To ask Her Majesty’s Government whether they will consider amending the Freedom of Information Act 2000 to give those individuals about whom information has been requested the right to know the names of individuals or organisations who have made such requests.

My Lords, the Government have no plans to amend legislation in this way. Disclosure of the names of individuals or organisations making requests about other individuals would have to be considered on a case-by-case basis under the Data Protection Act, just as personal data falling within the scope of a freedom of information request would be. However, any individual who is the subject of an FoI request can make a subject access request, an SAR, under Section 7 of the Data Protection Act to find out the recipients of his or her personal data.

My Lords, I welcome my noble friend’s Answer. It is a lot better than I thought it could possibly be. As a supporter of the Freedom of Information Act, I ask my noble friend whether he is aware that many of us want it to work well but believe that it should work fairly. If investigative journalists are going to have a field day at our expense, maybe we should know who they are.

I am glad to have pleased my noble friend; I have to say, I do not always do that. In fact, the Freedom of Information Act was drafted so that whenever there is an issue relating to personal data, the Data Protection Act regime applies and acts as the single scheme that considers whether personal data can be processed or disclosed. If the part of the Data Protection Act that I referred to in my original Answer was not as well known as it ought to have been, perhaps this Question and Answer will make the headlines today.

My Lords, I support the noble Lord’s Question. Like many of your Lordships, I, too, have been stalked. When I requested information, I could not get it, but I had my own methods. I said, “Why am I being stalked by you?”, and the cub reporter said, “We’re looking at Lords with Northern Ireland interests”. I said, “Well, why is Lord Irvine’s name on this?”, and he said, “Because his first name’s Derry”. That’s the quality of some of the reporting.

I remind the noble Lord that requesters, those who request, are required to give their name when making a request. That is a requirement of Section 8 of the Freedom of Information Act. If it is thought that a pseudonym is being used to shield his or her identity, it is possible to avoid the request by considering it vexatious.

My Lords, in the event that an application were to be made under the section that my noble friend referred to, is it still possible for a refusal to be in place—in other words, that the information identifying the person concerned may still not be published?

Yes, it is possible. The considerations of the Data Protection Act apply, both to finding out who is making a request and to the subject of the request. It is quite possible that the answer would come back, “No, we can’t say because of data protection rules”, as it is equally possible for those subject to FoI requests to rely on the same defence.

My Lords, in common, I am sure, with many former Ministers, I frequently get letters from, in my case, the section of the Treasury dealing with this, saying that it has had a freedom of information request about something that occurred during my time as Chancellor and asking whether I have any observations to make. I say, “No, you go ahead, I’ve nothing to hide”. But it will never tell me who has made the request. Will the Minister tell all government departments that they should make it known who has made the request?

I understand exactly what the noble Lord is saying and, yes, I shall pass that on.

My Lords, does my noble friend agree with me that it is now time that we amended the Freedom of Information Act to bring all publicly funded bodies under its remit and that that must include all aspects of the BBC?

My noble friend will know that in July this year the Government published their response to a public consultation on extending the Freedom of Information Act through a Section 5 order. There is considerable support for extending the Act. Consultation is being undertaken with those bodies that were proposed at this stage for inclusion; namely, academies, the Association of Chief Police Officers; the Financial Ombudsman Service and the Universities and Colleges Admission Service—UCAS. I cannot comment on the BBC.

My Lords, we welcome the clarification about the subject access request, but the point of the noble Lord, Lord Lawson, is well made. How extensive is information on the subject access request on government websites and otherwise? I have spent two hours trawling websites and could not find any reference to it whatever.

Clearly, it is not extensive enough. I seriously hope that, as a result of my noble friend’s Question, it will become rather better known.

Can the Minister explain to us the timing of that subject access request? If someone applies for information, is an answer given instantly, or is there time for you to make the application? How long does it take for the subject to get an answer? I am interested in the timing of the sequence.

I cannot really give an exact figure. The subject of a request is given 20 days to respond, unless there are exceptional reasons for not doing so. I cannot answer the noble Baroness’s question, which was how long it would take make a request and get an answer under the Data Protection Act, but I shall write to her.

My Lords, as my noble friend is aware, every government department has a number of designated freedom of information officers. Will he ensure that his Answer to this House today is sent to every one of them?

Yes, I will. My department has overall responsibility for freedom of information policy, and I shall make sure that what my noble friend asks for happens. The Freedom of Information Act is one of the triumphs of this Government. For a Government who are sometimes described as authoritarian, it is unbelievable how much we have opened up to the general public.

To ask Her Majesty’s Government what they forecast will be the balance of payments in the first quarter of 2010.

My Lords, the Government do not publish a quarterly forecast for the balance of payments. The latest forecast for the balance of payments was published in the Budget. The forecast for the balance of payments deficit for 2009 is 3.5 per cent of GDP. The Government forecast the current account to be equal to the same proportion of GDP in 2010, at 3.5 per cent.

I thank my noble friend for that reply, but is it not clear that the balance of payments for the last quarter of 2009 will be very good, because of the 15 per cent sales tax and the expected return of the 17.5 per cent in 2010? Since the figures for last quarter of 2009 will be published in the first months of 2010, there will be some satisfaction at the state of the economy. The question remains about the level of sales early next year. What action are the Government considering there?

I am grateful to my noble friend for identifying a trend which is very much in the right direction. It will be appreciated that many aspects of the economy, such as the slowing of the rise in unemployment and the rise in the FTSE index, are indications of the successful implementation of government policies in the past 18 months to two years, since the credit crunch occurred and we entered the biggest recession for a very long time. My noble friend is right that we can look forward to some improved figures for the last quarter. The Government have in place a strategy on the economy, which has been predicted from the Budget position up to 2013.

My Lords, forecasting the balance of payments is incredibly difficult, because it is the difference between two enormous figures, but unless I misheard my noble friend’s Answer on this for 2010, it is ludicrously pessimistic. Did he not say that he thought that it would be well over 3 per cent of GDP? On any analysis—certainly my own—the balance of payments is improving very rapidly, as my noble friend Lord Sheldon points out. It is highly likely that the per cent of GDP and the current account deficit will be below even 2 per cent. I hope that someone in the Treasury is taking note of that.

My noble friend is living proof that economics is not the dismal science that is sometimes suggested, as he takes a more optimistic perspective. The Government are rightly cautious, as we are going through very difficult times indeed. He may be right that the Government are being unduly cautious with regard to the forecast. Certainly, the competitiveness of the British economy is ranked highly in international comment and evaluation, and we compare very favourably indeed with the most advanced economies in the world. Of course, we all know that our fellow citizens are paying a very high price for the recession. Nevertheless, it is beginning to show that the Government’s strategy is bearing fruit.

In making these forecasts, what assumption is made about the exchange rate?

My Lords, the noble Lord is right to identify the exchange rate as playing an important part in this overall position. Our export earnings are rising and being compared favourably with those of other advanced countries. I do not underestimate the fact that the exchange rate is a very important dimension of that but the noble Lord will surely accept that, against a background of a colossal drop in world trade which has caused such difficulties for all world economies, the British economy is beginning to show some aspects of recovery.

Does the Minister accept that the health of the financial services sector is a major contributor to our balance of payments and our exports? Could he comment on stories in today’s newspapers that the Government are planning to invest another £5 billion in Lloyds Banking Group?

My Lords, that is a pretty detailed question. I am briefed up to the eyes on employment statistics as well as on the broader economy, but I do not have an immediate comment to make on that question, except that the noble Lord will have heard my noble friend Lord Myners talk yesterday about how active he was on the banks. He is spending great time on the critical relationship between the necessary support for the banks that the Government have provided and the importance of the taxpayer getting due reward in due course for the colossal sums that have been invested in support of the financial sector.

My Lords, would my noble friend not agree that the upside of the competitive exchange rate—it is now something like 93p against the euro—is that it is good for exports? Is he aware that some of us view with equanimity the possibility that the pound might eventually settle at near parity with the euro?

My noble friend will not expect me to share such equanimity from the Dispatch Box. Of course, the exchange rate plays a significant part. It will have been noted that the pound rose against the dollar yesterday; against the euro, of course, it did not, as my noble friend has indicated.

However, we must make progress on the balance of payments. We are currently operating at a 3.5 per cent deficit on GDP in the worst recession since the war. The deficit in 1989, under another Administration, was 4.9 per cent.

To ask Her Majesty’s Government how many innocent people are on the police national DNA database; and when they will be removed.

My Lords, as at 24 April 2009 there were some 4.5 million persons on the National DNA Database, of whom some 986,000 had no current conviction or caution record held on the police national computer. This included those convicted but whose police national computer record has been deleted, cases where proceedings are ongoing and those with no convictions.

We are currently considering DNA retention policy in our response to the European Court judgment.

My Lords, are we to understand that close on a million innocent citizens have their data on this database? Do the Government not understand that this is unacceptable in terms of civil liberties, privacy and general good management of society? What time span are the Government working to on the European ruling to ensure that innocent people are taken off this database within, say, at least six months?

My Lords, as I said in my initial response, not all of those people are necessarily innocent; a large number are people whose convictions have been removed from the police national computer. This happened because, prior to 2006, things were weeded out from that computer. The number is therefore less, but I take the overall point.

We must clearly strike a sensible balance between the huge value of DNA and what it has done in protecting our society, and the interests of the individual. There is no doubt whatever that the results of holding DNA have been amazing. Over four and a half years, about 200,000 profiles were retained. Of those, 8,500 matched crime scenes involving 14,000 offences including 114 murders, 55 attempted murders, 116 rapes, 68 other sexual offences, 119 aggravated burglaries and 127 offences involving controlled drugs.

We clearly have a responsibility to protect society and we must have a balance. We have therefore gone out with a consultation and 503 people have responded. We are looking at the results, and will then make a decision on how we should move forward.

My Lords, could my noble friend, a simple sailor, explain to a simple police officer exactly what a totally innocent person has to fear from the retention of their DNA on the database? Also, how many people, having been arrested but not convicted of an offence, have subsequently been proved to be guilty of very serious crimes committed either before or after that arrest as a direct result of the retention of their DNA?

My Lords, I thank my noble friend for his interjection. It is a very interesting point. I quote the noble Earl, Lord Ferrers, who is not here, when he said in a previous debate:

“However, if the police keep a person’s DNA, what does that matter unless they subsequently commit a crime? If they commit a crime, whether it is a terrorist crime or whatever, the DNA is available to help to find them. If they have not committed a crime, they have nothing to worry about. The idea of the police hanging on to those samples sounds terribly intrusive, but, unless a person commits a crime, the samples will not be of any use”.—[Official Report, 9/10/08; cols. 394-95.]

That is, no one will ever know. I have a certain sympathy with what the noble Earl said on that occasion, but there is a responsibility to the individual. That is why we are looking at this more closely. There is no doubt at all, as my noble friend has said, that there are a very large number of people who have been released and not charged. I do not know the exact number but I can give example after example. One person was arrested for suspected illegal entry because he jumped from the back of a van at a motorway service station. He was released without charge, his DNA was taken and put on the National DNA Database. Some two and a half or three years later it was matched against the crime scene of a gang rape where a woman was held down by a group of people. The victim could not recognise any of them. This man was caught and convicted through his DNA. This has real relevance and we have to take all those factors into account.

My Lords, at the moment an innocent person has a complete right to ask a chief constable to take them off the DNA database, but at the same time that chief constable has discretion whether or not to do so and when to do so. In light of the European Court judgment, will the Government issue new guidance to chief constables to instruct them to do so rapidly?

My Lords, Keeping the Right People on the DNA Database, the paper that we put out for consultation, lists our plans. One of the issues is to do with the destruction of profiles. That has been rather complex and difficult, and we will have to lay out very clearly the criteria for destruction and exactly how it is to be done. In the past that has not been as clear and good as it should be; it is something that we will have to rectify.

My Lords, I declare what is probably the view of a very small minority: I would have no objection whatever to having my DNA details on the database for ever, in the hope that it might, in certain circumstances, clear me of a totally false charge.

My Lords, the noble Lord raises a very good point, which I should probably have mentioned. There are a number of cases where people have, I am afraid, been wrongfully imprisoned and the fact that we have their DNA has finally allowed them to be released. That is a very important point.

My Lords, why is it that a disproportionate number of black and Asian minority people are on the DNA list?

My Lords, that is a very interesting point. Looking at those on the DNA database, 77.7 per cent are white, 7 per cent are black, 5.4 per cent are Asian and 3.2 per cent are from other ethnic-appearance groups. We have looked at this in some detail because it is worrying. Our initial look at this makes us feel that this is to do with the fact that in the criminal justice system as a whole there is overrepresentation of black people. It is not because of a problem with the DNA database itself.

My Lords, in December the European Court of Human Rights declared that the retention of innocent people’s profiles was illegal. It is outside the law now to do that. Since then 300,000 profiles have been added to the list. How many of those people are innocent and how many of them have been added since July? We are running at a rate of roughly 40,000 a month. Does the Minister not accept that it is now time to change the system and that the time for consultation should come to an end?

My Lords, the judgment in fact said that it was wrong for us to keep them indefinitely. It did not say that it was wrong to take them. It is an issue of timing and how long these should be held for. I cannot give details of the exact numbers but I shall get back in writing on that. We are looking at this. There is a balance here. We have to weigh up the risk to our people and the very positive results in terms of our safety and justice where horrendous crimes have been committed, which DNA has helped to solve, against safeguarding the rights of the individual. That is what we intend doing. We shall not do it in a great rush. We have now consulted and will shortly come out with our proposals, based roughly around the figures we have given. I know that the Scots have come out with a different figure but all my analysis of that shows that it is not based on any proper analysis at all, so I am quite interested in how they arrived at their figure. However, we have a very clear view of where we are going on this.

To ask Her Majesty’s Government what steps they are taking to preserve the right of newspapers to report proceedings in Parliament.

My Lords, the ability to report proceedings in Parliament remains unaffected by recent events. As my right honourable friend the Prime Minister said yesterday in another place:

“The Justice Secretary has talked to the parties concerned and is looking into this issue”.

He went on to say that he hoped that,

“progress can be made … to clear up what is an unfortunate area of the law”.—[Official Report, Commons, 14/10/09; col. 294.]

My Lords, I welcome the reaction of all parties, the Prime Minister and the Government, to the questions that arose yesterday out of Mr Paul Farrelly’s Question to the Commons. However, the threat still exists. These so-called super-injunctions are becoming more common and can be very oppressive. Will the Government take this opportunity to make it absolutely clear that similar actions to those of Carter-Ruck would be a clear breach of Article IX of the 1688 Bill of Rights, which states that,

“the Freedom of Speech and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament”?

Will the Government also take note of the remarks made yesterday by Lord Justice Laws on the law of libel and set up an urgent review of whether what he called the delicate balance between the right of reputation and the right to free expression has not perhaps tilted too far in favour of the former? Will they also look at whether so-called libel tourism should not be restrained?

We are looking at all the matters that the noble Lord raises. Of course, the courts have always had the right to restrain publication that would frustrate the very purpose of their orders, but it seems that they have used that power more during the past few years than previously. The Government will not seek to intervene in any way in what a newspaper or magazine chooses to publish. The press must abide by the law just as we all must. However, the issues that the noble Lord raises are very live ones in the Ministry of Justice. My right honourable friend the Justice Secretary is seeing Mr Speaker this afternoon, a senior official from my department is meeting the lawyers of the major newspapers today and the judiciary is being consulted.

