Thursday 29 October 2020
The Grand Committee met in a hybrid proceeding.
Arrangement of Business
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering except when seated at their desks, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
The microphone system for physical participants has changed. Your microphones will no longer be turned on at all times, to reduce the noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same.
Education (Exemption from School and Further Education Institutions Inspections) (England) (Amendment) Regulations 2020
Considered in Grand Committee
My Lords, it might appear slightly incongruous to be discussing today the lifting of an exemption from routine inspection that applies to certain outstanding schools and colleges at a time when Ofsted’s routine inspections are suspended in light of the coronavirus pandemic. In September last year, when the Government announced the intention to see the exemption lifted, we obviously could not have anticipated this situation.
The pandemic has highlighted the vital role that schools and colleges play in the lives of children and learners, supporting not just their education but also their well-being. I pay tribute to the exceptional hard work that has enabled leaders and staff to meet and overcome so many challenges. There will be much to do to make up for the lost education that has occurred because of the pandemic, and Ofsted inspection will play an important part in this through the challenge and support it provides.
Routine inspections are currently suspended, and we are keeping under review the timing for their resumption in the light of our response to the pandemic. When the time comes to restart Ofsted’s routine inspections, we believe, perhaps more than ever, that they should apply to every category of school and college. That is why this debate and these regulations are important.
As noble Lords will be aware, Ofsted was founded on a principle of universal inspection. The introduction of the exemption in 2012 represented a significant departure from this, but it was designed to reflect the need to increase autonomy and freedom and enable our best schools and colleges to focus on providing excellence, with Ofsted’s inspection being concentrated where it was needed most. That policy has borne fruit: standards have risen, with 86% of schools now rated good or better, up from 68% in 2010.
The principles of autonomy and trust in our best schools and colleges to educate effectively remain relevant today, but must be balanced against the need to ensure that inspection arrangements support improvement most effectively and offer an appropriate level of reassurance to parents, schools, colleges and the public more generally. Here, we believe, the balance has now tipped in favour of universal inspection. Many exempt schools and colleges have not been inspected for a considerable time, in some cases over a decade. Of these, some were judged outstanding under previous Ofsted inspection frameworks, which placed different expectations on them. This is starting to erode confidence in the outstanding grade.
However, this is not just about loss of confidence; it is also about the opportunity that Ofsted’s new education inspection framework presents in supporting improvement. The new framework, introduced in autumn last year, is a real step forward. It strengthens the focus on having a carefully considered and sequenced curriculum as well as making improvements to judgments on leadership, personal development and behaviour.
Removing the exemption now will mean that schools and colleges can benefit from having an independent assessment under Ofsted’s new framework, and that parents, students, schools and colleges can benefit from having the up-to-date rounded picture of quality and performance that only regular inspection can provide. Noble Lords will be reassured to learn that the sector has given its support to our proposals: in response to our public consultation, around 90% of respondents agreed with the removal of the outstanding exemption for schools and colleges, and around 80% agreed with our proposed approach to doing that.
I thank the Secondary Legislation Scrutiny Committee for its consideration of the regulations, which revoke the current regulations that provide the exemption, meaning that all outstanding schools and colleges will once again be subject to routine inspection. They also introduce requirements for when routine inspections of former exempt schools must take place. Specifically, the chief inspector will be required to carry out an initial inspection of these schools before 1 August 2026.
In some cases, where the initial inspection shows that outstanding performance may not have been maintained, there will be a follow-up inspection before 1 August 2027. However, thereafter, subsequent inspections must take place within the five-year window that applies to other schools. The timescales for college inspections are not prescribed in the regulations but, as a matter of policy, will follow a similar approach to schools. As I mentioned earlier, our intention is that the resumption of routine inspections for former exempt schools and colleges will align with the planned general restarting of Ofsted’s routine inspections. These regulations do not signal that resumption; they simply enable it to happen at the appropriate time.
Given the strong public support for the proposals, the benefits that a return to universal inspection will bring and my reassurance that, in deciding when to resume the routine inspection of outstanding schools and colleges, we will of course remain sensitive to the impact of the pandemic, I hope that noble Lords will also be supportive of these regulations. I am sure that we will all wish to ensure that all schools and colleges can benefit from having an up-to-date picture of their performance once the exemption is lifted and routine inspections return. I beg to move.
