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Childcare Bill [HL]

Volume 762: debated on Wednesday 1 July 2015

Committee (1st Day) (Continued)

Amendment 6

Moved by

6: Clause 1, page 1, line 5, at end insert—

“(1A) For the purposes of securing “high-quality childcare” under subsection (1), the Secretary of State must, within 6 months of this section coming into force, lay a report before both Houses of Parliament setting out her strategy for developing the early years workforce.

(1B) The strategy mentioned in subsection (1A) must include in particular—

(a) a target for the number of graduates in the early years workforce,(b) a target for the proportion of managers of early years settings who are graduates, and(c) a plan for increasing the number of nursery schools to a specified level.”

My Lords, this amendment would require the Secretary of State, within six months of this section of the Act coming into effect, to lay a report before both Houses of Parliament setting out the Government’s strategy for developing the early years workforce. It seeks to secure a commitment from the Minister that the Government will publish a strategy to increase the quality and capacity of that workforce. I shall try to be quick.

I am grateful to the National Children’s Bureau for helping to prepare the amendment. I should like to seek clarity from the Government regarding their plans to ensure that all children receiving 30 hours of free childcare can access high-quality early years education and childcare that promotes both their learning and their development and is delivered by well-trained and qualified practitioners. I would like the expansion of free childcare to be supported by an early years workforce improvement strategy, setting out how the Government intend to recruit and train new practitioners and retain existing practitioners through qualifications and career development support.

Evidence shows that a well-qualified, confident and experienced workforce is central to the delivery of early years services that improve young children’s outcomes. The Nuffield Foundation has recently reported on a strong relationship between the level of staff qualifications, the quality of provision as judged by Ofsted and outcomes for young children. Despite recognition that employing a graduate leader improves the quality of provision, since the graduate leader fund ended in 2011 there has been no dedicated national funding available for local authorities to support the training and qualifications of early years practitioners. In addition, reductions in local government budgets have meant that many local authorities can no longer subsidise training for new and existing practitioners. At present, only 14% of private, voluntary and independent settings employ a graduate, with few opportunities for these providers to fund graduate training.

Measures are also needed to improve the qualifications of non-managerial staff. A significant minority of practitioners are working in the sector despite not holding a level 3 qualification, an A-level qualification, the minimum recommended by the Nutbrown review of early education and childcare qualifications in order to deliver high-quality services to young children and their families. One-third of childminders do not hold a level 3 qualification and 14% are unqualified. In group settings, 13% to 16% of staff do not hold a level 3 qualification and 4% are unqualified.

A lack of investment in the early years workforce, coupled with an increase in staff vacancies and a reduction in childminder numbers, is limiting the capacity of the early years sector to provide high-quality free entitlement places for three and four year-olds, with the greatest impact being felt by providers in poorer areas—areas that are required to deliver a greater proportion of free places for disadvantaged two year-olds.

Between 2011 and 2013, there was a 42% increase in staff vacancies in full-day care settings and a 59% increase in staff vacancies in sessional care settings. During the same period, the number of active childminders fell by 6%, from 48,800 to 46,100. I would argue that a review of the workforce delivering the free entitlement for three and four year-olds should be undertaken in order to ascertain existing and projected gaps in workforce capacity prior to the extension of free childcare to 30 hours. This review would help to ensure that accurate targets for increasing the number of graduates, graduate leaders and level 3 practitioners are set out in the workforce strategy.

The Department of Health’s health visitor implementation plan set measureable targets for increasing the health visiting workforce and is expected to miss its 2015 recruitment target of 4,200 new health visitors by only 3%. That is a tremendous achievement on the Government’s part.

If I may say so, the Childcare Bill provides an opportunity to increase both the quality and the capacity of the early years workforce through a workforce improvement strategy. Failure to do so would hinder the expansion of free childcare to 30 hours. I therefore have three questions for the Minister. Will he provide assurances that the Government will develop a strategy for expanding and improving the quality of the early years workforce? Can he confirm whether the Government will review the composition of the workforce delivering the current free entitlement in order to ascertain existing and predicted gaps in capacity? Finally, will the Minister confirm whether the Government intend to put in place measures to increase the number of graduate leaders? I apologise for not giving him notice of those questions and quite understand if he would prefer to write to me on them.

I have a couple of other amendments in this group, one of which is on hours of training for staff, particularly emphasising the need to allow staff to have training away from the children so that they can reflect on their relationships with them. Coram, a well-recognised, high-quality provider, provides such time away from the children for staff development. It can be seen as a costly input but it is vital. In teaching we have Baker days and recognise that teachers need time away from their pupils to develop themselves. The same should apply to early years provision. The other amendment is to do with increasing the number of nursery schools, and I was grateful to the Minister for his reply on that particular topic earlier today. I beg to move.

My Lords, I rise to speak to Amendment 13 and to support the other amendments in this group which have been very ably explained by the noble Earl, Lord Listowel, and all of which highlight the need for a high-quality workforce in this sector.

As we know, there is compelling and conclusive evidence that the presence of trained early years teachers in nurseries has the biggest impact on children’s early years development. This was a central theme of Cathy Nutbrown’s report and was echoed in the Select Committee’s report on affordable childcare, where it was identified that the number of qualified staff, and therefore the quality of provision, was higher in the maintained sector than in the PVI sector. Most worryingly, it was identified that provision in the most disadvantaged areas tended to be of lower quality. For example, the report quotes evidence from Ofsted, which described how in the more deprived areas the people who put themselves forward to work tended to have lower levels of skill.

Clearly there has been some progress in this area. The Minister spelled out some examples in his Second Reading response and in the subsequent policy statement. There has, for example, been a welcome increase in those holding a level 3 qualification, although it is by no means universal. But as Save the Children has pointed out, over half of independent nurseries do not employ a single early years teacher and only 13% of staff in independent nurseries have a degree. Meanwhile, as the noble Earl, Lord Listowel, pointed out, since the graduate leader fund ended in 2011, there is no dedicated national funding to support the training of early years practitioners, which could help the PVI sector. Save the Children has also described how a third of childminders do not hold a level 3 qualification, nor do a sixth of staff in group settings.

In response to these concerns about the quality of staff, the Affordable Childcare Committee report recommends that,

“the Government considers how the proportion of staff qualified at a higher level can be increased in the PVI sector to drive up overall quality. In line with that, we also recommend that the Government reconsiders its response to the Nutbrown Review”.

We believe that this amendment provides a vehicle for the Government to do that. A report of the kind that we outlined would allow an assessment to be made of the progress in rolling out level 3 and early years teacher status. It would specifically enable an analysis to take place of the causes of lower qualifications among black and ethnic minority staff. This was also proposed by Cathy Nutbrown. It would provide a vehicle for analysing the recruitment and retention issues which many in the sector report are a major barrier to growth.

