The survival method of people who find themselves in trouble is either to hide, smile sweetly in the middle of a group or disrupt. If the Minister introduces screening that works for the majority, that small group will no longer have this opportunity.

As the noble Lord, Lord Ramsbotham, said, this is a probing amendment. I would welcome the Minister giving us at least an idea of the Government’s attitude on this question. We should remember that getting 90 per cent identification would still be a massive leap forward. It really would be something good and it would give us a chance to pick up people later. There is no perfect answer here; there is merely a better answer. I look forward to the Minister giving a positive reply.

I am glad to support the noble Lord, Lord Addington, in that and to offer my support for the amendment. However, we need to recognise that we are looking at the problem from inside the Bill, as it were, and ought not to blinker ourselves to the fact that this problem goes much wider, and needs wider remedies, than are available in the Bill.

I wonder whether the noble Lord has read the report on this matter by the Royal College of Speech and Language Therapists. It has eight simple recommendations, some of which fall within the Bill and some of which do not. As they are brief, I will repeat them. It says:

“1. Every PCT should have a speech and language therapy specialist lead with a remit to develop speech and language therapy services for vulnerable young people in the community.

2. Every youth offending team must have at least one full time speech and language therapist who would also provide a service to community provision such as units for children excluded from school, probation, mental health and drug misuse services.

3. The ASSET assessment must have a section on communication skills to identify those with speech, language and communication needs”.

Where it says “must”, we would say “should”.

“4. The intermediary schemes should be extended to support defendants.

5. A speech and language therapist should be appointed to work within each of the … secure training centres.

6. There is at least one full time specialist speech and language therapist working in every young offender institution.

7. Each young offender institution should provide a communication support worker to support and carry over the work of the specialist speech and language therapist.

8. Establish a national professional lead to oversee and coordinate this new service”.

We should think of ourselves as trying to provide part of a larger provision that will reach children who are not under the aegis of the education service in its various forms but out in the community and often passing through the hands of the National Health Service. I offer this as a gloss on what has been said before, because I think that we ought to come back to it in this Bill in detail and in other Bills on later occasions, but I support this amendment wholeheartedly.

The noble Lord, Lord Ramsbotham, painted a depressing picture of young people with special needs who are unable to communicate and engage with the people around them. I agree with the noble Lord, Lord Addington. I was dyslexic and I hid, but other people who have a problem become disruptive and are then excluded. It should come as no surprise that they then get caught up in the criminal justice system. Whenever I think of this problem, I think of that old nursery rhyme:

“For want of a nail, the shoe was lost”.

Too many young people go undiagnosed until it is too late.

I, too, support these amendments. I suffered from a speech impediment as a child, received assistance, did not have to do very much and was relieved of it. I was teased for that impediment before it was treated. How much worse it might be for some young people with such a problem. I support what my noble friend proposes and I pay tribute to him for his ceaseless, long-term campaigning in this area. I was grateful for the extremely helpful meeting that he organised with many of the so-called stakeholders in this area some time ago. I ask the Minister perhaps to write to us on the situation and give the numbers of speech therapists that we have and are planning to develop. Finally, the more health visitors and social workers we have, the less these sorts of problems are likely to arise, because to some large degree they are a function of poorly functioning families. If we have the right professionals in place to support families, some of these problems will simply either be noted very early or not develop in the first place.

Amendments 98 and 101 are indeed part of wider efforts—as my noble friend Lord Elton said, we will return to them—by your Lordships to secure appropriate provision for those who have learning difficulties by making sure that local education authorities’ duties include testing for and identifying those with learning difficulties and referring them to additional support if needed. As no doubt the Minister will inform us, the Bill already states that the LEA,

“must secure that enough suitable education and training is provided to meet the reasonable needs of persons in their area”.

This includes those who are aged 19 or over but under 25 and are subject to learning difficulty assessment. We would agree that, so far as it goes, this is an important part of the duty of an education provider and we welcome the fact that it is included in the Bill.

However, the amendment moved by the noble Lord, Lord Ramsbotham, would make sure that the LEA takes an active role in seeking to ensure that it has done all that it reasonably can to screen for, identify and then assess any learning difficulty. This, as he said, is considerably more than is specifically provided for in the Bill. A superficial reading of new Section 15ZA(1) might lead one to conclude that the noble Lord’s amendment is already covered. A diligent LEA might not need to have it spelt out in the Bill that securing enough suitable education for all those for whom it is responsible includes screening, assessment and referral for additional support if necessary. Nevertheless, the worry would be that an overstretched, understaffed, inexperienced or underexperienced LEA might take a more passive approach and simply address the needs of those who requested extra assistance rather than imposing a rigorous assessment process to discover all those who might potentially require help.