My Lords, I shall limit myself to speaking about the inspection of schools. This is an issue that has been debated for many years, and now we are in unusual circumstances with Covid-19, which could influence how inspections are carried out when they resume. Years ago, when I was a teacher and school governor, the role of inspections was discussed intensely. One argument was that too much inspection could cause disruption to teaching and the running of schools. It made staff nervous and encouraged them to prepare specially for inspection visits. In theory this should not have been necessary, but it was a huge distraction. The future of a school could depend on an inspection report. As such, we moved to the current system of inspections every five years, with exemptions for outstanding schools, unless there were concerns about a particular school.
Today’s amendment regulations remove the exemptions and require these outstanding schools to be inspected routinely every five years. What are the arguments for this? First, schools can change rapidly due to factors such as a change of head teacher, substantial turnover of key staff or change of intake. Secondly, Ofsted’s frameworks for inspection have expanded in relation to, for example, greater emphasis on the importance of pupils’ emotional and social development and relationships within schools. In June 2019, Ofsted’s chief inspector called for the exemption for outstanding schools to go, with Ofsted stating, in relation to the 2018-19 academic year, that:
“Only 16% of outstanding primary and secondary schools inspected this academic year retained their top Ofsted rating”.
I have recently spoken to educationalists who believe that schools should not be inspected in the midst of Covid-19 until all pupils have attended school for at least a full year because schools should be focused on providing a safe environment for pupils and staff. Managing schools at the moment requires constant vigilance and adaptation in accordance with circumstances. They should not be distracted from this by Ofsted inspections, and Ofsted should not be expected to carry out its usual duties. The focus should rather be on providing safety and a productive educational experience for pupils in school and those in remote learning.
However, Ofsted could make visits to schools when they return, identifying good practice in some aspects of a school’s offering, such as the use of pupil premium funding and a broad and balanced curriculum, including the arts, humanities and foreign languages for all. Such inspectoral reports could be turned around quickly and serve as models of good practice for sharing with other schools. Ofsted inspectors could also visit parents who are home-schooling during Covid-19. They could assess the needs of such households: computer availability and online lessons, for example. Home-schooling is not, generally, well regulated. Good practice and limitations during a difficult time could provide valuable experience for sharing. I look forward to the Minister’s comments on these concerns.
My Lords, as the noble Baroness suggested when she introduced these regulations, they are not something that most of us would find objectionable. Indeed, most of us would say that they were not before time. In a regime where inspection is supposed to be a good thing, it is something of an anomaly that schools can go a decade without being inspected. I suspect there would be almost universal agreement on that.
The real question is: what are the inspections going to achieve? The noble Baroness, Lady Massey, touched on one or two of the things I was going to mention. What is the process? What are you examining? If we hope that schools are not just exam factories, what else are we doing here? What of the outside bits and how are they being addressed? We really must call this to the attention of everybody involved. We need to know what else we are getting out of this. Exams are nice and easy to assess—pass or fail, grades at a certain level, done. They are rubber-stamped and you move on. However, there has been a growing consensus that we have put too much attention on this in recent years. Can the Minister give us some idea of what else we are doing and what else will be inspected?
My particular interest is in special educational needs. I do not know if, after all these years, I still have to declare my interests, but I will. How are we dealing with this? For instance, given the most recent situation, how are we learning to use computers better? Many people who have special educational needs will in later life—after school—mitigate their downsides by using computers. How good are we at making sure that people are introduced early on to using this type of technology? There is no one set way of doing this. How are we looking at it? How have we worked it through? This is directly relevant to the recent experience of people having to work online.
I welcome the main thrust of these regulations. If you are going to have an inspection, it should be regular and no group should be removed. The idea that somebody has got to the top once and is not inspected again is a bit like saying in a sport that, once you have got promoted, you can stay there. It does not work. Standards can slip. Can we just have a look at what else comes here?