We also believe that low pay rates are at the heart of this problem. A recent survey for the National Day Nurseries Association highlighted evidence of qualified staff leaving to earn more money working in supermarkets. In his Second Reading speech, my noble friend Lord Sawyer gave examples of staff employed to look after dogs being paid twice as much as those who are looking after babies. All these examples demonstrate an urgent need to investigate levels of pay, comparators with earnings in other education sectors, the scope for paying at least the living wage and the contribution that a national pay structure can play in easing recruitment challenges in the future.

I hope that noble Lords will feel able to support this amendment which reflects many of the concerns of the Affordable Childcare Committee and would enable the Government to identify the further drivers which could help improve quality and retention in this sector.

My Lords, I just want to speak briefly about baselines. As we are talking about quality, I wonder whether the Minister has seen the report of the Family and Childcare Trust, Access Denied, which does not talk about quality but about 38 English local authorities which failed to carry out and publish assessments of local childcare since 2012. Therefore, a large number of working families have no access at all to childcare. The report gave an example of a mother who said:

“I was so happy when my boy turned three and we got free nursery education. I decided to try and move him from the childminder to a nursery, where he could get the free hours. But I could not find a place with any vacancies. The local nursery and the school were both full, so I’m still with the childminder, so no free hours for him and a big bill for me”.

Would the Government like to comment on this problem of access to basic childcare, never mind quality?

My Lords, I do not want to expand on what has already been said most ably by the mover of the amendment, the noble Baroness, Lady—oh dear.

It is, yes. I have been concentrating hard. I support everything that the noble Baroness said because it follows on from the earlier debate about quality. You cannot deliver quality unless you have a well-trained staff working in the childcare sector. I wanted to make it clear that there is support on our side. We have no critical comment to make but welcome the amendments that have been moved.

My Lords, I shall also speak to Amendments 13, 17 and 36, on the early years workforce. I thank the noble Earl, Lord Listowel, and the noble Baroness, Lady Jones of Whitchurch, for bringing forward these amendments. They are wide-ranging and cover a review of the workforce and workforce strategy, together with specific issues such as training, qualifications and pay.

I am sure we would all wish to pay tribute to the commitment and dedication of the early years workforce. Their hard work and devotion does not go unnoticed, and the support they give to children in the most important years of their lives is critical to ensuring that every child gets the best start in life. The Government are committed to ensuring that childcare hours are of high quality and, of course, the workforce is key to that.

The noble Earl, Lord Listowel, has moved an amendment requiring the Secretary of State to,

“lay a report before both Houses of Parliament setting out her strategy for developing the early years workforce”.

We covered this issue in an earlier group of amendments. I set out that strategy and some of the initiatives that the Government have introduced, so I do not propose to repeat those.

The noble Earl also moved an amendment to make explicit requirements for the use of graduates in early years settings. We are committed to continuing to raise the quality of the early years workforce. We have already set the bar high for the qualifications of people working in childcare, including early years teachers, who must meet the same training course entry requirements as primary teachers. Since 2007, 15,422 early years teachers have been trained. I also assure the noble Earl that we will continue to support expansion of the graduate workforce through the provision of early years initial teacher training routes and through providing funding support for trainees.

Regarding the noble Earl’s amendment to develop a strategy to increase the number of maintained nursery schools, we recognise that they have been shown to deliver high-quality early years education. However, we must of course also recognise that many private, voluntary and independent providers also deliver quality. At 31 December 2014, the proportion of all providers on the early years register rated good or outstanding by Ofsted was 83%.

While we agree that many nursery schools offer high quality, we also think that the diversity of the childcare sector is one of its strengths as it offers choice and flexibility to parents. We want maintained nursery schools to play their part in a diverse early years sector in years to come, delivering high-quality, sustainable provision that is responsive to the needs of parents in their local area.

I say to the noble Baroness, Lady Howarth, that I have indeed read the report to which she referred and we will certainly reflect on some of the findings laid out in it.

The noble Earl, Lord Listowel, has also tabled an amendment which would require early years settings to provide a specified number of training hours per year to each member of staff. While I entirely understand the intention behind this amendment, to support staff training and development, we think this is a matter for individual employers and the sector to lead on. We will continue to support the sector in doing so, but do not believe that specifying a one-size-fits-all model would be helpful. Given these reassurances, I hope the noble Earl will withdraw his amendment.

The noble Baroness, Lady Jones, has tabled an amendment which would require a review of the qualifications and pay of staff. It specifically addresses the assessment of progress of level 3 qualification standards, the assessment of progress in introducing early years career paths, recruitment and retention, pay levels and the number of black and minority ethnic staff at different levels of the profession. I will take each of these briefly in turn.

We have a robust set of standards for level 3 early years educator qualifications. The quality of the workforce is increasing year on year. We know that the proportion of paid staff with at least a level 3 qualification increased between 2011 and 2013. The sector shares the Government’s ambition to see staff in key positions holding good GCSEs in English and Maths, as this can only be to the benefit of the children with whom they work and the status of the profession.

We recognise the importance of clear progression routes within the sector to attract and retain good-quality staff, and will be looking further at how to ensure that the current and prospective early years workforce can take advantage of the varied and rewarding careers that are available to them. I know that the Minister for Childcare and Education is looking closely at the qualification frameworks and rules to ensure that they are enabling the development of a high-quality workforce.

The noble Baroness, Lady Jones, and the noble Earl, Lord Listowel, also raised the important issue of recruitment and retention. It is important that experienced and skilled early years professionals want to stay in the profession, a point made by the noble Baroness. The Government recognise that settings, the majority of which are private businesses, manage this themselves in the context of their staff employment and deployment responsibilities.

There are many reasons why staff turnover may increase, including local economic factors which are beyond the control of providers. Making staff turnover information available at a local level to parents could lead to the information being misinterpreted and lead a parent to dismiss out of hand a good-quality setting that is doing good work to support staff. That is not what anyone would want.

The noble Earl, Lord Listowel, tabled an amendment on local authorities publishing turnover rates of early years staff. We already collect and publish information on staff turnover through the Childcare and Early Years Providers Survey, which was last published in 2013 and is publicly available on GOV.UK. We think this is the right level of information about turnover, and that it is not appropriate or necessary for local authorities to publish further information.

As regards the amendment of the noble Baroness, Lady Jones, on reviewing pay, all private, voluntary and independent providers are free to set their own pay scales. This means that those working in the sector can be paid as their employer sees fit. Only those defined as “school teachers” under Section 122(3) of the Education Act 2002 are legally entitled to the pay and conditions specified in the School Teachers’ Pay and Conditions Document. With respect to the noble Baroness’s amendment to assess the numbers and qualifications of black and minority ethnic staff, it is the responsibility of early years training providers and employers to ensure that they do not discriminate when recruiting trainees and employees, and they must comply with the requirements of the Equality Act 2010. Information published on the representation of ethnic minorities reveals that school-based providers in nursery schools have the highest level of BME staffing, at 17%.