My Lords, will my noble friend take this opportunity not only to assure newspaper editors that they will have a continuing right to report proceedings in Parliament but to put it to them that they have a responsibility to extend their typical coverage of Parliament beyond what the sketch writers choose to describe or the latest story of political embarrassment? After all, how are we to have an informed and responsible democracy if the print media fail to mediate the proceedings of Parliament in a reasonably broad, balanced and serious way?

My noble friend makes an excellent point, which will win a lot of support around the House. I very much suspect that my right honourable friend will make that point to the newspapers in the same way as he makes his other points.

My Lords, is it not ironic that tomorrow we celebrate the opening of the Supreme Court, which underlines the separation of powers? Is it not time to remind the judiciary that the separation of powers is a two-way street and that judges should not be lured into imposing injunctions that impinge on parliamentary privilege? The letter sent by Carter-Ruck to Mr Speaker is far from penitent. Would this matter not be settled far more quickly if Mr Speaker summoned Carter-Ruck to the Bar of the House?

The only answer that I will give to the noble Lord is that I look forward to seeing him at the opening of the Supreme Court tomorrow.

Is there not an absolute privilege for the press to report proceedings in Parliament, so long as they do not comment on them?

There is absolute privilege; I am hardly surprised that the noble Lord is correct about that. Proceedings in Parliament are subject to the absolute privilege accorded by Article IX of the Bill of Rights. That article provides that proceedings in Parliament ought not to be impeached or questioned in any court. As I understand it, that means that we in this House and those in another place receive absolute protection from court proceedings for things done while engaged in parliamentary duties. There is of course the principle of qualified privilege as well, which means that in the reporting of proceedings material can be produced provided that it is fairly reported. In particular, reports that were motivated by malice would not be protected by the privilege.

My Lords, further to the point raised by my noble friend Lord Howarth about the responsibility of reporting proceedings of this Parliament and, indeed, other matters accurately, does my noble friend agree that the current Press Complaints Commission is toothless and useless? Would he consider legislation to replace it with a statutory body?

That is a very big question, which I am not prepared to answer.

My Lords, will the Government consider looking more thoroughly at the libel laws? At present, they seem to be making the United Kingdom, particularly the English courts, a centre for worldwide applications to secure substantial damages by people who think that they have been libelled. Should we not try to get rid of that?

There are some important considerations around the law of defamation and libel at present, particularly in relation to costs. We are aware that the costs associated with defamation proceedings have what has been described as a chilling effect, particularly where the impact of success fees under conditional fee agreements is taken into account. The question of what might properly be done to address cost issues in relation to defamation remains under consideration by the Government. These issues, as the noble Lord will know better than most, form part of the important consideration that Lord Justice Jackson is making on costs in civil proceedings generally. His final report is expected at the end of the year and will be considered with interest by all parties.

That the Lord Bishop of Exeter be appointed a member of the Select Committee.

That the order of commitment be discharged.

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

My Lords, I shall speak also to Amendments 213A and 213B. They are separate, as was the case on more than one occasion yesterday. I shall first speak to Amendment 198 and then address the others, which raise different issues, but I thought it best that they remained grouped together, partly for the sake of time.

Clause 88 sets out the duty of the chief executive officer of the Skills Funding Agency to encourage post-19 education. There is an ambiguity in the Bill. Last night when we were addressing Clause 84, I spoke about what is reasonable and proper. Both clauses have ambiguous headings. Clause 88, which refers to Clause 84, is entitled:

“Encouragement of education and training for persons aged 19 or over and others subject to adult detention”.

Clause 84 is entitled:

“Education and training for persons aged 19 or over and others subject to adult detention”.

The noble Lord, Lord Lucas, said my amendments to Clause 84 were inappropriate because he did not think that the issue of what is proper and reasonable necessarily applied to those in detention. However, Clause 84 states that the chief executive must promote the provision of reasonable facilities for,

“education suitable to the requirements of … persons who are aged 19 or over, other than persons aged under 25 who are subject to learning difficulty assessment, and … persons who are subject to adult detention”.

I take it, therefore, that that applies to all adults. Perhaps the Minister could clarify this when he replies.

Exactly the same wording applies in Clause 88, which is about encouraging education and training and applies to all those referred to in Clause 84(1)(a) within the chief executive’s remit. I take it that that applies to all those who are over 19, other than those who have a learning difficulty assessment, as well as those who are in adult detention. Therefore, it is not just related to those who are in adult detention, as the noble Lord, Lord Lucas, implied in relation to my earlier amendments. I was a bit taken aback and, in the light of that, felt that my amendments were inappropriate. However, after thinking about it, it seems to me that the amendment actually applies to all those over 19. We are looking at the issue of the “encouragement” of education and training for all those who are over 19.

This amendment comes from the National Institute of Adult Continuing Education. In general, as a society we want to encourage this ethos of lifelong learning, as the amendment sets out. There are all kinds of reasons as to why this is so: in lifelong learning when people stay in education, they remain happier, healthier and better socially adjusted. They contribute more to society as volunteers. There is a great deal of evidence for that among those who keep up their studies in one form or another, whether they are younger in terms of CPD and training or later on in adult life when they participate in adult learning of one sort or another.

My Lords, we returned after a two and a half month Summer Recess to find that a change of government department in charge of the Bill has led to a dramatic change of direction. Instead of a central operation, we find that regional development agencies, and thus a regional strategy, will now be the key focus for assessing and managing demands. We share the scepticism of the noble Baroness, Lady Sharp, concerning the role of the RDAs here, so I look forward to the Minister’s explanation of why such a change in policy and direction can have been allowed to occur without any information at all being provided to the Committee charged with scrutiny of the Bill. I understand that the Government consider that no amendments are needed to the legislation to achieve that. Nevertheless, the Minister must admit that this is a fairly dramatic change in policy, and we can legitimately demand a detailed explanation of changes behind the legislative framework.

Noble Lords will be aware that we on these Benches have always preferred a sectoral approach. We continue to intend to enshrine the sector skills councils into legislation and put that in the Bill. We stand by that policy and are concerned that we in Committee are not alone in being ignored by the Government. Businesses have not been consulted regarding the Government’s change in approach either. I very much hope that the Minister can provide a full explanation.

In our view the proposals in the Bill will enhance the role of local authorities in identifying and meeting local skills needs. The transfer of responsibilities to local authorities of 16 to 19 funding will of itself enhance their position in skills locally and regionally.

Local authorities will also play a key role in the development and agreement of skills strategies at a regional level. We intend to give regional development agencies responsibility for developing a skills strategy for their region which the Skills Funding Agency will be expected to deliver. In developing its skills strategy the RDA will be required to take account of the national priorities identified by the UK Commission for Employment and Skills and sector skills councils—to reassure the noble Lord, Lord De Mauley, that we are not ignoring the vital role of sector skills councils—as well as the skill requirements of local areas and any sub-regional multi-area agreement partnerships or employment and skills boards.

The regional skills strategy will form part of the single integrated regional strategy which will be signed off by the local authority leader boards, thus making sure that local authority needs are fully reflected. It is not a question of the RDAs developing in isolation a regional skills strategy which they then impose on local authorities. It is a process of them working together. They will be gathering information from local authorities and will consult employers, reflecting two sides of the equation. We see it as a positive development, not one that undermines the role of the sub-regional group, which I agree with the noble Baroness, Lady Sharp, also has a key role to play.

These proposals reinforce the key principles of the demand-led system, with the RDAs and local authorities articulating the skills requirements within their regions and the Skills Funding Agency ensuring that this new system operates effectively, so that individual learners and employers are able to access the courses of their choice.

Amendment 198 would alter the scope of Clause 88. Although I recognise the amendment’s positive intention, some of the detail in this clause is important. First, by removing all references to Section 84(1), this amendment undermines the very clear separation of responsibilities that we are seeking to put in place between local authorities and the Skills Funding Agency. Secondly, it would have a number of unintended consequences, such as removing 18 year-olds subject to adult detention from the scope of the duty to promote participation. I should not have thought the Committee would want to do that in the light of previous remarks on adult detention. Thirdly, on parliamentary accountability, I can reassure the Committee that the requirement in Schedule 4 for the chief executive to produce an annual report and for the Secretary of State to lay this before Parliament is intended to ensure that robust monitoring and reporting takes place.

Before concluding, I want to address some of the questions raised by the noble Baroness, Lady Sharp, and the noble Lord, Lord De Mauley—such as whether Clause 88 applies to all adults over 19, to which the answer is unequivocally yes.

Does Clause 84 also do that? Reading it logically, if you have the “and” instead of the “or”, it applies to persons who are aged 19 and over “and” persons who are subject to adult detention. If it just read, “and who are subject to adult detention” it would be only the one. Do Clauses 84 and 88 apply to all adults over 19, including those who are in detention?

I must check carefully before I respond. I am looking to my team to ensure that Clauses 84 and 88 apply to all adults, including those in detention. I think that I am getting a nod.

I dealt with the aspiration, which we share, for lifelong learning. The noble Baroness referred to a learning bank; I referred to a skills account, but the destination and the intention is the same. We share her enthusiasm to ensure that people do not see learning as a finite process. We know that there is great benefit both to individuals and to society as a whole if the concept of lifelong learning is embraced. As I said yesterday, we are investing a significant amount of money in adult education.

On the question of Greater Manchester and Leeds having a similar role to London, no decision has yet been taken on funding. I have gone over the role of the RDAs. I stress that we do not see RDAs as imposing their regional skills strategy. They will be formulating that regional skills strategy listening to local authorities and employers, via sector skills councils—to address the concern expressed by the noble Lord, Lord De Mauley. Those bodies are a vital part of ensuring that, as we develop—

My Lords, I am grateful to the Minister, but, despite his fond hope, I am not much reassured. He seems to be telling me that more cooks will be involved in spoiling the broth. It is bad enough already, but that smacks of further confusion and muddle. I really asked what changes are needed behind the legislative framework to achieve what the Government are trying to do.

I do not think that we need any more legislative changes. We believe that the people required to develop the regional skills strategy are located in the regional development authorities. We have consulted and written to the CBI, the British Chambers of Commerce, the Alliance of Sector Skills Councils and the TUC. We are discussing the case with them as we speak, so there is no question of there not being consultation.

My Lords, before the Minister leaves that point—

I was not actually leaving that point. I am sorry, I did not mean to be discourteous, but I had not finished developing that point. I hear what the noble Lord, Lord De Mauley, says, when he talks about too many cooks in spoiling the broth. We must get the balance right in the provision of skills. People do not stay conveniently in one local authority. Hence, we have already agreed the need for sub-regional groups; no one has disputed that. It is now a question of ensuring that in the region as a whole we have the right mix of skills. Are the RDAs doing that in splendid isolation? No, they are not, they are required to consult with the bodies that I, and the noble Baroness, Lady Sharp, identified.

I know that we will be accused of complexity and of adding layers of bureaucracy, but the proof of this particular pudding will be in the eating. These things were always complex. It is an illusion that in the past everything was simple. It is not like that. However, I agree that we have to ensure that what we are creating will not be needlessly complicated. We believe that the role of RDAs, which I have been describing this morning, will involve being responsive to local authorities and taking into account the views of sub-regional groups, employers, as represented on the sector skills councils, and other regional bodies.

When the Minister originally described the role of the RDA to my noble friend, I thought I heard him say that, at the end of the process, the RDA would hand the policy to the local authority, which would sign it off. If that is what he said, then, to me, “signing off” means—I may be wrong—(a) accepting, (b) being responsible for, and (c) having the last word. Is that the case? Will the local authority be able to prevail against the RDA if it has a difference of opinion? I think that that is what my noble friend wants to know.

The noble Lord is right that that is what I said. I shall repeat it to be absolutely clear. The regional skills strategy will form part of the single integrated regional strategy that will be signed off by the local authority leader boards, thus making sure that local authority needs are fully reflected. This is consistent with the Local Democracy, Economic Development and Construction Bill currently going through the House—what a wonderful mouthful that is. The noble Lord is right. I hope I have conveyed the fact that this will not be imposed but will be done together with local authorities. Let us hope that it works out that way in practice.

I am grateful to the Minister for responding to this amendment. In relation to paragraph (a) in Amendment 198, if the only objection is that it does not refer to those in adult detention, I would point out to him that encouraging individuals to undergo post-19 education and training comprehends all individuals whether they are in detention or not. I do not think it can be said that it excludes those in detention.

Members of the Bill team seem to be a little uncertain about whether Clauses 84 and 88—particularly Clause 84—comprehend those outside adult detention. The wording is ambiguous. Yesterday the noble Lord, Lord Lucas, took my amendments to apply only to those who are in adult detention, and I was a little taken aback by it. Clause 84’s heading—

“Education and training for persons aged 19 or over and others subject to adult detention”—

is ambiguous, and if we are uncertain, the greater public might be even more uncertain.

The Minister did not respond to my suggestion that there would be an advantage in monitoring whether the chief executive of the Skills Funding Agency was fulfilling this remit to encourage individuals and employers to encourage participation in post-19 education. If this remit is created, it is worth checking on from time to time.

On the other two amendments and the whole issue of regional development agencies and their role, the Minister claims first that the situation is basically much the same as before the Mandelson letter. Yet the letter itself says:

“I can confirm that I am considering the case for modifying the existing plans for the creation of the Skills Funding Agency … to allow the existing skills landscape to be simplified by making the RDAs the single body with responsibility for producing the regional skills strategy”.

I want to be helpful before the noble Baroness sits down. First, on accountability and monitoring, I have said that I can reassure the Committee that the requirement in Schedule 4 for the chief executive to produce an annual report and for the Secretary of State to lay this before Parliament is intended to ensure robust monitoring and reporting. We will certainly take into account the noble Baroness’s point that the report ought to include adult education.

Obviously we do not want to introduce ambiguity and we will check to ensure that there is no unintended ambiguity in Clauses 84 and 88.

We have been around the track a number of times on the role of the RDAs. I have given clear and explicit assurances on the relationship with the local authority. The noble Baroness’s concern is, as always, to ensure that the voice, needs and requirements of local authorities are reflected. I would have hoped that assuring her that the local authority leader boards will be able to sign-off any integrated regional strategy would be a reasonable and sufficient guarantee and that, in the light of the assurances that I have given, she will feel able to withdraw her amendment.

May I revert quickly to the question that I raised? I understand that there will be a considerable number of local authorities in every region. The Minister has told us that each local authority will have the authority to change the RDA policy, because each of them will sign it off. That being the case, it is difficult to see how a consistent regional policy can be developed where there are differences. Many colleges deal with a number of regional authorities anyway, so it is impossible to see how this thing will work in practice.

With respect to the noble Lord, Lord Elton, again there is the impression that this will somehow be a handed-down process. It will not work that way. The RDAs will have a duty to consult the local authorities. It is in their interests to ensure that the skill requirements of local authorities are reflected in any regional skills strategy. I do not understand what the motivation would be to do anything else but that. As the noble Lord rightly says, they have a vested interest in ensuring that there is a sign-off process, so it would be rather self-defeating to develop a skills strategy in isolation and then seek to impose that when the very people whom they are seeking to impose it on in effect have a veto. I stress again that this is a process in which people work together co-operatively to ensure that they develop a regional skills strategy that genuinely reflects the requirements of local authorities, employers and learners across the region. Again, the proof of this particular pudding will be in the eating.