My Lords, I declare my interests as set out in the register. In welcoming warmly this new instrument to ensure that all schools are subject to inspection in the same way, we recognise the continuing value of inspections as a whole. I want to associate myself warmly with the comments made by the noble Baroness, Lady Massey, and the noble Lord, Lord Addington. However, although we welcome this instrument, we would also welcome the further postponing of Ofsted and school inspections, including the Section 48 inspections of schools with a religious designation, throughout the pandemic period.
As we all know, these are exceptional times and there are extraordinary levels of pressure for all, meaning we must adopt a unique approach, tailored to the circumstances. I note that where schools have been exempt for a long period they could well have a heightened sense of stress about the reintroduction of inspections, simply because it is an experience they have not had for a long period.
Considering the well-being of those working in schools should be of primary importance, all the more so given that head teachers and schools are already experiencing unusually high levels of pressure due to the pandemic. This unprecedented environment of stress and difficulty for teachers must be acknowledged by the Government in the choices they make. Therefore, I urge that consideration is given to further postponement of the resumption of the inspections regime. This would communicate an apposite awareness of the circumstances schools are facing and a necessary level of care from the Government by valuing the welfare of teachers, supporting them in their work and alleviating any undue stress.
Does the Minister agree, especially at this time when there has already been so much pain, confusion and stress caused by the pandemic, that our politics must be compassionate? We must look after those educating the nation’s children by adopting a supportive approach for schools. I ask the Minister how the skills and expertise of Ofsted staff will be used to support schools known to be most in need of improvement so that, when inspections recommence, those schools are at least operating satisfactorily and with a vision that they can become outstanding themselves.
My Lords, I declare my interest as editor of the Good Schools Guide. I congratulate the Government on their decision to bring forward this regulation. In a system with a lot of leeway given to individual schools and multi-academy trusts, inspection is a crucial way of checking on problems and of spreading good practice. The inspection corps can do neither as well as they should unless they see outstanding schools regularly, because that keeps them up with best practice and gives them a yardstick against which to measure other similar schools that are not doing as well. It gives them a fund of experience and anecdote with which they can encourage schools that they are visiting that could be better schools.
I hope that, in time, the Government will consider moving back to the old—I mean very old—system of annual, informal visits from inspectors. Things move fast. The requirements and the interests of education are not best served by four-year intervals between inspections. We are coming up to a period now where schools will have been through the shock of Covid. In various ways, they will have had to have dealt with online learning. There may be a lot of learning and a lot of change to come from that. Not to have the benefit of an experienced inspector’s visit for four years is a great waste of that opportunity.
When the Government encounter things they would like schools to come up to speed on—for example, the exemptions under the Equalities Act or the proper inclusion of black history in the curriculum—again, four years is a long time for the country to wait before the Government know whether these things are being performed, carried out or taught in the way in which they would hope.
I also think that a system of light-touch inspections—just a day or half-a-day’s visit—would give parents much more confidence in how their school was going. It would mean that small wobbles in otherwise good schools were dealt with easily, informally and quickly without the whole weight of an inspection team descending on the school. We would need fewer big inspections, and I would hope overall it would be a cheaper system.
My Lords, the arguments for and against this regulation are finely balanced—more finely balanced than some of my colleagues have suggested. When I was Minister for Schools, our principle of action was intervention in inverse proportion to success. There are so many problems that we have to confront in the education system and there is such a big problem still in the English education system of the long tail of chronic underperformance that the arguments for investing finite resources—and good inspectors are a finite resource—on schools that are clearly successful does not seem to be worth while on a cost-benefit basis.
Having said that, when I was Minister we inspected all schools and I can hardly complain that the present Government moved to a system where they exempted a whole category of schools from inspection. I supported that move at the time, as it was the direction of travel in which we were moving. It is not the case that you do just one or the other. You can tell pretty well from data what is happening to school in terms of standards. It sounds as if this decision is now firmly taken, but these things are constantly under review, particularly in this crisis.
However, I would have preferred it if we did not move to a wholesale system of devoting Ofsted resources to clearly successful and outstanding schools and did so only either when the data gave cause for concern or, crucially, where there are parental complaints. Parental complaints are always a good guide to when there are issues in a school that need external intervention. I simply say that to the Minister to bear in mind in the next iteration which will come with these regulations.