Without a thorough assessment of the problems, there can be no hope of adequately providing for those who need help. Amendment 101, one hopes, refines the definition of those who should be considered as having learning difficulties by mentioning specific conditions. It would be dangerous if some of the conditions in this list were not to be considered covered by paragraphs (a) or (b) of subsection (7). The noble Lord, Lord Ramsbotham, emphasised the ability to communicate, which encapsulates what most of these specific conditions come down to. I hope that the Minister will be able to reassure us on these matters.

I support this group of amendments and take this opportunity to spell out the importance of the learning disability assessment for young people with learning difficulties. I am president of the organisation Skill, the National Bureau for Students with Disabilities. It has expressed concern about the learning difficulty assessment, as that will determine the route that young people take in their post-16 education and training. Whether or not a young person has a learning difficulty assessment will determine the level of support and provision that they receive and their entitlement, as well as whether they are the responsibility of the YPLA or the Skills Funding Agency. There are also concerns about how all disabled learners, particularly those who have not been formally assessed, will be identified as in need of assessment and subsequent support. I hope that the Minister will be able to give us an assurance that learners without a learning difficulty assessment will not be disadvantaged in post-16 provision and support.

Statutory guidance on Section 139A and 140 assessments has only recently been published and is open to public consultation until July. The draft guidance does not refer to the new agency responsible for funding disabled learners, specifically the YPLA. Instead, it refers to the Learning and Skills Council, which will cease to exist from 2010. This is of concern, as we want to be sure that the guidance is fit for purpose before the Bill receives Royal Assent. I referred to this point at Second Reading. Disabled learners’ experiences of transition in post-16 learning and their ability to make informed choices will depend largely on the final form that the guidance takes, so we want to be sure that there is robust, relevant and coherent guidance in place that delivers appropriate learning choices for all disabled learners aged 16 to 25.

In the case of Alloway against the London Borough of Bromley, the judgment concluded that there needs to be tighter control over the quality and compliance of Section 139A and 140 assessments. Ensuring high-quality assessments is critical, as they determine the provision and support that young people can access and, in turn, their learning outcomes and the possibility of progression. The YPLA, I want to suggest, needs to establish a quality control framework that underpins the Section 139A and 140 assessment process. The quality control framework must include disabled learners, parents and organisations representing disabled learners in framing the provision and support that is to be made for individual disabled learners. A robust quality control framework would ensure a high standard of professional expertise and experience without being prescriptive about the specific qualifications that professionals undertaking these assessments will be required to have. It is important that there is a framework of accountability for the quality of Section 139A and 140 assessments. Senior managers within the local authority or the commissioning agency, such as Connexions, should be responsible for the final sign-off of Section 139A and 140 assessments. This is particularly important in the light of the Alloway case, which concluded that Bromley and Connexions had not met their statutory duty properly to assess the learning and support needs of Stephen Alloway.

A quality control framework would ensure that the assessment process was equitable for all disabled learners in need of it and would ensure consistency across local authority areas. Moreover, without such a framework in place to control assessments of disabled young people, judicial reviews will increasingly be sought by parents and those with responsibility for disabled young people. Implementing a quality control framework is beneficial for disabled young people and their families and for local authorities to ensure that they are meeting their new statutory duties under the Education and Skills Act of last year and under this Bill once it receives Royal Assent.

The duties and powers that LEAs have to arrange and provide an assessment must be highlighted to ensure that learners who need an assessment receive one. Currently, many disabled learners face difficulties receiving an assessment, which poses a barrier to their participation in post-16 education and training. Assessments are intended to be holistic, addressing a range of individual needs from learning support to transport provision. It is important that we get an assurance that statutory guidance on the Section 139A and 140 assessments highlights that, where a local authority believes that an assessment would benefit a learner regardless of whether the learner has been assessed or supported before, it will arrange for an assessment to take place. I am seeking from the Minister an assurance that the assessment will cover the wider transition planning for disabled young people, including the learning and support needs of the given individual, such as their transport needs.