I am grateful to the Minister for attempting to clarify these issues, but I am still increasingly sceptical. Let me quote again from the letter, which says very firmly that the RDAs will be:

“the single body with responsibility for producing the regional skills strategy”.

And subsequently it goes on to say:

“Under this scenario, RDAs would be assigned the lead role in identifying as part of their wider responsibilities for regional economic development, demand-side needs for skills in their regions. These needs will be expressed in a regional skills strategy, led by the RDA, which will constitute an investment plan which would become binding on the Skills Funding Agency”.

That is new and it is not in the Bill. There are many questions for us to ponder on this, but in the mean time, I beg leave to withdraw the amendment.

My Lords, this is a probing amendment. As it stands, the clause lays a duty on the chief executive,

“to secure that apprenticeship places are available in sufficient number and variety for there to be suitable apprenticeship places available for all persons—

(a) who have elected under section 90 for the apprenticeship scheme, and

(b) for whom places have not already been made available under the scheme”.

This seems to be a severe duty. How long is a piece of string? The more successful the apprenticeship schemes are, the greater the number of people who will apply. If, as we have been told, this is a demand-led affair, there must be a question as to whether the chief executive is being given a realistic duty to make,

“places available for all persons”.

In the eyes of Parliament, the duty will not be that of the chief executive but of the Secretary of State, and there is no escaping that. When accountability is asked for, while certainly a Select Committee might wish to see the chief executive, Parliament will ask questions about the annual report, to which the Minister has referred, of the Secretary of State. My amendment seeks to modify the duty so that it maximises,

“the number of apprenticeship places available for as many persons as possible”.

We all agree that we wish to see many people going through apprenticeship courses and we hope that the demand for them is such that it is possible to satisfy everyone who applies. However, if we take into account the Minister’s remarks yesterday about focus and priorities and how there is not the money for everything, it may not be possible. I hesitate over whether it is right to lay a duty on the chief executive and thus on the Secretary of State that will be difficult or impossible to fulfil. In my view, that is not good legislation. What evidence does the Minister have that this duty is in truth achievable? I beg to move.

I rise to speak to Amendment 201. Due to consultations that took place during the Recess, I believe that the Minister will be able once again to give the Committee clarification and assurances regarding disproportionate expenditure. I look forward to hearing those assurances.

The proposal set out in these clauses to introduce the entitlement to an apprenticeship for every young person qualified for it is one of the most important policies being introduced in this Parliament in terms of raising the productivity of our workforce and equality in our society. It is incredibly important that it should be achieved. The greatest problem will be finding the number of places from employers for all those people who want places and who are qualified for them. We know that there is already an excess demand for places and so this is a massive task. It is clear that we will not achieve this unless some money is given to the employer who provides a place. At present the normal arrangement is for all the money for an apprenticeship to go to the training provider, who then finds the employer; the employer pays the wage but gets none of the money, no financial support, not even for the time that the apprentice is spending away from the workplace. This is very different from the practice in most countries which operate the most successful apprenticeship systems. It is clear that we will not get all the places we need unless we find some way of channelling some money to employers.

There are various possibilities. There is the one proposed in our amendment that there should be a fixed sum for every apprentice taken on. One could, alternatively, imagine a limited version of that where money was given only for each extra apprenticeship place provided by an employer; this would minimise the deadweight involved in paying for places that already exist. Or one could imagine a third possibility where any employer who took on an apprentice could ask for and receive the existing money that now goes to the training provider, provided the employer made the necessary arrangements to discharge the responsibilities involved. Even that would be a major step forward towards involving employers more directly than they are currently involved. My colleagues and I strongly urge the Government to pursue one or other of these steps; otherwise it will be impossible to deliver the entitlement. I apologise on behalf of my co-proposers, who wanted to be here but are not able to attend and send their regrets.

I should like to comment on what was said by the noble Viscount, Lord Eccles, because to accept the possibility that we do not discharge this entitlement is just not on; we have to do it. We have to use all the resources at our command, which includes not only the energy of the National Apprenticeship Service and its approach to employers, but it will have to involve local authorities in a profound way in relating more closely to their employers and impressing on them the importance of this entitlement for the local economy. We should not contemplate not achieving this but should have regard to the fact that we will not achieve it unless we involve employers more closely, not only organisationally but financially.

My Lords, I support, particularly, Amendment 202 in the name of the noble Lord, Lord Layard, because it is absolutely essential. All the evidence we have shows that we are falling behind other countries and that we need to upskill tremendously in the whole area of apprenticeships. Indeed, the Government have recognised that and have done a great deal already to move in that direction. But not to disadvantage employers at a time like this is equally important. The only query I have is that the amendment refers to an apprenticeship place to a person aged under 19. The noble Lord, Lord Rix, who is no longer in his place, is concerned that we might also be talking about people with learning difficulties—the noble Lord is now back—and suggests that the limit should perhaps be extended up to the age of 25 for such people. I raise that matter as a particular question.

Again going back to all the points raised by the Minister in support of lifelong learning—the noble Baroness, Lady Blackstone, also has added her name to the amendment—the main point I am trying to make is that everyone has been talking about what Lord Dearing did in the past and how he tried to move the whole country in this direction. I would have thought it would have been ideal to put some emphasis on, and some resources into, this direction at this time, and rather more than is already planned.

My Lords, we on these Benches support the amendment of the noble Lord, Lord Layard. I think he put “under 19” in the amendment because it is important that we increase the number of apprenticeships among 16 and 17 year-olds. I believe that currently only 3.8 per cent of all 16 year-olds and 6.3 per cent of 17 year-olds are on level 2 or level 3 apprenticeship in England.

There is a precedent for what the noble Lord is suggesting. A recent report by the CfBT Education Trust called Lessons from History: Increasing the Number of 16 and 17 Year Olds in Education and Training points out that offering wage subsidies to encourage employers to take on young apprentices during a recession actually works. Between 1979 and 1983 the Training for Skills programme helped 57,000 16 to 18 year-olds to obtain an employer-based apprenticeship. It is clear from this that it can and should be done if we are to achieve what I think the whole House wants to achieve. We hope that the Government will look kindly on the noble Lord’s amendment.

I follow my noble friend in supporting what the noble Lord, Lord Layard, said a moment ago. My interest in the House stems from my interest in small businesses. I have been in small business all my life. I am reassured that we are still raising the issue of exactly how to see that there will be enough apprenticeship opportunities in this country and talking about how this could be funded. That is important for the small business community, and is such an important aspect of apprenticeships, not just for providing apprenticeship places but for small businesses to be able to gain from having apprenticeships.

I remember that some time back we were talking about the retail area and how important it is to help the small-shop community—I have often taken up issues of small shops in my time in Parliament—to be able to obtain some apprentices and to enable them to engage with apprenticeships rather than finding them a burden. There are many different issues here, and I congratulate my colleagues, the noble Lord, Lord Layard, and my noble friend Lady Walmsley, on saying that this is an issue that we must keep our eye on. Hopefully, we will produce some tangible solutions.

My Lords, to emphasise the concerns that noble Lords have expressed, in his 2003 Budget Gordon Brown promised that apprenticeship places would rise to 320,000 by 2006, but by 2006-07 we were 80,000—that is, 20 per cent—short of that total. Indeed, numbers were falling. That disappointing performance reinforces the concerns of my noble friend Lord Eccles. I am sure that the Minister will repeat his words about the need for balance, and we are all in agreement about the need to spend taxpayers’ money carefully, but there seems little point in enacting this part of the Bill if there is no hope of the places being achieved. What reassurance can the Minister offer to both my noble friend and the noble Lord, Lord Layard, that apprenticeship provision will indeed increase in order to meet demand?

My Lords, I understand the desire of the noble Viscount, Lord Eccles, to increase the number of apprenticeship places. That is a desire that I am sure everyone in the Committee shares; the question is how we achieve it. As has already been said, demand exceeds supply quite significantly.

My Lords, I confess that I am somewhat surprised to hear that my rather modest amendment, changing the duty to “maximise” and making it a best-endeavours clause rather than a commitment to provide apprenticeships to everybody, would have the effect of abolishing the scheme. However, since I am probably going to withdraw the amendment, I shall not stand guilty of such an outcome. I am grateful to the Minister for his reply and to all those who have taken part. The noble Lord, Lord Rix, seems to be able to get what he wants with commendably few words.

We need to keep on listening very carefully to what the noble Lord, Lord Layard, says. He did not get a great deal of comfort from the Minister, but I suspect that that will not prevent him continuing with his campaign. We all hope to find that things go back to where they were. When I first joined the engineering industry we did not have to be told, persuaded or cajoled into the idea that apprenticeships were a good thing; we automatically took on apprentices because we knew that we had people retiring and we knew we would need to replace them.

With the RDAs, I suggest that it might conceivably work, as long as their regional strategy is confined to a fairly general paper of about 10 pages long and nobody is allowed to discuss it in any formal meeting or minute any views on it. The only way in which we will get to where the Government want us to arrive and where we all support them is by working at the grass roots and not top down. Meanwhile, I beg leave to withdraw the amendment.

I am grateful to the Minister for his reply, and particularly for his acknowledgment that we are facing a huge challenge. We are talking about doubling the number of apprenticeship places for people under 19, with something like 100,000 extra places in five or so years. That is an extraordinary challenge to bring about an education revolution and to deliver the raising of the education participation age, which cannot be done except through this channel. It is extremely worrying that there is not more public talk about this; we do not hear enough about it from Ministers or local MPs, although this is a great new thing that should be happening in their constituencies. I am still not satisfied that there is a strong enough marketing of this to employers. Can the Minister not think of something new that can be done? I was depressed by elements of what he said, which suggested that what we are doing is fine, because what we are doing is not going to be up to the task—

I just wonder whether the noble Lord is still speaking to the amendment that has just fallen in the previous group. The House is expecting him to speak to Amendment 200, which he should be moving. I hope that I am not confusing the issue, but the noble Lord may want to use that information to focus what he is saying on the amendment.

I am speaking to Amendment 202, which is in the grouping and is the same amendment that I spoke to earlier.

We have not got there yet; we have only got to Amendment 200. Amendment 202 should not be spoken to now, even by the noble Lord, because it fell with the group of amendments whose lead amendment was spoken to by my noble friend Lord Eccles. I do not mean to be discourteous, but the procedure is that we now move on to the amendment in the noble Lord’s name, which is Amendment 200.

I see, thank you. Sorry.

Amendment 200

As I have just said, one of the most important achievements of this Parliament is the introduction of the apprenticeship entitlement. That is how it is always referred to in government documents and pronouncements, except in this Bill, whose Clause 90 simply says that a person who satisfies the requirements,

“may elect for the apprenticeship scheme”.

That wording is simply not strong enough. We are therefore in this amendment urging the Government to say that an individual is entitled to elect for the scheme. That is in line with the concept of an entitlement, and we earnestly hope that it is possible.

That brings me to the second point, on the word “scheme”. In many sections of the community, that word is frankly something that stinks. It means something low grade, like the youth training scheme, on which many people felt that they were marking time rather than moving forward in their lives. We urge the Government to drop the word “scheme”. Almost any word would be better. “Entitlement” would be best, since that is what we are talking about, but the “apprenticeship offer” would be a perfectly serviceable term for what is being proposed.

We are not totally unappreciative of what the Minister has said about the increase in apprenticeship places in the course of the last Government, but we wish to see it expanded and encouraged further. We support what the noble Lord, Lord Layard, has said about the use of the word “entitlement”, which would be one vehicle by which the Government could show how they enforce their encouragement of apprenticeships. So we support the noble Lord’s amendment.

I certainly support the amendment, which brings us back to the matter of entitlement. That is what everyone should have, whenever they reach a point in life when something could be beneficial to them. It is a lifelong learning point, again, I suppose. My concern remains with the financial side that a much higher priority should be given, even during this time, to seeing that there are the resources to enable that entitlement to take place.

I still worry about those with a learning disability, who should be helped up to the age of 25. Nobody has covered the point, because the noble Lord, Lord Rix, has had all his worries sorted out, but we have heard nothing about them on the Floor of the House. I assume that the noble Lord has sufficient assurances about funding for that, but it would be nice to hear from the Minister that it is the case.

I, too, congratulate the Government on a lot of what they have achieved. However, there is a problem with the small and medium-sized businesses, and I am not certain that enough has been done in that respect. Perhaps we could encourage them to act much more as mentors of young people and really get value for that. I remember giving evidence on this sort of subject to an inquiry, and the biggest complaint was from the small or medium-sized employer, which was doing all this training only to have his apprentices, whom he had trained at cost to him, nicked by big employers that were not prepared to pay one penny for the training.

I very much support the amendment and hope that we hear encouraging words from the Minister.

I agree that the public presentation of the Government’s commitment to expand apprenticeship opportunities for young people is important. We are making an ambitious commitment and the scale of this ambition needs to be recognised.

The name we attach to these clauses changes neither the nature nor the scale of our commitment. However, the one thing that the chief executive of the Skills Funding Agency is not able to guarantee is a job. He or she will encourage employers to provide employment opportunities for potential apprentices through a variety of measures. That is the challenge that we face. However, I recognise my noble friend’s concern about the use of the word “scheme” presentationally—I hope to make him an offer that he cannot refuse, if he will pardon the pun—and have committed to consider an appropriate alternative which we will bring forward on Report. I hope that, on that basis, my noble friend will withdraw Amendment 200.

Amendment 203 would change Clause 90 so that a suitably qualified person “is entitled to elect for the apprenticeship scheme”. This would not alter the substance of the clause. A person would still only be able to elect for the apprenticeship scheme if they satisfy the requirements set out in Clauses 90(2) and (3) and 93, and changing the wording to “entitled to elect” does not confer any additional entitlement. It is important that we are absolutely clear about this. However, with that caveat, I am willing to accept this amendment.

I imagine that the noble Lord wishes to express his gratitude.

I am not adequately versed in the procedure. Of course I am delighted with what the Minister has said on both amendments.

When I spoke out of order, I wanted to say that I am not happy with what the Minister said on this. I very much hope that the Government can come up with some constructive suggestion about how it can be made easier for an employer to receive the money in an automatic fashion. Although there are national employers who receive money for apprenticeships, for a local employer that is not the standard system; the money is not pitched directly to them. There is no standard method by which an employer can simply take on an apprentice and go and ask for the money. That is what we need. I hope that the Minister can come back with some suggestion along those lines on Report.

My Lords, unfortunately the noble Viscount, Lord Eccles, is not in his place, but I assure him that I learnt that brevity is the soul of wit the hard way in your Lordships’ House. The first question I asked, nearly 18 years ago, was shouted down by the Conservative Government of the time as “making a speech”. I was then severely ticked off by the noble Earl, Lord Ferrers. So I learnt in those days that to keep things short was preferable. I only wish that some of your Lordships would also learn that lesson.

Hear, hear!

My Lords, in moving Amendment 204, I also speak to Amendments 205, 209 and 210. As I have reported, I and others have had the opportunity in recent weeks to discuss with the Minister and various officials within the department my ongoing concerns in response to the various amendments tabled in my name. These discussions have proven to be most fruitful and I thank the Minister for the characteristic courtesy and diligence with which he has approached these issues.

I am also aware that other discussions have taken place, and continue to do so, between the Bill team and the representatives of Mencap, the Special Educational Consortium, Skill and others who are interested in maximising the opportunities for people with disabilities, including those with a learning disability, to access apprenticeships as a credible and worthwhile pathway to employment and, therefore, full participation in society.