However, my bigger concern is that all this is beside the point at the moment. We are in the middle of a crisis, where no inspections are taking place, as the noble Baroness said. It is not the case that the school system will get back to normal, as we had all hoped, in a month or two; it now looks like it may not get back to normal for another year. Meanwhile, inspections closed down entirely in that period.
The issues at stake are significant and urgent. I will make some suggestions to the Minister. It is always important to understand what went wrong in the past and what we can get right in the future. In my view, a fundamental mistake was made in March and April in closing the school system down. Legally, all state schools were closed in March. That was a fundamental mistake. I am not just saying that in hindsight; I said it at the time. It might have been the case that some schools could not operate physically—although, as it happens, I think it was a mistake to close all schools physically in March and April—but there should have been the expectation that schooling would continue as near to normal online. That did not happen in the beginning.
The Government have corrected that now with the continuous learning provisions, which mean that where schools cannot continue physically there will be online learning, but at the moment Ofsted is playing virtually no part in this process at all. My concluding suggestion to the Minister is that Ofsted should play a part in this. It is producing some guidance, and I understand from reading the new regulations that have been issued that it is monitoring the performance of schools in online learning. However, I do not think that this is enough if we are to be in this situation for many months. I will make three specific suggestions to the Minister about what Ofsted should be doing over the coming months while we are still in the Covid-19 crisis.
First, Ofsted should be not just giving advice, but grading all schools by the quality of their online learning, a good deal of the assessment of which can, by definition, be done without needing to visit the school, although I think some visits to schools would be perfectly appropriate in this instance. Secondly, it should be highlighting best practice for the provision of online learning away from school, including best practice in use and provision of IT, and the provision of wi-fi where that is not available. Thirdly, it should be not only highlighting best practice, but naming the best schools in the country in provision of education during the coronavirus pandemic so that other schools can imitate them. In my experience of education, imitating the best is the best way of levelling up.
My Lords, it is a pleasure to follow the noble Lord, Lord Adonis, with whom I strongly agree on some things and strongly disagree on others. I strongly disagree with his suggestion of further grading of schools, but strongly agree with his suggestion about the sharing of best practice.
It might seem strange that a Peer from a party that wants to abolish Ofsted should welcome a statutory instrument ending exemption from Ofsted inspection for some schools. I speak today to do just that, for the assumptions behind the exemption were an illustration of the deep faults and failure of the philosophy that has underpinned the operation of Ofsted, and, indeed, our entire education system, for decades. At the base was the assumption that schools were competing against each other in league tables, chiefly for exam results, but also for the Ofsted ratings that were closely related to them. Schools that managed to get those results, aided by their ability to perform and show themselves to the best advantage for a day or two, could clear the bar of outstanding and then be assumed to be in a special category, able to run off into the sunlit uplands away from Ofsted.
Meanwhile, their peers that did not do so faced the regular descent of the terrifying ordeal of the inspection. I speak as a former school governor, so I have some experience of this. The price of so-called failure was often the forced loss of local control, or at least the need to fight hard to fight it off. Moulsecoomb Primary School in Brighton, which I follow closely through my noble friend Lady Jones of Moulsecoomb, whose interest in the matter is obvious, conducted a poll in which 96% of respondents were opposed to forced academisation, yet still the push continued.
This ranking and testing has been and continues to be profoundly damaging, while also—as the statutory instrument implicitly acknowledges—failing to recognise that things can go wrong in a school very quickly. Parents have been encouraged to compete, to use their knees and elbows to get their child into a school based on this magic talisman of “outstanding”, which has very little meaning and often reflects the socioeconomic circumstance of the pupils.
Of course, as several other noble Lords have noted, Ofsted is an institution with its own problems. As the Accountability Commission noted, inspectors were being spread too thinly, judgments were often dubious and reporting unreliable. It is built on competition and is widely judged to be unfit for purpose.