To sum up, we need the following assurances from the Government today. First, we need to know that disabled learners without a learning difficulty assessment will not be disadvantaged in post-16 provision and support. Secondly, we need to know that there will be a robust quality control framework that will underpin the Section 139A and 140 assessment processes. Thirdly, there must be a framework of accountability for the quality of Section 139A and 140 assessments, in which, specifically, senior management within local authorities or the commissioning agency, such as Connexions, will have responsibility for the final sign-off of these assessments. Fourthly, we want to know how local authorities will identify and assess which disabled learners need an assessment and ensure that there are sufficient qualified staff to undertake them. Fifthly, the assessment must cover the wider transition planning for disabled young people, including the learning and support needs of a given individual, such as their transport needs. Sixthly, we need clarification on how local authorities will identify young people who are not in education, employment and/or training as in need of an assessment. Finally, professionals working with disabled children and young people in offender institutions should begin the assessment process of particular individuals who require it and have regard to statutory guidance relating to Section 139A and 140 assessments. I hope that the Minister will be able to reassure us on at least some of these points.

I congratulate all noble Lords who have taken part in the debate, and I thank the noble Lord, Lord Ramsbotham, for initiating it. It has been a very wide-ranging and illuminating debate.

On Amendment 98, I share the concern that we should continue improving the identification and assessment of children and young people with learning difficulties. It is right that learners’ needs must be central to the commissioning process and to the functions of local authorities. I reassure the Committee that local authorities, alongside post-16 providers, will continue to play an important role in identifying young people with learning difficulties. Many colleges and other providers have their own assessment tools to identify young people’s needs. They are also able to refer young people to the local authority and other specialist agencies if there is a previously undiagnosed difficulty or concern.

Local authorities have duties under Section 139A of the Learning and Skills Act 2000 to carry out assessments of pupils with statements in their final year of compulsory schooling, or during the sixth form, who are intending to access further education or HE. This is to ensure effective transition and that the special educational needs of these young people will be met. We have strengthened the draft statutory guidance on learning difficulties assessments, which is currently subject to consultation, to make it clear where local authorities should provide an assessment for young people without a statement.

Using the Learning for Living and Work Framework, the local authority, in conducting the assessment, will work closely with a number of practitioners to ensure a truly multi-agency process. The more relevant agencies involved in this process, the greater the opportunity for ensuring that particular issues are picked up. The assessment process should build on the views and expertise of these agencies and of other people who have already supported the young person. This is to ensure that the assessment of their educational and training needs, and the provision needed to meet them, is evidence-based and valid. It will result in a report on a young person’s needs that identifies the provision and support required to meet those needs. Local authorities will be required through the national commissioning framework to have regard to the requirements set out in this report.

Of course, it is critical that these procedures work well in practice. I reassure noble Lords that Ofsted is currently conducting a major review of provision for children with special educational needs. This will include the consideration of issues around young people’s transition from school to further education and the assessment and support that they receive to help with that transition and their continued success in further education. Ofsted will be reporting in the summer of 2010.

While I understand the intention behind Amendment 101, the definition used in this Bill is the established definition, which is more or less the same in both the Education Act 1996 and the Learning and Skills Act 2000, just altered slightly to take account of the different ages of learners and the different types of institution that they attend. It is a broad definition that rightly includes the difficulties listed in the amendment, as well as many others. It is therefore not necessary to list selected ones separately. Indeed, I would be concerned that doing so would risk creating the impression that other types of learning difficulties were less important, or even creating a hierarchy of needs, which I am sure is not the intention of the amendment. We appreciate that there are some serious challenges here, and we are taking steps to improve the identification and assessment of learning difficulties for our young people and young adults, but we acknowledge that a great deal more needs to be done.

I shall address some of the specific points that were raised. The noble Lord, Lord Ramsbotham, talked about the importance of early screening. On the question of why we do not introduce the screening of all children for a condition such as dyslexia, a review was conducted by Jim Rose that concluded that blanket screening for dyslexia is questionable, not least because screening tests for that purpose are as yet unreliable. His report says that a better way to identify children at risk of literacy difficulties and dyslexia is to closely observe and assess their responses to pre-reading and early reading activities in comparison to their typically developing peers in the reception year of primary school and beyond. The review found that the first step advocated in identifying children who may have learning difficulties including dyslexia is to notice those making poor progress in comparison with their typically developing peers receiving high-quality wave 1 literacy teaching. We have endorsed all the recommendations and have made available £10 million to support their implementation.

I had information which suggested that we might get a comment like that. Does the Minister agree that if the method he described is the best way of catching those w