Following these negotiations, I understand that government Ministers are minded to table various amendments on Report. I assure the noble Baroness, Lady Howe, that these amendments will obviously be scrutinised on Report. They should meet many of the concerns referred to in the various amendments tabled in my name and those of other noble Lords. Any further assurances that the Minister may be able to make on other matters would be most welcome. I beg to move.

With the indulgence of the Committee, I was hoping to save a bit of time. I am pleased that, with the extensive discussions that have taken place with the Special Educational Consortium, Skill, Mencap and other key interest groups, and the progress that has been made, we will bring forward amendments on Report to address these issues. They will enable people with learning difficulties to meet the entry requirements through alternative evidence, rather than the qualifications set out in Clause 93, and may extend the age range of the apprenticeship entitlement up to 25 for people with learning difficulties. In developing those regulations, we will continue to work closely with those key interest groups to ensure that we have criteria that mean that this extension is available to those who genuinely need it without lowering the bar around the entry requirements or the quality of the apprenticeships.

I understand the concern of the noble Lord, Lord Addington, about the timing of these amendments. I hope that he will recognise that it has been essential to have the discussions to which I referred to ensure that we get the amendments right. I hope that, on this basis, the noble Lord will feel able to withdraw his amendment.

I thank the Minister for his comments and for the meetings, but will he also ensure as he goes through this that everything is at least within the spirit of the Disability Discrimination Act? As the Bill is drafted, there may be a legal challenge against it. It has what I, and many people to whom I have spoken, regard as an arbitrary element, although the Minister did not like that term when I used it in discussions with him. The Government have to achieve certain levels but have not achieved the spirit that we have established in many arguments on disability and education over many years in this House, even with changes of government, which is that the system must be flexible to include people. If the noble Lord can give me an assurance now that this will be taken into account, it would increase the speed with which we progress on Report because, unusually for an education Bill, this Bill seems to have missed this issue. I just hope that the Minister can give us an assurance that the Government really will look at it for the rest of the Bill.

I thank the noble Lord, Lord Addington, for his comment. We will probably have to agree to disagree about my not particularly liking the use of the word “arbitrary” because I regard basic literacy and numeracy as of vital importance. Of course we want to ensure that we are true to the spirit of the Disability Discrimination Act. This is a new provision, not mirrored elsewhere. However, regulations will ensure that we meet the public sector disability equality duty under Section 49A of the Disability Discrimination Act. It is in line with the Education and Skills Act 2008, which requires the needs of those with learning difficulties and disabilities to be taken into account.

My Lords, I thank the Minister and the Bill team for their co-operation in this matter. I am most grateful and I look forward to reading these amendments when they are forthcoming. I hope that we will be able to agree them. With those good wishes, I beg leave to withdraw the amendment.

My Lords, the entitlement that is currently proposed is really quite limited. For somebody without level 2 qualifications, it guarantees that they will have access only to a level 2 apprenticeship, but to nothing further beyond that. That would be the equivalent, on the academic route, of guaranteeing somebody without GCSEs the entitlement to study for GCSE grades A to C, for example, but it would not guarantee them, if they were successful, the right to progress to A-levels or diplomas. We would never consider a block to progression of that kind along the full-time route and we should be equally unwilling to consider a block to progression along the part-time route. Therefore, we urge that anyone who completes a level 2 apprenticeship before their 19th birthday should be entitled to progress to a level 3 apprenticeship. If their existing employer did not want to provide one, the National Apprenticeship Service would have to help them to find a place elsewhere.

As I have said, this is a matter of fairness, but it is also much more important economically as a matter of national efficiency. On the continent, the standard apprenticeship is taken at level 3. Unfortunately, in our country the most common apprenticeship for young people ends at level 2. The major reason for that is the low rate of progression by those who get level 2 to level 3. When the Economic Affairs Committee of this House reported two years ago, only 20 per cent of those who completed level 2 were progressing to level 3. That is just not good enough. We have to build in an automatic entitlement to progression, for the sake of both fairness and efficiency. We strongly urge the Government to accept our amendment.

My Lords, in the interests of brevity I will say simply that, for all the reasons that the noble Lord has given, we on these Benches support the amendment.

My Lords, I would like just to say, also in the interests of brevity, that I thoroughly support the amendment. Indeed, it speaks for itself that it should be adopted by the Government. I hope that they will do just that.

My Lords, I agree with my noble friend Lord Layard that progression from a level 2 to a level 3 apprenticeship is important. I disagree slightly with my noble friend that the entitlement is quite limited, given that he said in the previous debate that it was very ambitious. It is not often that I feel that I have to draw his attention to something like this, but it cannot be quite limited and very ambitious at the same time. I believe—and I think that the Committee believes, given the comments that have been made on all sides—that our ambitions, as defined in the Bill, are ones that will take a great deal of effort to achieve.

In many industries, such as construction and engineering, the progression happens naturally, as apprentices usually continue the level 3 element of their training on completion of their level 2 apprenticeship. We are working to ensure that this is the norm across all sectors. First, the Government will fully fund the training costs of level 3 learning for all apprentices who start their learning before the age of 19. Secondly, the guidance to the specification of apprenticeship standards in England will emphasise the importance of progression through the various levels of apprenticeship and routes into and out of apprenticeships. Thirdly, the National Apprenticeship Service will work with those sectors without a strong track record of progression from level 2 to level 3 to identify specific barriers to progression and actions to overcome these. There are such sectors; there is no doubt about that. We also hope that, through this legislation, the right to request time to train will have an impact. Fourthly, following discussions with the noble Lord, Lord Layard, we will ensure that the apprenticeship agreement has a prescribed term that requires discussions to encourage progression from level 2 to a level 3 apprenticeship.

Ultimately, unfortunately, this comes down to matter of priorities. I absolutely agree that we should seek to increase progression rates still further, but now we are clear that our focus has to be on ensuring the availability of a first apprenticeship place. I remind noble Lords that this year we are spending nearly £1 billion on apprenticeships. It is a question of finite resources and, we believe, of encouraging both employers and learners. We are making progress. There is no room for complacency but, on this basis, I hope that my noble friend may be persuaded to withdraw the amendment.

My Lords, I am most grateful to the Minister for his reply. It is important to put this in some perspective. It would not come into force for another six years or so. It would then set the pattern for our system of education for this group of young people for at least 10 or 20 years, so we should be willing to raise our sights. I am not completely happy with the reply. Perhaps we will have to come back to this on Report. In the mean time, I beg leave to withdraw the amendment.

My Lords, I would just like to ask: why the Secretary of State and not Ofqual?

My Lords, I can offer some clarification here. Clause 94 mirrors the interpretation of qualification levels in Part 1 of the Education and Skills Act 2008, which was passed before Ofqual was established. Obviously, as the Bill progresses through Parliament, Ofqual is being established. Perhaps we should write to the noble Lord with a further explanation of our intentions before Report stage because it seems to me—and possibly to the noble Lord—that maybe the clause should say Ofqual.

With this amendment we go slightly away from the main thrust of most of the discussion. The Bill is entitled Apprenticeships, Skills, Children and Learning Bill, and I consider that sporting activity is covered under skills, children and learning. The Government should provide greater financial resources for sporting activity given that they are encouraging everybody to be more active and they have a target to encourage 2 million people to take up exercise or sport. Further, if you train people properly and they know what they are doing, they tend to enjoy what they are doing more and tend to continue doing it. They also have a skill base that can be reignited later in life. That is why I suggest that the wording of Amendment 211 should be added to Clause 98. If we make resources available to the volunteers who are achieving a government objective with no financial reward, we shall save money in the long term, certainly as regards health costs. In addition, such a measure would assist the Government to achieve one of their immediate objectives.

The Government may well tell us that money is being put into other areas, but I am talking about volunteers, who comprise most of the grass-roots participation. Those who volunteer their services in community amateur sports clubs are not the only group in this regard but they have a legal identity and we know what we are dealing with. It is a containable group and constitutes a way into this issue. This is a probing amendment to see whether two parts of Government can join together to implement the designs of Government as a whole. I look forward to hearing what the Minister says. I beg to move.

My Lords, I know that this is an issue in which the noble Lord has taken considerable interest in this and previous debates, and it is one to which the Government are committed.

Coaches play a critical role in Sport England’s strategy to build a world-leading community sport system and getting 1 million more adults doing more sport by 2012-13. Sport England is making available £480 million to national governing bodies of sport over 2009-13 to drive the development of their sports to deliver these goals. Of this, at least £100 million will be invested in coaching. While the bulk of funding comes from Sport England, I confirm that the Skills Funding Agency will be able to fund sports coaches where appropriate. Clause 84 allows for the chief executive of Skills Funding to provide financial support to any adult receiving, or proposing to receive, education or training falling within the chief executive’s remit, which might include those being trained as sports coaches, whether they are volunteers or not.

Volunteers within community amateur sports clubs may be eligible for some funding from the Skills Funding Agency towards the costs of training, though it is likely that they would also have to make a contribution. However, some learners will be able to have access to full fee remission. They will include those on means-tested benefits, and those who are eligible for the adult entitlements as set out in Clauses 85, 86, 87 and Schedule 5.

We place enormous store on the importance of more informal learning for personal, family and community development. We want more individuals to participate in learning generally, and for colleges and others to continue to provide a wide range of opportunities for informal learning, including opportunities for volunteering.

While I recognise the particular contribution of volunteers at community amateur sports clubs, I hope the noble Lord will recognise that it would be impractical to list all categories of learners who may be eligible for funding on the face of the Bill. I hope that, on that basis, the noble Lord will feel able to withdraw the amendment.

My Lords, I thank the Minister for that reply, which was slightly more helpful than I had expected, but nowhere near as helpful as I had hoped. I could wax long about the importance of volunteers in sport but I think that noble Lords’ attention would wane if I did so. The Government have said that funding routes are available in this regard. However, it is evident that volunteer coaches do not have a grab-hold on this system of funding. I do not know whether that issue will be followed up in the Bill but I thank the Minister for clarifying the position. I beg leave to withdraw the amendment.

My Lords, I declare an interest, as I did yesterday, in that I am married to a lady who runs a prisons education charity. I looked in the Explanatory Memorandum for an amplification of Clause 113 and see that it says exactly the same words as the clause, near enough. Can the Minister amplify the intentions here? It seems to me that it might mark real progress in the relationship between education and prisons.

I hope that I can amplify as requested. I know I hardly need make the point that prisoners are among the most disengaged and disadvantaged learners in the country. It is clear from exchanges yesterday and earlier this week on the education of young offenders that the Committee is well aware of the importance of the offender learning agenda. I know, therefore, that there is broad support for the Government’s position that addressing learning needs in order to develop the skills prisoners need to get and retain employment on release is very important.

The offender learning agenda remains a key component of the Government’s reducing reoffending strategy. The Bill places a duty on the chief executive of Skills Funding to consider the needs of prisoners as an integral part of his or her role. This is the first time that a piece of education legislation has set out the duties for the mainstream education delivery services—the local education authorities for those held in youth detention accommodation and the chief executive of Skills Funding for those in adult detention—in meeting the learning needs of offenders since that responsibility passed from the Home Office to the predecessor of our two departments in 2001.

This is an important though brief clause that reinforces the critical importance of the Skills Funding Agency in maintaining a focus on the skills agenda for adult learners in prison and continuing to deliver the improved service to which the noble Lord, Lord Lucas, referred yesterday.

My Lords, I take this opportunity to come back to the question that we debated yesterday on the meaning of the wording in Clause 117(4), which duplicates that in Clauses 73, 74 and Clause 59(10).

The question here is where that wording leaves the line to be drawn. I have had some very useful discussions with members of the team since last night, and my understanding is that their intention is to leave the line fuzzy and, as it were, to be determined in each case, but that it is clearly out of court for a Minister to try to direct how an individual institution should be funded. It would be clearly allowable that the Minister should direct, say, that additional funding was given to sixth-form colleges generally and that the interpretation of any particular instruction would have to come down to the particular circumstances, because clearly no exact rule is specified in the clause. The line, in terms of the wording, could come anywhere. It is important to establish on the Floor of the House what the Government’s intention is and how in practice the line should be drawn.

My Lords, the key is whether the direction would affect funding to a particular college. If it would, it is not permitted under Clause 117(4). So a direction to give more money to a named college would clearly not be permitted, nor would a direction to give money to a particular class of colleges. If there is only one college in the class, for example a direction to give more money to FE colleges in Winchester, which was quoted previously, a more general direction—a direction to allocate more money to skills training in a particular region—perhaps would be okay, because it would not necessarily affect the funding to any individual college or individual.

This subsection was intended to be a check on the Secretary of State to make him or her consider whether a direction is really about setting objectives for the chief executive as set out in subsection (1), or whether it is aimed at determining the levels of funding for particular providers. If a direction is framed in too specific a way, it may be vulnerable to challenge in the courts.

My Lords, this amendment would restrict the data-sharing powers introduced in the Bill in a manner that would help ensure the security and privacy of personal data.

Clause 119 allows the bodies replacing the Learning and Skills Council—the chief executive of the Skills Funding Agency, the YPLA, a designated person, a member of the chief executive’s staff, a member of staff of a designated person, or a person providing services to any person out of those—to share information with each other and with a local education authority or a person providing services to a local education authority. It does not extend local authorities’ power to share information with each other. This latter was a concession, for which we are grateful.

Nevertheless, we are concerned about the safety of private and personal information that can be shared among this very large number of bodies and people. We understand that it may sometimes be necessary to share information across different bodies that are responsible for different areas of the same service. This would seem to be an unfortunate consequence of the Government’s desire to introduce more quangos. Perhaps the Minister could indulge the Committee by providing a few examples of times when this would be necessary. Is this to aid the day-to-day workings of these new bodies, or is it to analyse the effectiveness of the Government’s policies as suggested in another place? If it is the latter, surely the heading,

“Sharing of information for education and training purposes”,

is somewhat misleading.

Perhaps the Minister will inform us that the data will need to be shared to help or to secure suitable education and training. We understand that this may be the case. However, in such an instance, does the Minister agree that it would still be more appropriate to ask permission of the individual? Given this Government’s appalling record on data safety, this would be a fitting amendment. Furthermore, as it is rather a standard safety device, it would appear to be difficult for the Minister to object to it. I beg to move.

My Lords, we support the amendment. The clause refers to a great many people who share the data, and in line with people having an entitlement to know who is getting their personal data and who it is being shared with, this amendment seems entirely sensible.

My Lords, I am very glad that this amendment has come forward. I hope, yet again, that the position of those in custody is not forgotten. Not only is there bad passage of information between different institutions in the custodial system, but it is terribly important, considering that something may have been started which needs to be carried on after people have left custody, that the information is available to those who are responsible for carrying out that transition practice.

My Lords, I quite agree with what the noble Lord, Lord Ramsbotham, said. I have not located the part of the Bill that allows that to happen. I was looking at the other end of things on page 32, at proposed new Section 562E. My understanding is that the clause we are looking at does not affect page 32, because this part has sufficient powers within itself to allow the transfer of information inwards towards the Prison Service. Reading it in detail, my concern is that the right it gives is to ask information of a local authority. The host authority or those involved with the education of the prisoner can get at the relevant local authority to find out information that it has, but the local authority has no right to go back to the school or other educational establishment that has been providing education for the prisoner before then. How does the clause we are looking at now affect that transfer between the school and the local authority? How do the mechanisms provided in proposed new Section 562E in conjunction with the clause we are looking at now work to allow for efficient transfer of information? I do not need an answer now if it is not immediately to hand.