What is needed instead is a co-operative, supportive, continuous process of local and regional sharing of best practice. Every school has great aspects that it can share with others. One might be strong in maths, another strong in sport, another great at supporting pupils in difficult circumstances. If we think about the current situation with Covid-19, each school will have its own particular problems, but many will also have identified solutions that could be—[Inaudible]—will recognise these widely varying and often quickly changing strengths and weaknesses.
Rather than anxiously scanning league tables and thinking about whether they can afford to move house, parents should be able to look as a matter of course to their local school, at the centre and part of their community, and see the children attend it. Those schools should be working together for the best results for every pupil in the area, not being pushed to expel or force out difficult pupils. This would be of great benefit, particularly to the most vulnerable.
The Minister said that schools would benefit from an updated picture of their performance. I respectfully suggest that every school knows its own strengths and weaknesses far better than any outside inspector—so, indeed, do teachers for individual pupils. They do not need an outside test to do that, which is why I take this opportunity to ask the Minister to consider cancelling the 2021 SATs in the light of Covid-19, as the More Than a Score campaign is asking, as well as introducing alternative assessment systems for GCSEs and A-levels next year in the difficult circumstances that we will clearly face.
My Lords, I thank the Minister for her introduction, clarity and brevity, and for a helpful Explanatory Memorandum. The inspectorate has been a ubiquitous, necessary and often feared power and presence for many generations. For context, I refer to the great Education Reform Bill—the GERB, as it was called—from the noble Lord, Lord Baker of Dorking. From at least the time it became an Act, the curriculum and the inspectorate have been central.
I declare my interests. As a young person I headed a department, using chalk and blackboard. As a full-time regional official at a teachers union I served in three administrations, with responsibility for schooling and collaborating with the inspectorate, and sanctioning two special schools. I also chaired a diocesan board for schools. I never saw an inspector in my class or in my school.
With hindsight, the inspectorate should have been more robust and more active. It valued its independence. It perceived itself as a favour elite; it was superb, it wrote well and it cared. It had a low profile. Today, in a society of rapid social and economic change, the inspectorate is vital—and there is Covid-19.
I shall instance, again for context, an example of the impact of an inspection. It was of a good primary school in a working-class area. The head teacher was lively and a genuine leader. There were local problems but they were overcome. An inspection was scheduled but it was quite some weeks away. The prospect got on top of the professional staff—it was all they could think of. It was a blight. One experienced and highly regarded female class teacher in her 40s told me tearfully of her apprehension. The prospect terrified her and, without a doubt, psychologically she was broken. It was saddening to behold. In this sort of situation, an inspection can be counterproductive. This person was a valued staff member but so very obviously distressed.
Deploying the inspectorate requires constant revision, and clearly the Minister has that in mind. But I pose the question: who is for the children? It is “time irredeemable”, as the distinguished Lady Plowden once said in her caring report. The inspectorate is for the children; the head teacher is for the children; the conscientious parent, one hopes, is always for the children; and clearly the Minister is. One might therefore argue that the forces are balanced and that the Minister has decided.
Perhaps I ought to declare an interest, as my schools were inspected by Ofsted four times. I found the experience both rewarding and supportive. I welcome this SI. I never quite understood why we disapplied Section 5 for outstanding schools. Was it a reward for becoming outstanding—to set them apart from the others—or was it, as the noble Lord, Lord Adonis, suggested, to free up inspectors’ time? I can understand saying to outstanding schools, “Next time, you will have a lighter-touch inspection”, but now we have schools that have not been inspected for over a decade and, as we know, schools change. We owe it to parents, pupils and students that the schools are improving all the time and providing high-quality education.
The daughter of a friend of mine was appointed head of maths at an outstanding school. She was an experienced maths teacher. She tried to bring in much-needed changes to the syllabus but was constantly thwarted by cries of, “Well, no. We’re an outstanding school”. Needless to say, when it was inspected, it went into the “needs improvement” category. In September, Ofsted introduced a new education framework with a stronger focus on a broader, balanced curriculum for pupils and students. The outstanding schools should be the exemplars of change. If they are not inspected they cannot do that.