In conclusion, while we sympathise with the intention behind these amendments, we do not think they are necessary. Work is already under way to look at how to support the continued improvement of the early years workforce. I therefore urge the noble Earl, Lord Listowel, and the noble Baroness, Lady Jones, to withdraw their amendments.

My Lords, I am grateful to the noble Baroness for her careful reply and for what she said about the availability and additional funding for early-years initial teacher training. However, I must say that I still do not feel reassured. The noble Baroness stated that it was important to leave parents to choose what suits them, to allow them the flexibility to decide what needs to be done. I am afraid that research I have seen indicates that parents tend to choose price over quality. We are putting them in a difficult position: they are desperate to get out to work, and we are saying, “We will leave it to you to choose. You have to make the choices, without necessarily having all the information”.

I understand what the noble Baroness says about not publishing the turnover figures. Will she be good enough to write to me with a breakdown of turnover levels, ranging from the turnover of staff in nursery schools to group settings in children’s centres, and looking at privately, voluntarily and local authority-run settings? I would be grateful to see the range that is available.

I understand that there is always a balance. The Government do not wish to be overly prescriptive, to unnecessarily hinder businesses from doing a good job, or to interfere too much with the market. On the other hand, I am not sure that the balance is right here. It is so important that children get the high-quality care that they need; the Government may have to go further to persuade noble Lords that the additional care offered will be of the necessary quality. Nevertheless, I am grateful for the noble Baroness’s response and I beg leave to withdraw my amendment.

Amendment 6 withdrawn.

Amendments 7 to 9 not moved.

Amendment 10

Moved by

10: Clause 1, page 1, line 10, at end insert—

“( ) Regulations under subsection (2)(c) must ensure that the description of “qualifying child of working parents” includes children between the ages of 1 and 2 years.”

My Lords, Amendment 10 is in my name and that of my noble friend Lady Tyler of Enfield. It seeks to ensure that the new free entitlement provided under the Bill is also available to parents with a child aged between one and two. The Government’s announcements on this Bill have made it clear that they intend to target their support at three and four year-olds, who already receive 15 hours of free childcare a week. While I welcome this, it means that a significant gap in childcare arrangements will remain. At the moment, a parent with a newborn baby will receive support during parental leave, which—thanks to the work of Liberal Democrats in the previous Government —can be shared between mothers and fathers, helping them to share child-raising duties. However, once their statutory pay expires, they must make ends meet on their own. It can therefore be of little surprise that many parents see the end of their statutory parental pay as the point at which they need to return to work. It is a luxury that few can afford to go on for many months, especially due to the high cost of housing.

However, when parents do return to work under our current system they are likely to receive a nasty shock. They will find themselves suddenly in need of childcare but receiving little, if any, of the support that others with slightly older children receive. These parents, who are just at the point of wanting to get back to work, will not see the benefits of the free entitlement under either current policy or the Bill. How can this be right or fair? Surely this is exactly the time when support needs to be there to help parents to get back to work, which is clearly the intention of the Bill, applying as it does only to working parents.

Indeed, the failure to support people looking to get back to work can have significant long-term effects. The Office for National Statistics released a report in 2013 that stated:

“Over the year from April-June 2012 to April-June 2013, if one had been unemployed for less than three months one was 3.2 times more likely to move from unemployment into employment compared with someone who has been unemployed for over two years, and 1.9 times more likely compared with someone who has been unemployed for between six and 12 months”.

In 2014, a United States study by, among others, Alan Krueger from the Brookings Institution, suggested that those in long-term unemployment have a 20% to 40% lower probability of returning to work in the future than those who have been short-term unemployed. These studies show the importance of ensuring that new parents are given all the support that they need to return to work when it suits them, rather than delaying support until when they can afford it. Of course, parents may choose to return to the same job that they left, or move to a more flexible job, but the point remains the same. That is why the Liberal Democrats, in our election manifesto, specifically prioritised extending the 15-hour free entitlement to all working parents with children aged between nine months and two years after extending the 15 hours to all two year-olds.

I appreciate that that proposal would cost money. It is estimated that the manifesto policy that I have just described for 20 hours’ entitlement for those aged from nine to 24 months would have cost £1.26 billion a year. The proposals in the amendment would, of course, cost substantially less; I have not been able to cost them because they would apply only to working parents. It is worth pointing out that we are not talking about two different sets of people: anyone who has a child aged between three or four has also had a child aged between one and two. It does not make sense to target one but also to leave the gap at one to two year-olds.

It is hard enough for someone to leave their baby and return to work, without the additional challenge of struggling to afford childcare. The Bill provides us with an opportunity to correct this imbalance. I beg to move, and urge the Minister to consider how parents of one to two year-olds may be helped by the free childcare offer from the Government.

My Lords, surely, as the noble Baroness has acknowledged, there is a key question of affordability here. There is a great danger of good intentions running away with us on this legislation. I ask the noble Baroness for clarification. She speaks from the Front Bench of her party; is she making a commitment that the Liberal Democrats believe that that money should be spent?

My Lords, as the noble Lord, Lord True, and I said earlier, election manifesto promises are important. The Liberal Democrat manifesto gave a commitment to providing childcare in this gap for one to two year-olds. In the end, it is a question of priorities. Either you spend money on things such as Trident or you spend it on children from one to two years old. It is a question, as always, of priorities.

My Lords, I shall speak to Amendment 10. While I understand the noble Baronesses, Lady Pinnock and Lady Tyler, would like working parents of children between ages one and two to be entitled to additional childcare, the elected Government’s manifesto commitment is to increase the hours of free childcare to working parents of three and four-year-olds.

There is already support for childcare put in place by the last Government. We have increased the child tax credit entitlement to £2,780 per year for families with one child, £480 more per year than in 2010. We have legislated for tax-free childcare, which will save about 1.8 million working families with children under the age of 12 up to £2,000 per child a year.

The Government are also committed to increasing childcare support within universal credit by about £350 million to provide 85% of childcare costs from 2016 when a lone parent or both parents in a couple are in work. This is up from 70% in the current working tax credit system and current universal credit system.

This package of support for childcare as a whole provides help for parents with children between ages one and two and represents significant public investment. These are, however, difficult economic times, and the Government have to make hard choices. We know that more parents use childcare as children move towards school age. We are, therefore, focusing on where there is the greatest demand for childcare. Alongside this, two year-olds in low-income families also receive 15 hours a week, offering both high-quality early education and the opportunity for their parents to move into work.

I hope, for these reasons, that the noble Baroness is persuaded to withdraw the amendment.

The response from the Minister is predictable because of the cost to the public purse of providing free childcare in this gap year. I refer, however, to the comment I made earlier about the motif on the door of the Minister’s office, which says, “closing the gaps”. Here is a big gap that I would like closed. If we can edge towards this by saying, “What we would really like to achieve for early years care and education is a planned approach which includes provision from age one to four,” I would welcome that. At the moment, we have a more or less ad hoc approach to extensions; first it was to everyone—the universal offer—now to only those with working parents, and to some two year-olds from disadvantaged families. It seems that we ought to be able to extend this to one and two year-olds, especially to those from disadvantaged families who would qualify at age two. As I and many of the Members of this House have said, if we can help the most vulnerable children in the most disadvantaged homes, it helps not only those children but also the rest of society as they grow into adulthood.