My Lords, officials in the Information Commissioner’s Office have reviewed the department’s plans for how data sharing will operate and are reassured that we are committed to developing a reasonable and proportionate system. In addition, they have confirmed that, as currently drafted, they can see nothing that is likely to cause concern, and they will continue to work with us as we move towards implementation and beyond.

Clause 119 does not provide any new data collection powers nor introduce any additional databases. It simply changes the partners with whom information is shared. The information is both for operational purposes and analysis, and it will help to secure appropriate training, which was one of the concerns expressed by the noble Baroness, Lady Verma.

Introducing consent as a precondition of this data sharing would result in agencies having incomplete data for planning and funding purposes. It would also add enormously to the costs. We have been assured by the Information Commissioner that we are doing nothing that undermines individual liberties. All agencies will, as now, operate in accordance with the provisions of the Data Protection Act, which contains the necessary safeguards. In addition, there will be a specific data-sharing protocol, developed in consultation with the Information Commissioner, covering what and how sharing of information will take place between these agencies. As is already required by the Data Protection Act, all information gathered from learners will operate under a fair processing notice, setting out for learners who will see their information and why. Under current arrangements, where appropriate—for example in relation to the learner being contacted for surveys—the learner’s consent is sought. This will continue under the new arrangements.

I also want to answer the question about transfer of information on young offenders. I am assured that they are covered by Part 2. If we have not picked up every aspect of the concern of the noble Lord, Lord Lucas, we will respond in writing. That should also address the concern of the noble Lord, Lord Ramsbotham. With those assurances, I hope that the amendment can be withdrawn.

My Lords, I thank all noble Lords for their contributions. I have listened carefully to the Minister, but I am not sure that he has satisfied the concerns of the House. I will read his response very carefully in Hansard. For now, I beg leave to withdraw the amendment.

That the draft order laid before the House on 8 July be approved.

Relevant Document: 21st Report from the Joint Committee on Statutory Instruments.

My Lords, I shall speak also to the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. I hope that it will be for the convenience of the House that these two orders are debated together.

The orders implement codes of practice which govern the use of the adult conditional caution and the youth conditional caution. I have asked for these orders to be debated together because of the similarities between the two schemes. I will speak first about the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. Its sole purpose is to implement the revised code of practice for conditional cautioning, which will come into force the day after the order comes into force.

Part 3 of the Criminal Justice Act 2003 allows the Crown Prosecution Service and other specified prosecuting authorities to administer a conditional caution in certain circumstances. The basic requirements are that the offender is an adult—18 or over—admits the offence, and that there is sufficient evidence to prosecute. It is also necessary that the offender should agree to the caution. Where it is possible to set appropriate conditions, the public interest may be met more effectively by the offender carrying them out than by being prosecuted. If the offender fails to comply with the conditions he may be prosecuted for the original offence.

Conditional cautioning has been available for adults throughout England and Wales since March 2008. It is currently operating under a code of practice approved by Parliament in 2004. We now want to update that code to provide for amendments to the Criminal Justice Act 2003 made by the Police and Justice Act 2006. These amendments allow for punitive conditions to be attached to a conditional caution—specifically a financial penalty. We have also taken the opportunity to make further amendments in the light of operating experience and to improve the structure and readability of the code.

The Secretary of State is required to publish the code of practice in draft, and this was done as long ago as 6 March 2007. Public consultation took place between then and 29 May 2007; 42 responses were received. Further revisions to the draft code were made in light of these responses. The revised code was approved by the Justice Secretary, Home Secretary and Attorney-General, and the draft order was laid before Parliament in July this year.

The key changes to the revised code of practice are: first, the extension of the conditional cautioning scheme to allow for a punitive condition, specifically a financial penalty, to be attached to a caution; secondly, guidance on the power of arrest and detention; thirdly, removal of the requirement for an admission to be made in a PACE interview before a conditional caution can be administered; and fourthly, additional safeguards to ensure that this disposal is used appropriately.

The House will have noted the delay between the consultation exercise and the laying of the draft order introducing it. Following the machinery of government changes in 2007 we decided to delay the introduction of a revised code of practice until national rollout of the conditional caution had been completed in March 2008. The subsequent timetable has taken into account our decision to test the financial penalty for the adult conditional caution at the same time and in the same areas as the new youth conditional caution.

If the order implementing the revised code is approved by Parliament, it will be implemented across England and Wales next month. The key new element—the financial penalty condition—will be available in only five specified areas: Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk. This was set out in relevant commencement orders for Section 17 of the Police and Justice Act 2006. Following a review of the pilot, a decision on national implementation of the financial penalty condition will be taken.

The purpose of the other order is to implement the code of practice for the youth conditional caution. The code of practice will come into force the day after the order comes into force. Section 48 of the Criminal Justice and Immigration Act 2008 extended the use of conditional cautions to young people aged between 10 and 17 by amending the Crime and Disorder Act 1998, although we agreed during the passage of the legislation that the youth conditional caution would be introduced in stages, beginning with its use for 16 to 17 year-olds.

The youth conditional caution has been designed to operate in a way consistent with the adult scheme. However, there are by necessity a number of differences. First, as is the case with other out-of-court disposals for young people, a youth conditional caution will not be available to a young person who has previously been convicted of an offence. There is no such restriction for the adult scheme. Secondly, the youth code sets out the role of the youth offending team—the YOT—in advising on the appropriateness of a conditional caution and overseeing the completion of the conditions. There is no equivalent in the code for the adult conditional caution. Thirdly, punitive unpaid work is available for the youth conditional caution, as the facility for this is established, and it allows a punitive condition to be put in place and a conditional caution offered in the likely event that the young person might not have the ability to pay a financial penalty. Fourthly, the adult code allows for a condition to be attached to a caution requiring the offender to pay for the course he is attending. A young offender cannot be required to meet the costs of a course he is attending as a condition of a caution.

The Secretary of State is required to publish in draft the code for the youth conditional caution, and this was done early in March this year. Public consultation took place between then and the end of May; 32 responses were received. As a result of the consultation a number of detailed amendments were made to the code to remove perceived ambiguities. The code was subsequently agreed by the relevant Ministers and draft orders were laid in July.

If the order implementing the code is approved by Parliament, we will pilot the youth conditional caution in the same areas as the financial penalty condition for adults. A decision about national implementation will then be taken. I commend the draft statutory instruments to noble Lords.

My Lords, I thank the Minister for explaining, with his usual clarity, the details of these orders. I was privileged to be a magistrate for more than 30 years, but I was never involved with youth justice.

One code of practice before us deals with cautions for 16 and 17 year-olds. Youth crime today is a symptom of a broken society, and any approach to fix it must address prevention as well as appropriate punishment for any offence. Cautions have traditionally been an alternative to punishment, and used to encourage a person not to reoffend. Conditional cautions, however, tag on to the caution what amounts to a punishment. Would a better approach not be to have cautions on the one hand, and punishments administered by a court on the other?

There is not enough room in the justice system to deal with crime effectively, as so many magistrates’ courts have been closing—at the rate of seven a year since 1997. Is the risk with conditional cautions that we further reduce access to the courts, while at the same time restricting the efficacy of interventions prior to punishment? Could the end result of the process be to increase the pressure on the criminal justice system by funnelling young people into it? The point made by my honourable friend the Member for Enfield Southgate, David Burrowes, is worth reiterating. He said:

“The fast track to punishment does not necessarily lead to a fast track to justice”.—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 22/11/07; col. 477.]

A youth conditional caution can be given only where the youth has not previously been convicted of an offence. However, the adult conditional caution is available at any point in an offender’s career. Therefore, an 18 year-old young adult with a single previous conviction might be given a conditional caution in circumstances where the criteria for a 17 year-old would require prosecution. Will the Minister explain the inconsistency between the youth and adult conditional caution schemes? The Government are willing to resort to conditional cautions where they are not appropriate, and deny people, both under and over 18, access to justice. However, cautions are also used where they are not appropriate because they are not strong or strict enough.

There is a caution culture in the country that gets the balance wrong. Earlier this year, it was revealed that four in 10 serious offenders are being let off with a caution. The number of cautions given to violent criminals has risen by 82 per cent in five years. Does the Minister agree with my party that anyone carrying a knife without a reasonable excuse should expect to be prosecuted rather than to receive a caution? Does he further agree that those convicted of carrying a knife should expect to receive a custodial sentence? The Government use cautions to pre-empt justice. This can be too strict for some and too lenient for others.

Conditional cautions can also be used for multiple offences that individually would not result in the offender being sent to court. This sends the message that, once you have committed a crime, you might as well commit others of a similar nature, because the punishment will not change. Is this what the Government mean by being tough on crime?

It has emerged recently that inaccuracies with Ministry of Justice data are preventing the release of the latest offender management statistics. Does this mean that the Minister is unable to provide the House with up-to-date figures on reoffending rates among those given conditional cautions, or is he able to give them to us today?

The Government have operated a managerial, centrally driven approach to justice, which has failed young people, both as victims and offenders. Central Government have moved the deckchairs of responsibility for youth justice between the Ministry of Justice, the Home Office and the Department for Children, Schools and Families. Meanwhile, the youth justice system, which should be directed primarily by local communities, has been sinking. We on this side of the House have argued for greater responsibility for the custodial budget to be devolved to local communities, so that local decisions can be made about the numbers in custody. The Government should pause before another experiment with the justice system fails the British people. The future of our country depends on the young people of today. I believe that it behoves all of us to ensure that we have a justice system that is seen as fair and responsible.

My Lords, I, too, thank the Minister for his statement in support of these orders. In 2003, we on these Benches welcomed the introduction of the conditional caution, which at the time could contain conditions relating to rehabilitation and reparation. My noble friend Lord Dholakia spoke in favour of it at the time. However, in 2006, we opposed the introduction of conditions that were punitive, and also the provision that the police could arrest a person on suspicion of non-compliance with the conditions that had been made.

The basic objection in principle to the punitive element is that it puts into the hand of the prosecutor the job of being both judge and jury as well as prosecutor. Where we have fixed-penalty fines, the amount of the fines, which can be handed out by police officers for various minor offences, is fixed by Parliament, or by regulations that have gone through Parliament. However, when it comes to the punitive condition that is now to be attached to these cautions, the onus passes to the prosecutor to decide all sorts of things. He can decide the amount of the fine, for example. He can decide what amount is to be paid, when and how. When it comes to youth justice, he decides much more than that—there is quite a menu for him to pick from. He can be involved in choosing his conditions. The guide says:

“Conditions may be included to reflect and secure the interests of the victim and neighbourhood or community (for example by requiring the youth to stay away from a specific area)”.

There is reference to opportunities to provide unpaid work that benefits the community and the use of a,

“financial penalty condition … to punish the youth and deter future offending”.

We now have a system whereby the prosecutor rather than a court determines matters of discretion—the type and amount of punishment. The Magistrates’ Association has written to a number of us—we may hear more about this—expressing opposition to the idea that the principle that has governed our justice system until now, that a court with independent judges or magistrates should determine punishment, should now be abandoned so that a prosecutor can do what he likes, within the limits that the Bill sets down. A very large discretion is given to the prosecutor to determine how to punish a particular person. As I have already said, when you add to that the power of the police to arrest someone and hold them in custody merely on suspicion of non-compliance with conditions which a prosecutor, not a court, has set down, it can be seen how far the principle has been breached.

Therefore, we do not welcome the orders. We think that the provisions of the 2006 Act were wrong. We always agreed with the provisions of the 2003 Act which kept people out of prison, although we dislike the idea that people who have a caution should also have a criminal record. Since then, of course, not only previous convictions but a list of cautions that have been administered to a person are produced in court on the conviction and sentencing of that person. The danger is that a person will always be inclined to take a caution, which will avoid him having to stand in front of a court, rather than take a punishment from the court. Therefore, there was a great intrusion of principle in the 2006 Act and we still oppose it.

My Lords, I, too, am grateful to the noble Lord, Lord Bach, for presenting these instruments, but I share the concerns expressed by the noble Baroness, Lady Seccombe, and the noble Lord, Lord Thomas of Gresford. I see there being a risk of injustice. I have read the letter from the Magistrates’ Association and it causes me concern. I agree of course that it is appropriate to use this sort of instrument for minor offences, as long as we can be sure that they are minor offences. However, as the Magistrates’ Association points out, there is very little monitoring of these out-of-court disposals, so we do not know whether they are being applied to minor offences, and the association’s own study indicates that there is wide disparity in their use. These fines do not take account of the means of the offender to pay. As a result, more than 50 per cent of all fines imposed out of court are not paid, so there is the additional disadvantage that magistrates’ courts end up having to tidy up, which produces a drain on their already stretched budget. Can the Minister say what support is being offered to magistrates’ courts to deal with this additional burden?

As the noble Lord, Lord Thomas of Gresford, said, the orders appear to give considerable additional powers to the police. It concerns me that the necessary monitoring is not there to ensure that the provisions are applied in a consistent and just manner to those involved. I look forward to the Minister’s response.

My Lords, I am grateful to the noble Lords who have spoken in this short debate. Our starting point is that the law-abiding majority want to see crimes, no matter how small, dealt with effectively and efficiently, and for a long time cautions have been part of that process. They allow the police to deal swiftly with low-level offending, freeing them up to spend more time on the front line and dedicate more time to more serious offences. They also free up court time for more serious offences.

We believe that conditional cautions can have a positive effect in addressing the reasons behind some offences, perhaps particularly anti-social behaviour. The use of rehabilitative conditions, such as attending an alcohol awareness course, combined with a financial penalty, can help to tackle some of the root causes of the crime as well as delivering a fitting penalty. The Criminal Justice Act places no restrictions on the types of offences for which conditional cautions may be administered but we have made it clear, as has the Director of Public Prosecutions in his guidance, that they should be used only for low-level offending. Indeed, his guidance restricts their use to summary and certain either-way offences. A conditional caution cannot be administered for indictable-only offences, hate crimes, offences involving domestic violence and—here I am replying to the noble Baroness—offences using knives or offensive weapons. Youth conditional cautions put in place rigorous conditions to address bad behaviour while ensuring that the person admits his wrongdoing and makes amends to the local community by repairing damage that may have been caused, paying compensation or having restrictions placed on his movements.

The noble Baroness spoke about a broken society and crime generally. I am sure that I do not have to remind her and the House that, for the first time in living memory and beyond, this is the first Government to have presided over a considerable fall in the number of crimes that have been committed. That is a proud record and contrasts clearly with the record of the previous Government.

Before coming on to financial penalties, perhaps I may say that the point about youth cautions—this is something that I should have thought would be generally approved of across the House—is that they keep young people away from being prosecuted. However, you cannot keep young people away from being prosecuted for ever, and there is, as noble Lords will know, a hierarchy in youth offending. The reasons for our approach of saying that you could not get a conditional caution if you were a youth who already had a conviction were explained fully when the Bill was debated. The short answer is that there are various out-of-court disposals for a young person. There is a reprimand or a warning and a youth restorative disposal, which are not available for adults. The system is essentially hierarchical. Once the matter is so serious that a young person is convicted before a court, the other, less serious out-of-court disposals should, in our view, no longer be used. Such a system does not apply to adults.