Since March, Covid has caused the suspension of inspections, with the situation kept under review. The date of January 2021 for the resumption of inspections is very optimistic. Whatever date is chosen, does the Minister agree that, with everything the schools have been through, they need a period of readjustment to normality? What about the problems they have faced, such as isolation perhaps, as we have heard from other noble Lords? If these inspections are to be carried out, perhaps they need to be light touch and peer to peer—to be supportive, to help the schools. In the old days we would have local authority school advisers and school inspectors who would be in schools now to support those local schools. Sadly, that does not happen unless, perhaps, you are in a multi-academy trust.
It will, of course, take six years to inspect all outstanding schools, but their safeguarding practices for their children and young people in many cases will not have been checked for 10 whole years. It is very important that it should not take six years to do this. Will the Minister give us an assurance that safeguarding will be checked as soon as is practicable? By the way, will she tell us why Ofsted inspectors are not routinely required to carry their DBS accreditation when visiting schools?
The Ofsted inspection system has been very important to our school system. Most independent schools are now inspected by Ofsted, but a number of private schools are inspected by the ISI or SIS. The Chief Inspector of Schools has been asking for greater powers to check on private schools, and the DfE agreed to limited monitoring activity. In the case of schools inspected by the ISI, there were only 17 reports; and by the SIS, six reports. The SIS has now closed down, but the ISI monitors more than 1,000 larger private schools. As the schools themselves pay for that monitoring, some might argue that that is a vested interest. Does the Minister not think that now is the time for all schools, including private schools, to be inspected by Ofsted as well?
Finally, I reflect on the fact that if you ask teachers about Ofsted, only 18%—and that includes teachers from outstanding and good schools—agreed that Ofsted was a reliable and trusted arbiter of schools. That was down from 35% the previous year. On those figures, if Ofsted were a school, it would be put into special measures.
My Lords, Labour supports these regulations, as they reverse the legislation that was incorporated into the Education Act 2011 that we opposed at the time. That we are considering them at all today is down to the persistence of my noble friend Lord Hunt of Kings Heath, who then spoke for the Opposition on education. In Committee on the then Bill he said:
“I would have thought that something as important as the exemption of categories of school from Ofsted inspections would, at the least, deserve to be treated as an affirmative order”.
He convinced the Government, who introduced their own amendment to that effect.
My noble friend also said then, in respect of the amendment that was being made to the provisions of the Education Act 2005:
“I have considerable concerns about this. The fact is that not all outstanding schools remain outstanding”.—[Official Report, 20/7/11; col. GC 472-73.]
That point has been echoed by many noble Lords today. Again, my noble friend was right. The National Audit Office found that, as of August 2017, 1,720 schools had not been inspected for six years or more, with 296 not having been inspected for more than a decade. My son’s school proudly proclaims that it is Ofsted-rated outstanding. In my experience it remains outstanding, but that is something of which Ofsted is unaware, because it last inspected it in 2008—three years before my son was born.
According to Ofsted’s most recent annual report, 17% of outstanding schools have not had a full inspection in the last 10 academic years—which would be the equivalent of 765 schools. Tellingly, of the 305 schools that Ofsted has re-inspected, 80% were subsequently downgraded, with 74 rated “requires improvement” and 14 rated inadequate.
These regulations are overdue and it is no surprise that the consultation found 89% in agreement for both schools and colleges. But there are wider issues regarding schools. The four Ofsted grades are not defined in law. The framework for inspection belongs to HMCI and there is no direct accountability about what it contains. HMCI “decided” to delay inspection of free schools from the second to the third year after its establishment some four or five years ago. HMCI could not exempt academies in perpetuity; that could be done only by regulations. However, our main objection to the original legislation still stands—regulations can exempt schools from inspection.
Last year’s Labour manifesto set out our policy to replace Ofsted and transfer responsibility for inspections to a new body designed to drive school improvement. This is not the place for detailed analysis, but we believe that the current grading system is flawed and often counterproductive. For instance, it is not appropriate to attempt to summarise everything about such a complex organisation as a school in a single grade and the current system encourages unhealthy competition between schools, one result being those garish banners that some display—no matter how dated—to advertise their status. Of greater concern, getting a poor grade often makes a school’s task in improving that much harder, as recruiting staff and pupils can become more difficult.