I hope that, at some point, perhaps on Report, there could be an approach to help bridge that gap. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendment 11 not moved.

Amendment 12

Moved by

12: Clause 1, page 1, line 18, at end insert—

“(3A) In order to support the effective implementation of the duty under subsection (1), the Secretary of State shall arrange for a review to be conducted that shall include, but shall not be limited to—

(a) an assessment of how the new entitlements in this Act will support the inclusion of disabled children and those with special educational needs;(b) an assessment of how the existing structures and framework for childcare meet the needs of disabled children and those with special educational needs; (c) an assessment of existing barriers that limit access to childcare by disabled children;(d) an estimate of the access to the current entitlement of free early education;(e) an assessment of how many local authorities have sufficient childcare for disabled children;(f) a calculation of the additional costs, funding and support required to meet the needs of providing childcare to disabled children;(g) an analysis of the workforce available and their ability to provide quality childcare for disabled children.(3B) The report of the review under subsection (3A) shall be laid before both Houses of Parliament.

(3C) Once the review has concluded, the Secretary of State shall establish a strategy for improving the skills of the early years workforce to meet the needs of disabled children and those with special educational needs.

(3D) Where the Secretary of State does not adopt a recommendation from the review, the Secretary of State must set out the reasoning for doing so.”

My Lords, I also support Amendment 16, which has similar objectives. Two key findings of the report of the Parliamentary Inquiry into Childcare for Disabled Children in 2014 were that,

“disabled children are denied the same opportunities for positive educational and social development”,

and that:

“Parents are denied the same opportunities to choose to return to work”.

Here in 2015, the same conditions still exist but now we have a chance to change that with these amendments to the Bill.

At Second Reading, the Minister stated that where parents of disabled children would like to go out to work, the Government wish to make it easier for them to do so. We support this aim. We know that 88% of the parents of disabled children who do not work wish to return to work. However, we must bear it in mind that 83% of them cite the lack of suitable childcare as the main barrier to doing so. The Minister also said at Second Reading that,

“parents with disabled children must have the same opportunities as other parents to access the entitlement”.—[Official Report, 16/6/15; col. 1127.]

That refers to the new entitlement to 30 hours. We obviously welcome this important commitment and will support him in achieving it. However, we have a long way to go to make this a reality. We know that parents of disabled children do not have the same opportunities to access the current entitlement. For example, only 21% of local authorities are now reporting that there is sufficient childcare for disabled children in their area. Simply adding a new legal entitlement on top of that entitlement, when we know that it is already not working for families with disabled children, will not be enough to secure equal access.

For disabled children and their families, business as usual will not be enough. This amendment would also require the review to make a calculation of the additional costs of funding and support required to meet the needs of providing childcare for disabled children. My noble friend Lord Touhig made it clear at Second Reading that one of the main barriers to the greater inclusion of disabled children was the lack of consistent funding to meet the additional cost. We were therefore pleased that the Minister stated at Second Reading that the funding review announced by his department would consider evidence on the funding issues for disabled children. However, given this commitment, why does the call for evidence for the funding review make absolutely no reference to funding the additional needs for disabled children? I hope that he will be able to reassure me on this point and can confirm that the funding review will explicitly take into consideration the additional cost of ensuring equal access to the new entitlement for the parents of disabled children.

I also request that the Minister asks his officials to work on the funding review with members of the Special Educational Consortium, who have expertise in this area. He and his team will benefit greatly if they do. They will produce better information by working closely with those who, on a day-to-day basis, help parents with these problems to solve them by giving them advice on where they can go for help.

Amendment 12 also identifies workforce issues, which are a recurring theme today. We supported the Government’s reforms to special educational needs and disability provision contained in the Children and Families Act 2014. This Act focuses on early identification and early intervention, and on achieving the best possible educational outcomes. We know that the earlier a child’s needs are correctly identified, the more effective the intervention will be. However, an early years workforce without proper training or qualifications will not be able to deliver the Government’s vision for children with special educational needs and disabilities.

The Parliamentary Inquiry into Childcare for Disabled Children found that the situation could be so bad that the lack of staff skills and confidence was often the reason for parents,

“being subtly discouraged or simply turned away by a provider”.

This simply is not right. It is discriminatory and I urge the Government to address it. The review proposed in our amendment would be a vehicle for this, so I very much hope that your Lordships will support it.

My Lords, I shall speak to Amendment 16 in my name and that of my noble friend Lady Pinnock. In doing so, I very strongly support Amendment 12, which has just been moved so ably by the noble Baroness, Lady Jones. Indeed, much of what I wanted to say has already been said, so I will be brief.

We know there is much evidence that existing childcare is simply not working well enough for disabled children and those with special educational needs. That is the nub of my amendment. It will place a requirement on the Secretary of State to ensure that childcare providers are suitably qualified and trained to deliver high-quality care to disabled children and children with special educational needs, that childcare providers have suitable facilities to do this task and, very importantly, that they have access to additional funding to meet the needs of all these children.

I warmly welcomed, as, I am sure, did many others in this House, the commitment by the noble Lord, Lord Nash, to equality in this area and his statement at Second Reading that,

“parents with disabled children must have the same opportunities as other parents to access the entitlement”.—[Official Report, 16/6/15; col. 1127.]

However, there is overwhelming evidence—we have heard it this evening—that parents with disabled children are struggling to access their current entitlement to childcare.

A salient point here is that the current funding system does not take account of the additional costs of supporting disabled children. I know that some local authorities provide top-up funding, which is of course welcome, but it leaves us with a very patchy and inconsistent pattern of provision. I recognise fully that my amendment would have costs attached to it at a time when money is tight. However, the social, economic and, above all, moral case for finding the money to ensure that local authorities can fund all childcare providers to offer suitable places to disabled children is very strong. We are in a difficult situation, as has been said. I hope this is one area the funding review will look at, but until we have that funding review it is hard to say whether more money will go into this area. I very much hope that it is something that we can return to when we have the funding review.

We also know—we have heard plenty of evidence of it today—that the workforce is not suitably qualified and trained at the moment to deliver high-quality care to disabled children. It is something that Cathy Nutbrown touched on in her review. Again, I know that the Government have taken welcome steps to develop a range of tools to support professional development, but there is much still to do. We have heard a lot today—and I welcome some of what the Minister said in response to my earlier amendment—about the Government’s plans for a workforce improvement strategy, but I finish by asking for an assurance that this work on improving the workforce will include the critical area of ensuring that all early years providers have had the training they need to ensure that they can offer high-quality care to disabled children.