A criticism has been made by the noble Lord, Lord Thomas of Gresford, that the new financial penalty, which will be piloted rather than brought in across the country, is somehow a step too far for prosecutors to be able to award. There has been no youth conditional caution until now, but for adults that same prosecutor has been able to make rehabilitative orders, which is something that the court would normally do, or reparative orders, which in some ways are punitive, such as payments of compensation, letters of apology, reparative unpaid work, restorative justice, and so on. All those matters are under the original conditional caution that the noble Lord said his party supported in the 2003 Bill. The prosecution is able to impose them, as it were, on someone prepared to accept a conditional caution. The noble Lord’s party was happy that the prosecutor should do that. It seems that the point beyond which it is not happy is when there is a financial penalty as well. Any defendant can refuse to be cautioned and can ask for his or her day in court. They are entitled to do that, which is an essential safeguard under our system.

There is a limited discretion to set levels of financial penalties. They can be set at either a standard or mitigated level. I have already referred to the point about knives. Conditional cautions are paid or prosecution will follow. Penalty notices have issues with payment. Means are taken into account unlike what happens when there is a penalty notice in its stead.

There are virtues in having conditional cautions as they prevent young people being prosecuted for offences. We do not want them to be prosecuted unless it is necessary. The youth conditional caution is not a new power of summary punishment, representing a fundamental constitutional change. We know that the police already issue fixed-penalty notices and other on-the-spot fines to offenders either on the street or at the police station. Others who accept these notices have to pay the set amounts required and are automatically diverted from prosecution in the courts when they do so. This is a logical extension of powers that already exist and which work pretty well.

Of course, there will be many cases that can be dealt with only by the courts and, as I have said, the offender always retains the option to be prosecuted by the court rather than accept a caution. We believe that adult conditional cautions have worked pretty well so far. Parliament was happy that a youth conditional caution was one of the arrows that could be used to try to divert young people away from further crime. On that basis, I invite the House to accept these statutory instruments.

The Minister has not referred to the monitoring that was mentioned by the noble Earl, nor has he referred to publicity. There is a public element to this. These conditional cautions will be issued by the prosecutor without any element of publicity, which is possibly one of their attractions, as opposed to going to court. Does the Minister think that anything can be done in that regard?

I do not think that it is possible to do anything in terms of young people, and I am not sure that the noble Earl would want that. We are prevented from naming the young person involved. All we can say is that “a young person” received a youth conditional caution, which would not assist anyone. For adults, I suppose that it would be possible to publish the names of people who had not been prosecuted but who were subject to a conditional caution. I understand that they would be rehabilitated within three months of that caution in any event. Again, I suppose that it would be possible, in theory at least, for such a caution to be mentioned in a local newspaper, but I am not sure that that is what we want.

I am concerned not so much with publicity but more with monitoring to ensure that there is some parity in their use across the country. That issue was raised by the Magistrates’ Association in its letter.

I understand that point. There should be parity in how these cautions are implemented and there is no reason to believe that there is not. There are strict conditions on what can be awarded, in terms of financial penalty at least, against someone who is subject to a conditional caution. I think the noble Lord is asking whether some areas use these rather more than others. I do not have information but will write to all those who have spoken in the debate if I can get some further information on these issues.

With regard to the release of the latest offender management statistics, is there a problem? Can the Minister give us any further information today?

I am sorry not to have replied to the noble Baroness earlier on that point. I do not know whether there is a problem, and neither do my officials. In the letter that I will be writing, I shall try to give the latest information. I beg to move.

Motion agreed.

That the draft order laid before the House on 8 July be approved.

Relevant Document: 21st Report from the Joint Committee on Statutory Instruments.

My Lords, Amendments 216 and 218 are derived from concerns raised by the Association of Colleges in relation to Part 6, which gives separate legal status to the 93 sixth-form colleges and places them under the control of the DCSF. Those concerns arise from the fact that the clause will require sixth-form colleges to have a closer relationship with their local authorities than is proposed for other colleges.

Perhaps your Lordships will forgive me if I deal with Amendment 218 before Amendment 216. Amendment 218 would mean that the responsible local education authority could use its proposed power to appoint a member to a governing body of a sixth-form college after,

“consultation with the said governing body”.

We believe that that would allow sixth-form colleges to retain the independence and autonomy that have been integral to their success. We are concerned that, without that provision, sixth-form colleges may be encouraged to become overly centred on the needs of the local authority and the so-called home centre. We suggest that that would be damaging, because part of the success of sixth-form colleges is due to their ability to recruit across local authority boundaries and become centres of excellence. Although the Bill does not prevent that, we are concerned that too many ties to the local authority may result in the sixth-form college becoming home-centric and reduce its freedom and desire to recruit from further afield.

Amendment 216 is in the same vein of flexibility. New Section 33D(3) in Schedule 8 means that an application to convert a sixth-form college corporation into a further education corporation cannot be made by the governing body of the relevant body for a period of five years after the body has been declared a sixth-form college corporation. Does the Minister agree that that is somewhat restrictive? Does she not agree with the assessment of the Association of Colleges that a period of two years might be more suitable? We suggest that that would allow much more flexibility, which is especially important given that much of the reason behind the success of those institutions is their ability to innovate, adapt and utilise the flexibility that their independence gives them. We think that it is important to nurture those traits, which help to develop centres of excellence, not constrain them. I beg to move.

My Lords, we have some reservations about Amendment 216. We recognise that a sixth-form corporation, as specified in new Section 33E, may have much the same provision as an FE college, so in many cases the conversion may be straightforward. However, two years is a very short time in the life of an academic establishment to test the market and to prepare for and implement organisational and institutional changes. Five years seems a reasonable timescale. As for the governors, one would hope that there would be consultation in every case between the governing board and the LEA. The LEA is proposing to appoint only one person to the board, so we agree that consultation would be desirable, but the Bill could stand as it is drafted.

My Lords, I start my brief remarks by saying that we would like to consider Amendment 218 and to accept Amendment 216, so that those who need to prepare can do so. I am grateful for the interest of the noble Lord, Lord De Mauley, in the issue and am pleased to see that there is agreement around the House, taking into account our discussions earlier in Committee, about the strong and distinctive contribution that our sixth-form colleges make in this country. This is a great opportunity for us to put on record the tremendous work that they do.

The scrutiny that the amendments have prompted has been extremely valuable in challenging some of our initial assumptions. As we have heard, Amendment 218 would amend new Section 56F, which will give local authorities the power to appoint one or two additional governors to the governing body of a sixth-form college. That is a power that the Learning and Skills Council currently holds. It has used the powers to appoint 51 governors to 33 further education colleges—but always, importantly, as the noble Baroness, Lady Garden, commented, with the agreement of the institution. I recognise the importance of consultation, especially in such an important matter, so I am happy to reflect further on whether a local authority should be required to consult the governing body of a sixth-form college before making an appointment and will return to that on Report.

As I said, I am also happy to accept Amendment 216, which will reduce the number of years before redesignation can occur from five to two. In response to the noble Baroness, Lady Garden, the point is that redesignation can occur after two years; it does not mean that it must. I note her comments about the need for experience to bed in before a college makes a decision, but it is an interesting proposition to have a two-year rather than a five-year limit. Still, we maintain that the designation process should not destabilise the college sector.

This short debate has been helpful and important. We know that the sixth-form colleges are broadly supportive of the new arrangements. They believe that giving local authorities, which are primarily responsible for the strategic direction of schools, a major responsibility for the strategic direction of colleges will promote coherence. That view has been voiced by the Sixth Form Colleges’ Forum. With that, I am optimistic that noble Lords will accept my approach.

My Lords, I thank the noble Baroness, Lady Garden, for her contribution. Noble Lords will be unsurprised to hear that I am even more grateful to the Minister for her gracious words in accepting Amendment 216 and for saying that she will think further about Amendment 218. We look forward to what she comes up with on Report.

My Lords, paragraph 8 of Schedule 8 is five pages long so, if it were removed, it might reduce the Bill a bit. It sets out new powers for local authorities and the Young People’s Learning Agency to enable them to intervene in the business of a sixth-form college when it is judged to be failing. This probing amendment would remove all the intervention powers for the YPLA and local authorities.

The Association of Colleges, which represents sixth-form colleges, points out that they are among the most successful institutions within the education sector; the Minister underlined that in her answer in the debate on the previous amendment. Sixth-form colleges produce excellent exam results, often for the most deprived young people and in the most disadvantaged areas. This is demonstrated by the fact that, between October 2006 and January 2009, 81 per cent of the 80 sixth-form colleges inspected by Ofsted received an outstanding or good grade.

Sixth-form colleges therefore have a proven record of high performance, so it is, one hopes, extremely unlikely that any sixth-form college will fall victim to the circumstances listed in subsection (2) of proposed new Section 56E of the Further and Higher Education Act 1992. New Section 56E(2)(d) states that a local authority may intervene if,

“the sixth form college is performing significantly less well than it might in all the circumstances reasonably be expected to perform, or is failing or likely to fail to give an accepted standard of education or training”.

This wording reflects the wording that will apply to the Skills Funding Agency’s intervention powers in relation to further education colleges. It would therefore be useful if the Minister could clarify whether the SFA and local authorities are using identical criteria when they determine whether to intervene. How will these criteria relate to those that may be used when local authorities assess the performance of school sixth forms? All three types of institutions will be educating the same age group, so it seems fair that they should be judged on the same basis before the relatively serious step of intervening in the affairs of an autonomous institution is taken.

As I understand it, when intervening, local authorities will be able to remove all or any of the members of the governing body, appoint new members and give directions to the governing body. New Section 56H also allows the Young People’s Learning Agency the opportunity to intervene in the business of sixth-form colleges and take the same steps. It would be useful if the Minister could clarify when she envisages it would be appropriate for a local authority to intervene and when the YPLA should intervene. If she could produce some illustrations of the sorts of situations that might produce that, it would be helpful. I beg to move.

I should inform the Committee that, if this amendment is agreed to, I cannot call Amendment 218 by reason of pre-emption.

My Lords, it will come as no surprise to the Minister that we share the concerns of the noble Baroness, Lady Howe, about the intervention powers of LEAs and the YPLA in sixth-form colleges. Of course we agree that action must be taken should a sixth-form college’s governing body be responsible for unreasonable action or mismanagement of its affairs. Nevertheless, like the noble Baroness, Lady Howe, our concern is that sixth-form colleges should be allowed to be flexible and independent.

The Association of Colleges has stated that it thinks it imperative for sixth-form colleges to,

“retain their independence and autonomy as these factors have played a major role in their success”.

Does the Minister not accept that the powers of intervention by the LEA and the YPLA may operate to reduce the flexibility and independence of sixth-form colleges? As I said on the previous group of amendments, it is important to ensure that the possible influence of the LEA and/or the YPLA must not mean that sixth-form colleges become overly centred on their immediate locality. Part of the reason for the success of these colleges is that they can attract students from far and wide across the boundaries of the LEA. Given that resources are finite, we share the colleges’ concern that the powers awarded to the LEA by the Bill may lead to sixth-form colleges becoming more limited in their scope and therefore reduce the level of specialisation that has helped to make them such a success.

Paragraph 8 of Schedule 8 appears effectively to give LEAs the authority to manage the performance of sixth-form colleges and, therefore, interfere when they consider necessary. Further powers of intervention are awarded to the YPLA and, additionally, LEAs and the YPLA are given the right to appoint members to the governing body of a sixth-form college. It would appear that the intention is to confine independent sixth-form colleges quite strictly within the remit of the local authority. I appreciate that there are limitations—for example, the LEA must give notice to the Secretary of State and the YPLA before exercising its powers of intervention—but I hope that the Minister appreciates the concern of the Association of Colleges that the specifics of these powers have yet to be laid out in any detail. I hope very much that she will be able to inform your Lordships exactly how these powers will work and offer reassurance that this will not infringe the independence of sixth-form colleges, which we should be helping to support, rather than limit.

My Lords, having heard what has been said, I support my noble friend on the Front Bench. Education is not my main subject in the House, but having listened to the debate I believe that independence for colleges—Oxford or Cambridge or any of them, although I admit that I happened to be at Cambridge—is crucial. That is the point that my noble friend is making. I do not know anything about education, but it seems terrible that the independence of the universities should be put at risk.

My Lords, my main quarrel is with the wording of new Section 56E(2), which is the test that must be passed before a local authority can intervene. The level has been set quite extraordinarily low. For instance, paragraph (b) states,

“that the sixth form college’s governing body have failed to discharge any duty imposed on them by or for the purposes of any Act”.

In other words, perhaps it has thrown out a newspaper with the general rubbish rather than recycling it. The LEA can have a tiny excuse for taking total control of a college. There is no appeal and no effective reference to any other body because, although the Secretary of State can set out guidance, all the LEA has to do is to have regard to it. We know exactly what that means: look at it and then ignore it. That happens in many other cases of government guidance. A sixth-form college can take no effective action other than to go to law, but, given the immediacy of this, its finances are presumably frozen the moment the LEA steps over the doorstep and it will have no ability to apply for judicial review. It is an extraordinarily low test when it ought to be a high test. Under paragraph (d), for example, it has to be performing significantly less well, which surely should be set in terms of some Ofsted judgment rather than just at the whim of a local education authority officer.

My Lords, I want to make it very clear that the intention here is very much to be in step with the aspirations of sixth-form colleges. As noble Lords will be aware, sixth-form colleges have always had a distinct character and ethos, and I am sure they would argue better than me that concentrating on their core functions of providing 16-to-19 education and training has given them the focus that has allowed them to do tremendously well, as the noble Baroness, Lady Howe, said so eloquently.

I support the noble Baroness’s assertion that it is important that institutions that look after children and young people of the same age are judged on a similar basis. This is what we are trying to achieve; I have already referred to the framework for excellence that is being developed in consultation with BIS, the DCSF and professional partners. The Government respect the independent status of sixth-form colleges, and designation as a sixth-form college will not change that status. As they are now they will remain: as incorporated colleges run by their college corporations, not by the local authority.

These powers of intervention, on which the probing amendment tabled by the noble Baroness, Lady Howe, focuses and would remove, are currently held by the Learning and Skills Council. The LSC has used the powers that are being incorporated in this Bill extremely infrequently, but they remain necessary as a tool of last resort because the implications of those extremely rare cases of educational failure or institutional mismanagement can be dire for the life chances of learners.

We intend to transfer the responsibilities that the Learning and Skills Council now holds for sixth-form colleges to local authorities and the YPLA, with the same safeguards that are in place now. Local authorities will be able to consider intervention only if certain thresholds that are set out in the Bill and to which noble Lords have referred are met. Local authorities will be required to follow a national intervention policy which the YPLA will consult on and publish. The YPLA will also submit that policy to the Secretary of State. If he approves it, it will be laid before both Houses of Parliament.

The noble Baroness, Lady Howe, asked specifically about the criteria that the Skills Funding Agency would use in an intervention. I put on the record that in deciding whether to intervene, criterion D in new Section 56E of Schedule 8 allows the local authority to judge how the sixth-form college is performing. This must take account of the circumstances of the college. The same duties are placed on the Skills Funding Agency in respect of FE colleges that it performance-manages. Therefore, we will apply a consistent approach across all sectors, which I know the noble Baroness is keen to achieve.

The noble Baroness also asked about the role of the YPLA. The YPLA’s powers of intervention, which mirror a local authority’s powers, are, as I have said, a fallback only. The YPLA could intervene in a sixth-form college only when two conditions have been met: first, if it was already intervening in the relevant local authority because the authority was failing in its core duty; and, secondly, if a sixth-form college in that authority was behaving in a way that caused the YPLA to conclude that one of the high-level conditions set out in Schedule 8 has been met. This would be an extremely rare set of circumstances.

The noble Lord, Lord Lucas, was concerned that sixth-form colleges could do nothing in response to this process. There is a detailed process of discussion between the local authorities and sixth-form colleges in subsections (4) to (6) of new Section 56E, which he has already probably found his way to, but, again, in the interests of clarity, I will write to noble Lords in my best handwriting, or even using a typewriter, about how that could work.

I will be absolutely clear: we are advised time and time again that the sixth-form colleges are keen to move forward with this. With the reassurance that I may have been able to offer the Committee, perhaps the noble Baroness will feel able to withdraw her amendment.

I have a couple of points to make about what the Minister has just said. She talked about a detailed process of discussion in subsections (4) and (6). Yes, I would like to hear further from her on that because subsections (4) and (6) appear to be pretty swift and pre-emptory and do not involve discussion but simply, “Right, we’re coming in. Bang”. There seems to be no provision for discussions or timescales in the Bill in front of me.

I would be very happy to say at the Dispatch Box that I would not expect there to be anything other than full and generous discussion with sixth-form colleges, even where a sixth-form college may be struggling. It is important, however you operate in local government, that you deal respectfully with institutions. I am sure that the noble Lord would want that on the record.

My Lords, I entirely agree that that is how it should be; I just do not see it in the Bill. The other thing that I cannot find in the Bill is what the Minister referred to as the national intervention strategy, which she said would be drawn up by the YPLA and with which LEAs would have to comply. Again, I see that nowhere in the Bill. It would be a sensible way of conducting things to have a set of rules that have to be followed and that add a rational gloss to the hair-trigger conditions that are set out in the Bill. I am sure that I have missed pages, but I cannot find it anywhere and I would be grateful if she could point it out to me.

My Lords, it is in new Section 56G, and I have a copy of it here. It is the Learning and Skills Council statutory intervention policy, which states:

“Presented to the Houses of Parliament pursuant to section 56B of the Further and Higher Education Act 1992 (as amended by the Further Education and Training Act 2007)”.

That is a policy statement. I feel it necessary to offer the noble Lord clarification in writing as to where this is updated in the Bill.

My Lords, I am confused because the noble Baroness said that local authorities would have to follow this, but it is just guidance. It is set out in secondary legislation, for instance, that cameras should not be used to enforce parking violations. Local authorities are supposed to have regard to that, but Westminster has 200 such cameras. It is set out in both guidance and regulations that controlled parking zones should be signed in particular ways, but only round 20 per cent of the controlled parking zones in Westminster have even half of the signage correct. Local authorities are used to the process of having to have regard to things. I am sure that they behave themselves, but a lot of the time they totally ignore what is set out in guidance. What I am after is something saying that they shall behave in a certain way rather than that they should have regard to such behaviour. Perhaps the change I am looking for is to amend the end of new Section 56G with wording to the effect that local authorities must “act in accordance with” rather than “have regard to”.

New Section 56G states:

“Intervention policy: sixth form colleges

(1) The YPLA must—

(a) prepare a statement of the policy to be followed by local education authorities with respect to the exercise of their powers under section 56E”,

which is about intervention. It must also,

“(b) keep the statement under review, and

(c) if it considers it appropriate in consequence of a review, prepare a revised statement”.

The new section goes on to give a detailed description of the intervention and how it must be fulfilled.

Yes, my Lords, but in the end we see the words “have regard to” at the end of the section. In other words, local education authorities can completely ignore it and do whatever they want, as long as they have read the guidance first. A minor indiscretion can trigger this power from an LEA’s point of view. An infringement of any Act of Parliament can do it. What sixth-form college does not infringe an Act every year? We all do so. There is so much legislation that you cannot but fall foul of a minor provision in some Act every year. Most of these things one glosses over, puts right or never notices, but any change can trigger the right of LEAs to intervene. Because Section 56G only requires the LEA to “have regard to”, there is nothing to stop them.

The only remit of the Learning and Skills Council was to look after the funding and quality of sixth-form colleges. It had no other interests that might bring it into conflict with the policies being pursued by those colleges.

What I have perhaps not made clear is that we are taking the experience of intervention gathered by the Learning and Skills Council and enacting it here under the new YPLA and SFA set-up.

Yes, I entirely understand the Minister. These powers were appropriate when they were given to a body that could be presumed in all cases to be entirely impartial in the way it acted because of the narrow focus of what it did. Now they are being given to a body with a whole multitude of other interests which it might want to pursue and bring to bear on sixth-form colleges. That is why a straight translation of these provisions will not do. I hope very much that I will have the support of my own and the Liberal Front Benches on this, because we will certainly come back to it on Report.

There has to be a measure of sense imposed on this. Like the Learning and Skills Council, the YPLA is a body that does not have a lot of other interests. If the document prepared by the YPLA was binding on local authorities, I should be completely satisfied, but sixth-form colleges will be left at the mercy of LEAs. The noble Baroness knows that this will not be translated into action, but in many cases into threats of action. Authorities have governors on boards and very quickly they will come to know which sixth-form colleges have made themselves vulnerable under the extraordinarily hair-trigger arrangements set out in the Bill. They will then have the power to say, “You will do exactly what we say or we will come marching in and there is nothing you can do to stop us”. That is not the right basis for a relationship.

There ought to be more distance between the two because local education authorities have so many other fish to fry and reasons to want to intervene in the minutiae of what a sixth-form college is doing—perhaps, as they see it, to make the college work more efficiently with schools or blend with other policies—simply to satisfy the particular political predilections of the local authority at the time. That did not apply to the Learning and Skills Council but does so to all LEAs, and sixth-forms colleges must have protection.

Perhaps I can put this into perspective. First, sixth-form colleges are happy with these proposals, and it might be helpful to make the Committee aware that the Local Government Association has agreed a protocol with the Sixth Form Colleges Forum which includes, among other things, how performance management and intervention powers will operate. We need to bear in mind that a lot of very hardworking and successful sixth-form colleges would like to go ahead and have for the first time in history a special legal status of their own. It would be a great disappointment to them if we were to pour cold water on that little bit of progress.

My Lords, I am doing what my noble friend has suggested, and I am not pouring cold water on anything. I want to illustrate the importance of legislation saying exactly what is meant and exactly the outcome that is wanted. There is an analogous case here. The former Mayor of London was subject to a statutory requirement to consult on extending the area of the congestion zone. He did so and the response was 85 per cent against, but he did it.

My Lords, that is exactly the point. I am not seeking to destroy this provision but, having listened to what the noble Baroness and other noble Lords have said, we should remove from new Section 56G(7) the words “have regard to” and put in something to the effect that LEAs must follow the rules set out in the document so carefully provided by the YPLA. In other words, whatever rules evolve out of the process of discussion under Section 56G and are then agreed by Parliament, should be followed. To rely on a concordat between an unofficial gathering of local authorities and sixth-form colleges to govern these relationships is extraordinary. As I say, I hope very much that I will have the support of both Front Benches when we return to this issue on Report.

My Lords, this probing amendment has produced quite a lot of thought and activity, and I thank all noble Lords who joined in the debate. Who knows, out of it may come some even more concrete proposals than those which the Minister was kind enough to spell out. I am pleased that regard will be given to the autonomy of these institutions. Of course there must be an ultimate fallback position if an institution is failing so that something can be done about it, but given that many of them are doing well, we hope that that will not happen in many cases.

We will all read every single word of what has been said in this debate to see whether further actions should be taken on Report. This was a probing amendment—it was meant to be so because that is what the Association of Colleges wanted it to be—and we shall have to consult and see what its views will be by the time we get to Report. I thank the Minister for the careful consideration that she has given to the amendment.

My Lords, I shall speak also to Amendments 220, 221, 222, 223 and 224A. We now come to consider Ofqual, the new Office of the Chief Regulator of Qualifications and Examinations, which, under this legislation, is now to stand alone purely as a regulator, with the duty to develop the curriculum to move to the QCDA, about which we will speak later.

There is no doubt that there is a need for a strong, expert and independent regulator, who can speak up for learners on the standards and range of qualifications available to them. It is vital also to employers, further and higher education providers and, indeed, the whole economy that we have such a regulator. In Kathleen Tattersall as the new chair we clearly have an expert with experience and determination. We wish her well and thank her for the copy of her letter to MPs during the Committee stage in another place in April this year; it was most helpful.

It is clear that to be successful the chief regulator will need all the help she can get and as little interference as possible. That is the basis of the various groups of amendments that we have tabled which we are about to debate. One of the key duties of the new Ofqual, in Clause 125(4), is to,

“promote public confidence in regulated qualifications and regulated assessment arrangements”.

One glance at the newspapers during August, when the public exam results are published, will make clear the need for someone to do this. Sadly for all those young people and teachers who have worked so hard to achieve their results, every year we have doubts expressed about whether the standards of the various grades achieved are comparable to similar grades last year and the year before, or even the decade before. We also find questions about the assessment arrangements and how rigorous they are. Questions arise about the balance of exams and coursework, multiple choice questions, and the depth of probing of the knowledge found in the exam paper. It is very important that this comes to an end. Candidates for exams have a right to know what they have achieved when they reach certain grades and their potential employers need to know that too.

That is why we believe the independence of Ofqual is so vital. If the Government are allowed to interfere with its work there will always be questions and doubts about whether results have been manipulated to make the politicians who happen to be currently in charge look good. This applies to all parties, not only the current Administration. I say to the Government that what we are trying to achieve by tabling these amendments is for their own good. I am sorry if I sound like their maiden aunt when I say that. The medicine may not taste nice but I can assure them that it will do them good. More importantly, in this global employment world, it will be good for learners and their opportunities in the global marketplace.

Let us look at what the Government are offering to us and see whether it measures up to a strong, expert and independent Ofqual with the power to use good advice wherever it is to be found. First, we need to look at Schedule 9, where the arrangements for the appointment of all the Ofqual personnel are to be found. There we see that the Secretary of State can appoint all the board members and the chief executive; he will also appoint the deputy chair. The chair is a Crown appointment but I doubt if Her Majesty would appoint anyone unless she had been advised who by the Secretary of State. He will also decide the terms and conditions of service initially and approve them subsequently. This is a recipe for political meddling and the placing of people who will do as the Secretary of State wishes. This is not a recipe for a strong, independent organisation.

Of course, initially there is no alternative but to have the first chair appointed by the Crown on the advice of the Government. However, there is no reason why all the members should not also be Crown appointments and subject to the same public appointment scrutiny. That is our Amendment 219.

My Lords, noble Lords will be aware that we have long called for a regulatory body. We welcome the Government’s agreement on this matter and are delighted that they have taken our views on board, bringing forward the Bill to put Ofqual on a statutory footing.

Concerns about the standards of education in our country have occupied reams of newspaper coverage and hours of parental concern, and have caused disquiet in the public sphere. We have therefore called for a body to be in charge of regulating those standards to ensure that, as standards rise, the public can be assured about the quality and rigour of our exam system. We welcome the Government’s agreement on that point and look forward to enshrining Ofqual in legislation.

We believe, however, that there are improvements to be made to the structure of Ofqual in the Bill. That is why we have tabled Amendment 220A, which would ensure that an ordinary member of the Ofqual board should not have any financial or occupational interests that would give rise to a conflict in Ofqual’s objectives. We on these Benches think that it is important to ensure that Ofqual is fully independent of educational bureaucrats.

So that we are not misunderstood, I would like to make it clear that this does not preclude the participation of those involved in academia and industry. On the contrary, we would actively encourage the involvement of these people. They would be able to provide the help and expertise to form a truly rigorous and effective exam system. However, those involved should be entirely independent of those in the educational establishment who have a vested interest in portraying standards as being maintained or even rising. The public’s perception of exam results has been tarnished by successive years of Ministers assuring the public that standards are rising, despite more and more evidence to the contrary. We need a regulator that will provide honest and impartial assessments of standards. I look forward to the Minister’s response.

My Lords, I am pleased to welcome this section of the Bill. I agree with those who have spoken so far that an independent regulator is essential for public confidence, as well as for the quality of education that pupils in schools have available to them.

All seven of the current group of amendments are, like the curate’s egg, good in parts. I will now—briefly, I hope—give my version of which parts are good and which, perhaps, are less good. It is not a black and white matter in most cases; rather, it is that there are shades of balance and opinion. I shall quickly run through them.

In Amendment 219, to summarise quickly, it is somewhat over the top to have all members appointed by the Crown. This might complicate things, and it might take away from the important position of the chair of this body. That is my reaction there.

In Amendment 220, however, there is a good balancing effort. The suggestion that members may elect their own deputy has much to commend it. If one takes that view, it follows that one would support Amendment 221, which relates to the continued tenure in office of the deputy.

Amendment 222 specifies that we leave out the Secretary of State in line 23 on page 203 of the Bill. It is inevitable that the first chief executive will have to be appointed by one form or another through the Secretary of State’s office, and it would not add much to strike that out from this part of the Bill. Ofqual may not be fully in existence until a chief executive is formally appointed. It is reassuring that, further down, the appointment and conditions of service of a later chief executive are subject to the approval of the Secretary of State, which is rather a different matter from making the appointment. So I am less happy about Amendment 222 as well as Amendment 223, which deals with the same point.

My reaction to Amendment 224A is that this is a much broader question than simply the appointment to this particular post. It is an issue that comes up in a number of contexts in this House: parliamentary scrutiny of public appointments. There is a discussion to be had about that as a principle, but if we were moving in that direction, I do not think I would start here. I would prefer to see this appointment through and Ofqual in process, rather than what might turn out to be fairly long-drawn-out scrutiny by committees of various kinds. If you have that in position, it is a different matter and you can perhaps deal with it fairly promptly.

I fully support the emphasis behind Amendment 220A, which has to do with transparency and disinterestedness. However, if one were to apply it as it is written out, leading as it would—as I think has been agreed—to the exclusion of all who have professional knowledge of examination, teaching and assessment, I wonder whether that would be a good thing.

A number of committees of your Lordships' House might find applying such a criterion rather difficult in so far as it would exclude from them some very important members who have an interest—members who currently can declare that interest and who can step aside if it is financial. It might also exclude those who have occupational and professional expertise that would in due proportion be very helpful to a body such as Ofqual. However, that being said, I support the direction of the Bill and hope that we can make good speed with it.

I listened with great interest to my noble friend Lord Sutherland, with his expertise in this subject. I am particularly pleased to support the intention behind the amendments because of the one word which the noble Baroness, Lady Walmsley, kept on mentioning: “independence”. I say that with some feeling, having been an independent inspector—not a regulator. You must be independent of the Secretary of State to the extent that you are not subject to direction as to what you are doing. I am interested that “Crown” is used in the amendment. I was a Crown official, not anything else, which meant that I was independent. That is important because the regulator should feel absolutely free to speak up and make comments—and criticisms if necessary—in public without any fear, favour or problem of being a civil servant and therefore accountable to a Minister. You will not have a proper regulatory system, for which I think there is approval on all sides of this Committee, until and unless the independence of the regulator is totally guaranteed. It is unfortunate if all the members of the regulatory body are selected by the Secretary of State. The regulator should be able to select people to form part of the regulatory body based on their own experience and their own knowledge of the kind of people they need on their staff to carry out the role and responsibility. I therefore very much welcome the intention of the amendment, although I can see that there may be some hurdles to overcome on the way to getting to what I think is the best solution.