My Lords, I spoke at length about disabled children at Second Reading and I will not repeat what I said then, so I will just make two points in support of the amendments, particularly that in the name of the noble Baroness, Lady Jones. Her amendment makes two points that take me back to our debates on the Children and Families Act 2014, when we looked at how children with disabilities and special educational needs could be properly assessed and then slotted into services that would meet their needs and give them an opportunity in the future. The first point concerns whether local authorities have sufficient facilities to provide childcare for disabled children. Then there is an assessment of the existing barriers that limit access to childcare for disabled children. I am extremely grateful to the Minister for arranging for me to bring some members of TRACKS autism to meet him and talk about some of the barriers that are in place at the moment. I raise this point so that, should I not be able to move it forward, I can at least speak on Report.

There is a lack of providers and able staff, but even when you have both those things, there seems to be a barrier in some local authorities to enabling the families to have placements. That is even where parents have jobs and want to work, and are working to pay fees so that their children can get the experience that will take them forward in their learning so that they move on to further education, often in specialist facilities, but at least with the basic communication skills that are given at that early nursery stage. I am grateful to the Minister for his interest and hope we can take this forward so that some of those issues can be resolved. In particular, in any reviews that go forward, the questions the noble Baroness raised are extremely important.

My Lords, I promise to be very brief and offer one comment and one suggestion. The comment is that there is a huge range of possible needs under SEN and we need to unpick them at some point. This is not the time to do that, but it leads to my second point. Many of the issues covered by these amendments are of a practical nature and I wonder how far study of them could be incorporated into the pilots that are proposed to be set up.

My Lords, this group includes Amendments 12 and 16. I remember well the excellent debates we had during the passage of the Children and Families Bill, and it will be no surprise that I sympathise with the intentions of the noble Baronesses, Lady Jones, Lady Tyler and Lady Pinnock, and the noble Lord, Lord Touhig, in their desire to ensure that the new entitlement is implemented in a way that meets the needs of children with SEN and disabilities.

We know that families with disabled children too often experience challenges and financial pressures in getting the service they need. That is why we have already acted—or will be taking steps—to address the issues highlighted by the proposed amendments. There is a strong legal framework in place to support children with SEN and disabilities. The Equality Act requires local authorities and other public bodies to promote equality of opportunity for disabled people. Early years settings, schools and colleges must make reasonable adjustments for disabled children, including the provision of auxiliary aids and services, to ensure that they are not at a disadvantage compared with their peers.

The Children and Families Act introduced significant reforms to the way children with special educational needs and disabilities are identified and supported. The improvements they will bring will be for all children, including those who receive childcare. Local councils will now commission support across education, health and care jointly with their health partners, publish a clear, local offer of services for children with SEN and disabilities and provide comprehensive information and advice to parents on these matters. New 0 to 25 education, health and care plans for those with more complex needs will replace the current SEN statements.

We want every family to have access to flexible and affordable high-quality childcare. We are monitoring take-up of the entitlement for two year-olds closely. In 2015, there were 2,450 two year-olds with some form of SEN or disability who took up a place within the current entitlement, compared to 1,300 in 2014. We can be confident that this is high-quality provision since the majority of children—85%—are attending settings that are currently rated good or outstanding by Ofsted. As the entitlement for three and four year-olds is universal, we do not currently collect information on why children take up a place. However, we know that 94% of three year-olds and 99% of four year-olds in England are taking up funded early education.

We are funding a number of projects to increase the number of good-quality and flexible childcare and early education places for disabled children: for example, 4Children’s project to build on the success of childcare hubs and Family Action’s work to support more school-based childcare for children under five with SEN and disabilities. We are also building on the Family and Childcare Trust’s parent champions and outreach work to increase the number of flexible early education and childcare places for disadvantaged families.

The Government are committed to building a highly skilled workforce for all children. All early years childcare providers must have in place arrangements to support children with SEND under the accountability framework that they are assessed against. The current early years teacher standards require that all new early years teachers have a clear understanding of the needs of children with SEND and are able to use and evaluate distinctive approaches to engage and support them. Similar arrangements apply for schoolteachers.

To ensure that providers and local authorities are equipped to deliver the expectations of the new code of practice, we are funding a number of projects to better equip the early years workforce to support children with SEND responsibilities. These include: funding the National Day Nurseries Association to build on local systems for self-improvement through SEND champions; the Pen Green Centre, which supports a model of peer-to-peer training; and the Pre-School Learning Alliance, to build mentored workforce development networks. More broadly, the SEND gateway, established by the National Association for Special Educational Needs, provides information and training resources for education professionals across early years, schools and further education. Through our voluntary and community sector grants programme, we are also funding the NASEN to develop online learning to help practitioners effectively to identify and meet the needs of children with SEN.

To make sure that we fully understand the issues that families face, we will engage with parents and providers to find out more about how they currently access and deliver childcare. We want to hear their views on how the extended entitlement could best meet their needs. I am pleased to say that we have already received a number of responses from groups representing and supporting disabled children and their parents, offering to host consultation events for parents and providers. We will continue to work with providers to identify what more can be done to ensure that early years settings are building inclusive and accessible services for parents with disabled children. I shall take back the idea put forward by the noble Lord, Lord Sutherland, of making sure that providers for disabled children and the needs of disabled children are factored into the pilots.

As the Committee has heard, funding and affordability is a significant issue for many parents of SEND children. Local authorities must have the flexibility to provide support according to the circumstances in their area. They are able to set higher funding rates for provision that involves additional costs, including costs for children with SEN or disabilities, and can use their high-needs budgets to fund provision for children with additional needs, including those in specialist settings. Some in the sector have expressed concerns over the higher costs of supporting children with SEN and disabilities. The funding review will, of course, consider the additional costs, funding and support required for children with SEN and disabilities. We would welcome any evidence that the Special Educational Consortium can submit to the review on this issue and we will be happy to work with it—indeed, my officials have already met its representatives.

I am in agreement with the noble Baronesses, Lady Jones, Lady Tyler and Lady Pinnock, and the noble Lord, Lord Touhig, about the need for concentrated action to ensure that the Government implement the new entitlement effectively for children with SEN and disabilities. As I have described, much of this is either in hand or about to take place. However, in view of the importance of ensuring that there is equal access to the new entitlement, I would welcome a conversation with noble Lords outside this debate.

I hope that I have reassured noble Lords, and therefore urge the noble Baroness to withdraw her amendment.

My Lords, I am grateful to the Minister for suggesting that we can have a further conversation about this, and that may be the way forward, because I think that there are some issues that still need to be explored. I think that there is a problem with saying that we already have a legal framework in place, and that therefore there is no problem, per se. It is one thing to say that you have a legal framework and another to look at the practicality of what is happening on the ground. We have to marry those up in some way—so, if we have a legal framework but parents of disabled children are not accessing it, we have a problem, and we really need to get to the heart of why that is the case.

I am pleased to hear that the funding review will consider the issue. As I said in opening the debate, the call for evidence does not explicitly say that we want to hear from parents of disabled children. I think the noble Lord is saying that that will be done as a separate exercise or a parallel exercise. If that is the case, I am very pleased to hear that. Rather than just assume that parents of disabled children were responding to a general call for evidence, we need to go and seek them out in a more targeted way.

There still is an issue about staff training, where ILEA staff feel that they do not have the skills or confidence to deal with some of the disabled children who might otherwise be able to attend their facilities in a perfectly happy and healthy way. All of this needs to be explored in more detail, and I very much welcome the suggestion from the noble Lord, Lord Sutherland. In addition to trying to gather the evidence through the funding review, some specific work on the pilots, which really look at that on the ground, would help us all. In the mean time, let us have a conversation outside this about what more we can do. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendment 13 not moved.

Amendment 14

Moved by

14: Clause 1, page 1, line 18, at end insert—

“(3E) In order to ensure the effective implementation of the duty under subsection (1), the Secretary of State shall establish an independent review of the free childcare entitlement funding system, including a large-scale analysis of the cost of delivering funded places.

(3F) The review established under subsection (3E) shall consult local authorities, childcare providers, employers, parents and others with an interest.

(3G) The Secretary of State must establish a comprehensive and sustainable funding solution taking into account the findings of the funding review to address the funding of existing childcare and the additional requirements on childcare providers arising from this legislation.”

My Lords, this amendment seeks to explore in more detail the purpose of the funding review announced by the Government, the extent to which real evidence will inform its findings, and the need to find a fully sustainable solution to the funding crisis.

At Second Reading there was a general recognition that the funding of the existing 15 hours of free childcare was unsustainable and would not survive an extension to 30 hours. There was also considerable evidence given to the Affordable Childcare Select Committee on this matter. This was subsequently echoed by the Pre-School Learning Alliance and others, which made a persuasive case to show that the hourly rate was so low that nurseries were able to provide the free hours only if they did so at a loss and cross-subsidised the payments from additional hours elsewhere. To be fair, the Government were quick to identify that this was a problem and announced the funding review soon after, and, of course, this is to be welcomed. However, serious questions remain about the conduct of the review, and this amendment seeks to explore these issues further.

First, the call for evidence asked parents and providers to send in any information that they wished to provide to inform the review, such as existing studies on the cost of childcare and the factors that make up the cost. That is okay as far as it goes, but where is the analytical research that needs to underpin a review of this nature? What we do not want is a whole series of anecdotal stories, important though they are. Surely what we need is a proper, independent study to investigate and evaluate the cost of provision across the different providers, how much the current shortfall is estimated to be and what the full cost of providing a fully funded, sustainable system would be. For example, it would be helpful to know how the Government will calculate the number of parents they expect to be eligible for these payments. Will any capital funding be included to allow for the expansion of premises or the creation of new premises? Will the calculations allow for any increase in staff pay, which providers say is necessary to recruit and retain staff? Will the assessment end the historic disparities in payments between the different local authorities? I could go on, but the point is that to do this properly requires a major piece of research, and I am not convinced that this is what the Government have in mind.

The Minister said in the policy statement:

“Between now and September 2015 the Government will be considering the simplest and most effective way to deliver the additional 15 hours of free childcare to working families. This process will be led by the Minister for Childcare and Education and the Government Task force on Childcare. The Government will provide a full update on this at Report Stage in the House of Lords”.

Again today, the Minister has confirmed that the funding review will be completed by September. This hardly allows time for a proper inquiry to be carried out.

There is then a question about how any increase in the payments to parents will be funded. The Pre-School Learning Alliance estimated that it would cost at least 20% more than the original estimate of £350 million; and, as we know, the Children’s Minister was at one stage talking about a figure over £1 billion. So there is an urgent need to clarify where any additional money will come from. Will the Minister confirm that it will be new money, not money drawn from existing budgets, and will arrangements be made to increase these sums year on year?

This amendment seeks to tease out more information about the nature and scope of the review, who will be consulted, what the timetable will be and how the outcome will be financed. It goes without saying that we welcome the Minister’s reassurance that this House will have an opportunity to consider the outcome of the review and its impact on regulations as proposed by the Delegated Powers Committee, and we look forward to further debate on this in that context. In the mean time, I beg to move.

I shall speak to Amendment 30 in this group which is tabled in my name and that of my noble friend Lady Tyler of Enfield. For a serious new investment by the Government, it is disappointing that there is no indication in the Bill of the funding package that will be available for its implementation, because the funding is critical to the nature and quality of the childcare that will be provided. I welcome the funding review that has been opened, and I am delighted that the Minister has already received more than 500 responses to the request for information, but that simply shows the nervousness of the sector over the funding package that may be available.

I know from comments that have been sent to me by various childcare providers that they are very worried that if the funding is not of the right size, the implementation of what is otherwise an excellent proposal will be seriously damaged. There are several reasons for this. We do not know the quantum figure. We know that two figures have been bandied about. One is £350 million, which was mentioned in the Government’s manifesto, and the other is more than £1 billion, which was mentioned prior to the election period. The figure surely must be more than £350 million in order to fund an additional 15 hours of childcare for three and four year-olds. I hope the Minister will be able to explain where the money will come from, even if he is not able, at this stage, to tell us the total figure that will be available.

The other significant issue is that providers will not know the hourly rate that they will get for providing this childcare in the different settings. We know the rate is determined through local authority school forums and that they get the grant via the early years element of the direct schools grant. We also know that that is a flawed system. It is not necessarily a fair distribution of funding to local authorities across the country. We end up with different hourly rates for different childcare providers in different parts of the country which may not be sufficient to meet the costs of provision in those areas. I hope the Minister will be able to throw some light on this area.

There is going to be a significant demand for capital expenditure. For instance, providers in the state sector in nurseries attached to primary schools currently provide 15 hours through a morning session and an afternoon session. If there is going to be only one session of 30 hours, there will need to be a 50% increase in the amount provided. Capital funding will be necessary to do that, and it would be good to know whether any capital money is going to be available for either the voluntary or the state sector to do that.

The last point I want to make is one I raised at Second Reading, on the question of cross-subsidisation. Currently, parents who are working full-time may have to have childcare from eight in the morning to six in the evening. It is obviously quite proper that they have to pay for some of those hours, but people have been telling me that in the hours outside the free entitlement, they might be paying up to twice as much as the hourly rate in order for the private provider to meet the full costs. If, therefore, a private provider or voluntary sector provider is providing not 15 hours but 30 hours free, where is the cross-subsidisation going to come from? I am confident that the Minister, through his request for comments on the funding review, is receiving in his inbox many expressions of concern about the hourly rate that will be necessary to ensure these childcare providers are viable. For those reasons I have tabled the amendment in my name and that of the noble Baroness, Lady Tyler, and support the comments that have been made by the noble Baroness, Lady Jones.