My Lords, perhaps I may respond to the noble Lord, Lord Sutherland, who was concerned that my amendment would exclude experts from academia and industry. I said from the outset that we would actively encourage the involvement of such people. They would be able to provide their help and expertise in forming a truly rigorous and effective system. The amendment would not exclude them; it would make them part of the process.

My Lords, I am delighted that we are now moving on to debating the establishment of Ofqual. I would always be delighted to take lessons from a maiden aunt; I would love to have one. I was interested in the remarks of the noble Baronesses, Lady Walmsley and Lady Verma. I am grateful also to the noble Lords, Lord Sutherland and Lord Ramsbotham, for their words of wisdom. We are very privileged in this Committee to have such a wealth of experience and knowledge to draw on in our deliberations.

I am glad, although not surprised, that there has been such a widespread welcome in the Committee for the establishment of Ofqual in this opening debate on Part 7. That welcome has been given outside the House, too.

Qualifications are at the heart of the education and skills system. They recognise and reward achievements for young people as they complete their full-time education. They are central also for adults looking to strengthen their vocational skills. As the noble Baroness, Lady Walmsley, reminded us, a qualification’s currency is its credibility. Ofqual will need to be independent to give credibility to the qualifications it regulates, which is what the legislation is all about. The Bill provides for Ofqual to be a robustly independent regulator, which, as the noble Lord, Lord Ramsbotham, made so clear, is essential.

Before the Minster moves on, will the public appointments process she describes be one in which two names are put to the Secretary of State, or one name? A great deal of hidden power to shape the composition of public bodies exists when the requirement is to present more than one name for a given position.

I am happy to clarify that for the noble Baroness. I cannot do so right this minute, but I will ensure that I do, either later this afternoon or in writing.

I am being given inspiration from behind that the process involves one name coming forward. That may provide the noble Baroness with more reassurance, but I am happy to clarify the exact process to the Committee in writing if that is of any assistance.

The amendment on conflict of interest would be unnecessary.

The noble Lord, Lord Sutherland, talked about many helpful and interesting things, particularly the appointment of the deputy chair. Members of the Committee have been concerned about this, and I would be prepared to consider Ofqual having the power to choose its deputy chair from among its appointed members. As I have said before, when preparing the Bill we took the view on balance that the Secretary of State should appoint the deputy chair. However, there is a strength of feeling around the Committee that we need to emphasise independence further. Given the strength of feeling expressed on this, we would consider looking at it further.

The noble Baroness, Lady Walmsley, talked about Crown appointments, Amendment 219 and whether all board members should be appointed by the Crown and not the Government. Again, the experience of Ofsted is reassuring here. Ofsted has a Secretary of State-appointed board and is widely seen as robustly independent, as I have said. On what is perhaps more of a point of detail, it would, as far as we have been able to establish, be unprecedented for the Crown to appoint all the ordinary members of a board on a body like this, particularly when we can point to Ofsted as an example from which we can draw experience.

The responsibility for appointing the first chief executive is given to the Secretary of State simply to allow Ofqual—and this is important—to be up and running quickly. If not, we would have to wait for the members of Ofqual to be appointed before the process of appointing the first chief executive could even begin. I can provide reassurance on how the first appointment will happen in practice. Working with the chair of interim Ofqual, Kathleen Tattersall, we intend to make an interim appointment of the first chief executive. Once established, Ofqual will then take full control of recruiting its first permanent chief executive.

We have in the Bill a coherent set of arrangements to ensure that Ofqual has the leadership and management it will need to meet its important objectives independently and effectively, and to enable it to be up and running as soon as possible. We take seriously the need to ensure that we have an independent, strong regulator to fulfil these important objectives. I hope that, with these reassurances, and the commitment to consider further, the noble Baroness will feel able to withdraw her amendments.

I am grateful to the Minister for her words and to other noble Lords who have taken part in this debate. Given what I have been trying to do, I would have been terribly disappointed if I had not been accused of going over the top. Indeed, I am most grateful to the Minister for saying that she would at least consider the issue of the deputy chair. The deputy chair will, of course, stand in the position of the chair on occasions. If that person has been given the support of the board, that will be all to the good. I am grateful to the noble Lord, Lord Sutherland, for expressing his support for that idea. I understand the noble Lord’s point about the whole board being made up of Crown appointments. As the Minister said, I am quite aware that there is no precedent. Given what the noble Lord, Lord Ramsbotham, said about the independence that a Crown-appointed person feels, that is why we wanted to give that element of a feeling of independence, and the confidence that it brings, to the whole board. However, I accept that there is no precedent for that, and that Ofsted has proved to be independent, so we will certainly consider what has been said about that.

I am interested in the idea—suggested, I think, by the noble Lord, Lord Ramsbotham—that the chief regulator should be able to add appropriate people to the board. Between now and Report we will look at that idea and see if we want to bring forward further amendments to allow that to happen if it were appropriate. I am grateful to the noble Baroness, Lady O’Neill, for asking her question. The office of public appointments is still young; its processes are still embedding. That is why we have not felt total confidence that the process will produce a wholly independent board that cannot be influenced by the Secretary of State. I am encouraged, however, by what the Minister said about the first chief executive being an interim appointment. If that is to be the case, I think I will bring forward an amendment on Report to put the word “interim” in the Bill, which would make me happier. It certainly gives me some reassurance to know that it will be an interim appointment, and that Ofqual itself will appoint the first permanent chief executive, in so far as these appointments are ever permanent.

I am most grateful to all Members of the House for their thoughts, because it has certainly moved on my thinking as to how we will take this issue forward. We probably will in some way. I look forward very much to hearing what the Minister comes up with in relation to the deputy chair. I encourage her to do her best to accept that idea. In the mean time, I beg leave to withdraw the amendment.

My Lords, the purpose behind this amendment is to make sure that Ofqual, which is an organisation that I thoroughly support, has the powers necessary to make a proper evaluation of the quality of examinations. There is a great difficulty in judging the quality of an examination from within the examination system itself. For instance, if you have two GCSEs in French from different boards and you can see from the pupil data that the pupils in one are doing much better, relative to their other educational attainments, than the pupils in the other, you cannot, of itself, tell whether one of those examinations is easier or whether one of them is better, in that the way it is set out and the educational material with it encourages its pupils to excel. The only way in which you can get at that information is to look outside the examination system.

With GCSEs that is easy; you watch what pupils go on to do at A-level. For example, how many of them take French and how they do in it, particularly those who are taking French with different boards or in different ways? That enables you to form a picture of whether the excess performance, as it were, in one examination is laudable or is something about which Ofqual has to do something in order to tighten up the standards in that exam.

Amendment 225 would ensure that Ofqual had access to data from the Higher Education Statistics Agency. Without such information, you cannot really get a handle on A-level performance. You need to look at what pupils have gone on to do afterwards, which courses they have chosen to take and how they have done in them, to see whether the A grades being awarded in a particular examination reflect learning and the quality of the student or whether they are created by an examination being in some way made easier than it should be.

I have dealt with the HESA in a private capacity as the proprietor of the Good Schools Guide and I have found it exceptionally difficult to deal with, unco-operative and unhelpful. I suppose that that experience motivated me to put down this amendment. I have not been disappointed in the letter that the Government got for me from the HESA. It is clearly not an organisation that is accustomed to reach out the hand of comradeship to other parts of government. It very much says, “If you give us a cheque, we’ll think about it”.

My advice to Ofqual is that one of the first things that it should do is to write to the Higher Education Statistics Agency requesting that it start collecting proper statistics on which schools students come from. It should connect those statistics back into the student database so that it is possible to track at least a good proportion of students from the point where they gain their qualifications from an English school to the point where they get into university and achieve results in their degree. At the moment, that data collection is extremely lackadaisical, is not undertaken with any sense of dedication or urgency and contains a great deal of inaccuracy. It needs to be of better quality if Ofqual is to be able to do its job. I very much hope that Ofqual will take up the letter from the HESA and pursue it to try to ensure that those data are fit for purpose.

The second part of the amendment would ensure that Ofqual had the ability to do the research that it needs to look outside mere examination statistics. One thing that has gone against our belief in the maintenance of examination quality is the methods that have been used by the QCA to, in its view, maintain standards. That has been largely a matter of comparing one year’s examination results with those of the immediately preceding year. That short-term comparison within a system is always subject to error and those errors tend, in the natural human way of things, to be cumulative. You would expect a system based on that reference to drift over time. I am not surprised that many people think that GCSEs in particular have drifted in that way.

You need to conduct proper research into the underlying capabilities of students, through sample testing and other investigations, to enable you to look beyond the examination system and to look back in history with some accuracy. When you have a pattern of the requirements of a particular qualification changing over time, you need to have an unvarying reference point that you can go back to in understanding the capabilities of the students taking it. I am concerned that Ofqual should have the power to undertake those investigations. I beg to move.

My Lords, in following my noble friend Lord Lucas, I apologise at the outset for the length of notes that this large group of amendments brings. To allow thorough scrutiny of Ofqual, I will reinforce many of the points raised by my noble friend.

Amendments 230 and 231 are designed to make explicit in the Bill Ofqual’s duty to maintain standards in the regulated qualifications. The Minister may argue that this duty is already implicit in the Bill and that there is therefore no need for the amendments. We suggest that they are necessary because they raise two key concerns. First, we are worried that there is a risk that Ofqual could be seen primarily as a PR agency designed to reassure people that standards are consistent or rising, without actually performing an active function to ensure that that is the case. Our worry stems from comments that come from Ofqual. Kathleen Tattersall, the chief executive of Ofqual, said:

“Ofqual has been set up … to ensure that there is better understanding of the issue and to assure public confidence”.

We would accept that if assuring public confidence were a consequence of proper regulation and maintenance of standards rather than a primary objective in itself. Can the Minister reassure us that this will be the case?

Secondly, the amendments draw attention to the difference in our approach to this body. As I understand it, the Government compare the actions of Ofqual to making sure that the height of a specific hurdle remains consistent between comparable qualifications and assessments. We, however, want to take action to improve standards. To be more specific, we would prefer there to be an explicit duty in terms of standards, which would mean not only that the height of the hurdle would be regulated but that there would be a robust examination system that would reject anything that would allow standards to fall. The hurdle should not be lowered.

We want an examination system that is comparable to the best across the globe. That would mean that our learners were assessed by exams that would offer them the opportunity for a real rise in standards, not just a nice statistic that shows an increase in the number of passes in a devalued exam. This rigorous examination system would help more of our pupils who work so hard to leap over a hurdle that would put them on a par with the world’s best.

We have therefore also tabled Amendment 236, which says that within eight months of being set up Ofqual must publish a report on whether standards of qualifications have been maintained over the past 15 years. This study must include A-levels and GCSEs. We feel that this is a necessary commitment. The Government have constantly told us that standards have risen, yet some of the world’s best academics point out that an increase in the number of passes does not mean that standards have risen if the result is just that the exams themselves are easier and the pass mark is lower.

Does the Minister agree that, if part of Ofqual’s remit is to reassure people that standards are being regulated, a report of this nature would be useful? We believe that it is necessary because, as the Minister will be only too aware, we are concerned that standards have in fact been falling. We are worried that we are failing learners who need the right opportunities, the best teaching and exams that will allow them to demonstrate their learning to their fullest potential.

In my honourable friend Michael Gove’s Haberdashers’ Aske’s lecture, he drew attention to Duncan Lawson from Coventry, who showed that students entering university in 2001 with a B at maths A-level displayed a level of knowledge that 10 years before would have been shown by a student with an N grade or a fail. Professor John Marks, who has been leading a study of GCSE and O-level papers, found that,

“it is now possible to achieve a Grade C in GCSE mathematics having almost no conceptual knowledge of mathematics”.

He also discovered that,

“in 1990 the percentage mark on the Higher Tier for a Grade C was just over 50%. However, in 2000 and 2006 the required percentage mark for a C grade had fallen to about 20%: this mark could be ascertained by answering correctly the first four questions on Paper 5 and Paper 6”.

These are appalling statistics. Does the Minister not see that it is important to create an examination system that not only regulates the standards of exams but helps to ensure that children are not failed by an examination system that no longer guarantees them academic excellence?

For 16 year-olds, the expected minimum standard is five good passes at GCSE, including maths and English. This year, fewer than half of schoolchildren managed to clear that hurdle. We must ensure that standards are maintained at a consistent height between comparable assessments. This is an important concern. We also need to ensure that our assessments are not devalued. We want an examination system that does not allow a progressive decline in standards but upholds them; we need to regulate our exams so that they are comparable to the best in the world.

We draw attention to the fact that in 2008 Ofqual, as one of its first intervening actions, forced AQA to lower the pass mark for its GCSE science paper to 20 per cent. AQA had refused to lower the mark because it considered that it would not be comparable with standards over time and would devalue the exam. Ofqual, however, demanded that AQA reduce the pass mark and thus the standard of this exam was lowered.

The noble Baroness, Lady Walmsley, has tabled an amendment stating that Ofqual should be able to direct a specific body at a specific time regarding a specific qualification to set a particular standard. Noble Lords will all be aware that we would agree with the principle behind her provision, as long as Ofqual did not direct the body to lower standards. I very much look forward to the Minister’s response and I hope that she can offer some reassurances.

On our Amendment 316, the Minister and the Committee will be aware that we have been calling for an independent regulator to monitor exam standards and ensure that they are maintained. When David Cameron was shadow Education Secretary, he stated:

“Reform of the Qualifications and Curriculum Authority is the one such positive step. It is not acceptable that the QCA, the guardian of our exams, is not independent of the Government”.

We believe that the structure and design of Ofqual should be such that the body has powers to ensure that it can uphold strong and appropriate grade boundaries and thus help to guarantee that our exams and our pass marks are comparable to the best across the globe. At the moment, unfortunately, our qualifications system is struggling in a competitive international market. Standards are failing and we must take action to fix this situation. I am sure that the Minister is just as concerned about this as we are.

This year, 40 per cent of children who left primary school failed to reach the accepted minimum standard for their age in reading, writing and mathematics. In the PISA studies on advanced economies and their educational performance, we dropped from fourth to 14th for science, seventh to 17th for literacy and eighth to 24th for mathematics. This is most dispiriting.

One of the significant concerns that Michael Gove identified in his speech was:

“What looks like a great performance in our state-run exams turns out to be below par when compared internationally”.

He raised his concerns about grade inflation, where our students are suffering because, he said:

“The qualifications we offer are no longer so robust”.

Our worry here is that, while our students and teachers are putting in enormous amounts of hard graft and effort to pass exams, they are being failed by an exam system that cannot give them the freedom to compete in an international market.

We have therefore asked Sir Richard Sykes, the former rector of Imperial College, to review the system of assessment and qualifications in this country. The main aim behind this is to ensure that our exams are internationally competitive again. It is of the utmost importance to secure these standards to make sure that our children are afforded the same opportunities as those from other countries and are stretched to their full potential.

These amendments would add a further dimension to Ofqual. They would bring in an international benchmark to which exam standards should be fixed in order to ensure that they remain competitive. Amendment 226 would insert an international duty into Ofqual’s objectives. Amendment 232 expands on this to define the international objective as that included in the comparative study that would be brought in by Amendment 316. I hope that the Minister will consider these amendments in a favourable light, addressing both the principle of international benchmarking and the logistics of the amendments.