My Lords, I also have an amendment in this group. Part of it follows from what the noble Baroness was saying. Cross-subsidy—or top-up fees, as it would be more honest to call them, although we pretend that they do not exist—is a problem. As has been established in this Bill so far, that will be a problem if 30 hours becomes the limit and you cannot charge below that for the settings in question.

I am actually really interested in another thing, which is not just money. I do not believe all the problems in the world are solved by money. One of my objections when I saw this Bill published arose when somebody said, “Here’s a great idea. We’ll throw an unspecified amount of money at it and the world will be a better place”. It is not quite as easy as that and what matters are real people, real places and things that actually happen on the ground. This is a fantastically diverse sector, as both my noble friends on the Front Bench have rightly recognised. Of course, I am biased, because over the last 30 years I have come to know hundreds of people who work in the informal education sector, in nursery care, for whom I have huge affection and admiration. They are good educators; women with vocations; people who are passionate about children; but maybe those settings do not all live up to the standards you might want if our country had been erased and you were rebuilding it—they would not be like that. But they are there—in the little church halls, the village halls and parish halls up and down the land—and they are small settings. It may be nine or 10 people who work hard, and the skilled and dedicated principal and manager does not have all the time in the world to fill in forms.

What this amendment is getting at is something that I think is so important. I know my noble friend says that he wants to address this issue—I appreciate what he said both inside and outside the Chamber—and does not want to cause problems for this sector, but a huge number of providers simply could not provide 30 hours of childcare a week, because the constraints of where they provide it do not allow for it. We really should understand, as I ask in this amendment, how many nursery and childcare providers operate in rented premises or private places. These are the people who are under threat. What proportion of nursery and childcare providers could not offer this wonderful 30 hours a week that we talk about in this House and which we would all love to see?

There is another very important interest group, which is the other part of the big society—the village halls, parish councils, community buildings, sports clubs, community clubs and other groups that offer those premises. Very often those schools, nursery providers and settings are a hugely significant part of their revenue. If the good old state comes lumbering in and says, “These people won’t be able to provide 30 hours, so we’re going to go and provide support for somebody else”, some of those places will begin to shrivel and wither on the vine, and may disappear. Not only will the richness and diversity of nursery education be threatened but so will part of the warp and weft of society in the villages and local communities across the land.

I may be unnecessarily worried, but I know that a lot of providers out there are worried about this, and we should cherish and nurture them. There is nothing about that in the call for evidence. Who will speak up for the church halls and places like that? There is nothing about the impact of hours and the possibilities with regard to settings. I urge that we use this extra time to consider this very carefully.

I did a small test and looked at the family information service of four councils taken at random, because I could get to them quickest on the internet. I did not mention 38 weeks in my amendment, which is the other thing that was mentioned. If you look at the PVI sector in each of those four councils, more than half of them were not providing either 38 weeks or 30 hours. If you then look further, you find that they are a church hall or parish hall, and it is very easy to infer that it was not possible—it probably was not because they did not want to do it. I did not look at my own authority, but I bet that if you did that would also be true.

This is perhaps my one opportunity to make this plea, which I mentioned briefly at Second Reading—I apologise for trespassing for so long on your Lordships’ time at this hour. These are good people, good settings, some of the things that bind society together and which bring hope to people. Let us understand, when we make policy, the reality of life on the ground—the people who go on buses in the morning to get to these little centres, the people who open them up, those who book the halls and have to balance the time they give to their choir against what they can give to the nursery school. This is the reality of life in our land, and how the voluntary world and the informal world make good education happen. Please may we take that into account?

My Lords, I will speak to Amendments 14, 30 and 32 regarding the review of the cost of childcare, the funding rate to deliver early education places and the impact of the additional entitlement on providers.

I appreciate the concerns that the noble Baronesses and the noble Lord are trying to address through Amendments 14 and 30. I agree with them that a review of the cost of providing childcare is needed and that providers should receive a fair funding rate to deliver early education places. This is particularly important as we move forward to extend the free entitlement to 30 hours for working parents of three and four year-olds. In order to do this, as we discussed, we are conducting a thorough review. The review will report in the autumn and will inform our decisions on the level of funding that providers require to deliver quality childcare, and as I said, we will report on these findings by Report.

The Government have committed to a funding rate that is fair and sustainable for providers and meets the needs of a diverse market—we were the only party that committed to increase the rate. The findings from the review will inform what that rate should be. This is a complex issue which will be looked at both by experts across government and by an external team of experts. Their role will be to support the review process and validate their findings. A call for evidence is already under way, and as I have said, we have already received more than 500 responses. With regard to how we will pay for that, it will be funded by restricting tax relief on the pensions of higher earners.

The noble Baroness, Lady Pinnock, talked about the scale of the increase facing us. We have introduced an offer relating to two year-olds and raised the offers for three and four year-olds from 12 to 15 hours, and the sector has coped well with that. However, the increase is nothing like the 50% that she spoke about. Many children will be in reception classes in primary schools at the age of four and many will already be taking up the offer—parents will be paying for it themselves—so the challenge is not as great as it might appear at first blush. As I say, we are confident that the sector will be able to respond. I hope that the noble Baronesses and the noble Lord will agree that the Government’s firm commitment in respect of the review and funding for early education addresses their concerns. I therefore urge them not to press the amendments.

Amendment 32 is in the name of the noble Lord, Lord True. I understand the noble Lord’s concern that the additional provision may have a negative impact on some providers, many of whom will provide a valuable service to their local community. As I mentioned earlier, I am happy to confirm that we do not envisage that any provider will be forced to provide places. While the number of providers offering places under the existing entitlement continues to grow, it is true that some choose not to do so. Parents may choose, as some do already, to receive their free entitlement from more than one provider. The existing entitlement of 15 hours per week for disadvantaged two year-olds and for all three and four year-olds will of course remain. We will keep all aspects of the delivery of the new entitlement and all the different types of providers under observation and careful consideration but it seems to us that a report such as that suggested by the amendment would be wholly disproportionate. It would be very intrusive into the private business affairs of providers. I hope that this gives the noble Lord the reassurance that he seeks and I therefore urge him not to press the amendment.

I thank the Minister for that response. The difficulty is, I think, that there is a great deal seemingly riding on the funding review and we are all trying to piece together what will be in it. Originally we were referred to the call for evidence, which we have of course looked at, but it does not give a great deal away and, as I said earlier, the evidence that it is calling for is very generalised. There are some quite specific issues that we want the funding review to look at, such as capital funding, the historic disparities between local authorities and where the money will come from—I note that the Minister said that it would be paid for by the tax relief but, if it turns out that it costs more than the original assumption, where will that extra cash come from? I give those issues as examples.

This is the last opportunity that we will have to talk about the funding review before we see the findings—according to the timetable now, we will see the findings on Report—and our last chance to influence what is in the funding review. Given that, it would have been, and still would be, helpful to see the terms of reference so that we know exactly what is in them, what is being looked at and what is excluded

I was very taken with the examples given by the noble Lord, Lord True. You cannot assume that some of these providers will find their way to us if we do not ask them to give us the evidence to help get a full picture. I am pleased to hear that there are experts in and outside of government, but I would love to know exactly what they will be doing. I do not want everything dotted and crossed, but a bit more of the flavour of what exactly is going on with the funding review would be really helpful while we still have a chance to encourage people to participate in it and before we finally get a chance to debate the outcome in October. We have moved a little way forward but I think that we still have a way to go on some of these issues. In the mean time, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Amendments 15 to 17 not moved.

Amendment 18

Moved by

18: Clause 1, page 2, line 11, leave out paragraph (g)

My Lords, this is one of the many clauses about which the Delegated Powers Committee was scathing. Regarding the proposal for the establishment of a body corporate, it said in its report that the government memorandum,

“explains little about why a new body might be thought necessary or about the nature of its proposed functions”.

I am rather glad that it said that because our inquiries at Second Reading received a similarly blank response.

Since then, there have been some developments. I am very conscious that the Minister said before we started this debate that the Government had had some second thoughts on the amendment. I could spell out in more detail why we thought that the measure was not a sensible idea but I am sure that the noble Lord has something useful to say about it. Therefore, rather than pre-empt that, I should be interested to hear what he has to say.

Amendment 18 agreed.

Amendment 19

Moved by

19: Clause 1, page 2, line 22, leave out paragraph (k)

My Lords, of all the issues on which regulations might be produced, as listed in paragraphs (a) to (k) of Clause 1(5), this is the one that has caused the most concern and disquiet.

Our Amendments 19 and 22 would remove the new powers to create new criminal offences leading to imprisonment of up to two years. On the face of it, this appears to be draconian and unnecessary, and we would like to explore the thinking behind it in a great deal more detail.

The Government say in their policy statement that it is their intention to align these new offences with existing schemes involving information-sharing and self-declaration. However, as the Delegated Powers Committee points out:

“There is nothing on the face of the Bill or in the memorandum … identifying the categories of person from whom the information … might be required”.

It goes on to say that the Government have drawn a confusing analogy between their proposals and the 2006 Act, the latter being about childcare premises rather than about the provision of information.

The truth is that we do not know who might be covered by this possible regulation. Would it be individual parents, individual nurseries or childminders, or even local authorities? How severe would their crime need to be? At Second Reading, a number of noble Lords identified how confusing and contradictory the current childcare funding landscape is proving to be. Parents of children aged two, three and four all have potentially different entitlements. The scope for uninformed errors is considerable.

We do not feel able to agree to a part of the Bill that gives so much power to the Secretary of State to determine who will be criminalised in the application of the Bill. Our amendment therefore removes this paragraph. It is a probing amendment but we would need a considerable level of reassurance about the constraints of its application before we were able to support the original text at Report stage. I beg to move.

My Lords, I raised this matter at Second Reading and, having raised it, it had rather more publicity than I expected. I had a very large number of expressions of concern on the subject. I had tabled an amendment but, seeing that the Opposition had also put one forward, I saw no need to persist with it. However, I think that a very clear answer is needed both on the range of possible forms of entitlement, which we discussed in relation to an earlier amendment, and in relation to the informality of a number of the settings which I described when debating the previous amendment. The fear of criminal offences and potential imprisonment is quite chilling for people who work in this sector.

My Lords, the noble Baroness, Lady Jones, and the noble Lord, Lord True, seek the removal of a power to create criminal offences. The Government’s position on this issue was set out in the policy statement that was made available to all Members of this House last week. We take the security of personal information seriously, which is why Clause 1(5)(k) enables regulations to make provision for any criminal offences in connection with the provision and disclosure of information or documents mentioned in subsection 5(i) and (j). These paragraphs relate to the sharing of information and provision of documents for the purpose of checking eligibility for the free childcare provision.

Members of this House will understand that the Government’s intent is to ensure that personal information, which will often be sensitive, is not disclosed to those who have no right to see it. Making the unlawful sharing of personal information a criminal offence sends a very clear message about how important it is to keep the information safe and confidential and that it should be used only for the purpose for which it is collected. As far as we know, no one has been prosecuted under the equivalent provisions in the Childcare Act 2006. That does not mean that the offences are not necessary, rather it demonstrates that the information has been successfully protected. We want to ensure that the same culture of information protection continues in respect of eligibility checking for the additional childcare, which is why we intend to create this offence.

Amendment 22 seeks the removal of Clause 1(7). This provides for a cap on the penalty that may be imposed on indictment for a criminal offence created in connection with the unlawful disclosure of information. That seeks to limit the penalty to a maximum term of imprisonment of two years, with or without a fine. The Government believe that this provides an appropriate safeguard to set a maximum level of penalty, while retaining the option of imposing lesser penalties. Such a power is analogous to the power in Section 13B of the Childcare Act 2006, so there is a precedent in terms of the existing entitlement should it need to be used.

At Second Reading and again today, my noble friend Lord True also cited his concerns. I should like to reassure all noble Lords that the Government intend these provisions to be limited in scope and only for the purpose that I have outlined. They are not intended as a threat, for example, of penalties for staff and providers who fail to disclose confidential details of their businesses to local authorities, which was, as I recall, one of the concerns of my noble friend. Similarly, we have no intention that these provisions would be used as a threat against parents.

I am sure that noble Lords will agree that the protection of personal information is an extremely important matter. Without the power to establish criminal offences, the protection of those data will be significantly undermined. As I have said, we would intend these provisions simply to replicate offences that already exist for the 15 hours of free early education that children already receive. I therefore hope that the noble Baroness will withdraw her amendment.

My Lords, I do not expect an answer now, but I should like to give an example which comes from the policy statement. It says that under Clause 1(5)(i), the number of hours of free childcare each eligible child takes up may be included. That can only come from a report provided by the provider, which is sometimes a small provider. Inadvertently false information may be given; it could be a mistake or something might be put in the wrong column—things happen. The next paragraph in the statement, which concerns provision for criminal offences, directly relates that to the provision and disclosure mentioned in Clause 1(5)(i) and (j). It may be that the example given is not included in that, but people reading this document could believe that there is scope for the offence to be pushed too wide by certain busybodies. I do not want to continue the point now but I hope that we can have further discussions on that matter of concern.

I share the continuing concern of the noble Lord, Lord True. I have to say that the noble Baroness did not address the concerns raised by the Delegated Powers Committee. I know that, separately, the Government have given an assurance that they are going to look at that. However, she will know that they raised some concerns about the analogies being drawn between the 2006 Act and what is in the Bill now. I am not convinced by what the Government have said on this matter so far. I think that we need to have considerable further discussion on this, but I am prepared to allow the noble Baroness to look at the Delegated Powers Committee report and respond to that, and then perhaps we can have a more informed discussion. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

House resumed.

House adjourned at 10.05 pm.