More generally, schools with favoured intakes are far more likely to get good or outstanding grades than schools with challenging intakes. That was a finding of the 2016 Education Policy Institute study of school inspections.
The Explanatory Memorandum accompanying these regulations seems unduly optimistic in stating that routine inspections will recommence in January 2021. It also outlines the mixed-model approach for the resumption of inspections of hitherto exempt schools and colleges, which are not due to be completed until August 2026. That represents an inordinate delay in addressing what the DfE itself has identified as an existential defect in the current system. If that is a staffing issue, it needs to be addressed to allow these inspections to be completed much sooner. The memorandum is silent on the question of costs associated with the introduction of these regulations. Indeed, it states:
“The impact on the public sector is minimal”.
That impact should involve employing additional Ofsted staff, in that case, to ensure that the anomaly of the outdated status of some schools is ended as soon as possible. I invite the Minister to comment on that point in her reply.
My Lords, I am grateful for the thoughtful and helpful insights given during this important debate, and I hope to cover many of the comments that have been made this afternoon.
I thank the noble Baroness, Lady Massey, for her comments and for agreeing with us that the time is now right for lifting the exemption. On the point that only 16% of those outstanding schools that were inspected in the academic year 2018-19 retained their Ofsted rating, it is not surprising to see such a drop because Ofsted inspects such schools specifically based on its own risk-assessment tool and from looking at the performance data. In those inspections, Ofsted should be targeting those schools with an outstanding rating where the data suggest that they no longer provide outstanding education.
On the point about school inspections that the noble Baroness raised, noble Lords will know that routine inspections are currently suspended. We are taking time and will look carefully, bearing in mind all the circumstances, at the appropriate time to resume those inspections. We will continue to look at how the pandemic has impacted on schools. When those inspections resume, it will be part of Ofsted’s inspection framework to inspect remote education as well, although that is not part of the visits that it is doing currently.
The noble Baroness also asked about Ofsted making good practice visits to schools. During the autumn term, inspectors have been visiting a sample of schools to gather information about how schools have been managing the return to full-time education, including how they are managing remote education and delivery of the curriculum. These visits are designed to be a collaborative process, and Ofsted will use those visits to produce certain thematic reports, which will be published.
As I hope noble Lords are aware, Ofsted has outlined that it will visit every inadequate school during the autumn term, because of course it is particularly important for us to know how those weak schools have been faring with the effects of the pandemic. It might also be useful for noble Lords to be aware that there has been an offer of support to the weakest schools, in terms of operational capacity, from national leaders of education. Hundreds of schools have taken up that offer.
We are sensitive to, and take into account, the poorest rating of schools, and the new framework will outline a broad and balanced curriculum. The new framework is not just an educational assessment, as the noble Lord, Lord Addington, mentioned; it is also about personal development and behaviour. As most noble Lords will be aware, although a school is given one overall grade, the Ofsted report grades the school on four different factors as well, and the report includes narrative.
On the issue of safeguarding, it is important to remember that the exemption has not removed any of Ofsted’s rights—and obligations, actually—to go into any school, on a no-notice inspection, where it is aware of any safeguarding issues. That was also the case during the pandemic, when that was the only reason that Ofsted could go into schools.
On the points about home education made by the noble Baroness, Lady Massey, it is important to make a clear distinction between children learning their school curriculum at home and those who are electively home educated. Noble Lords will be aware that we had a consultation on the latter.
On the issue of the long-standing interest raised by the noble Lord, Lord Addington, it is important to remember that the exemption never applied to special schools or AP because of the particular issues involved. There is also that broad framework. I hope that I shall have addressed his points about computers.
On the sharing of best practice, which many noble Lords mentioned, edtech has been a real focus during the pandemic. The department opened a fund to enable those schools that did not have either Google Classroom or Microsoft Education to use one of those platforms. There are about 50 schools that are edtech demonstrator schools, which are the best of the system and provide school-to-school support, so that we share best practice. Noble Lords will have heard me mention numerous times that some of our best academies have come together to provide the Oak Academy, which has been made available as a free resource during this academic year, providing some of the best teachers, so that any school can access that resource.
As the right reverend Prelate said, compassion is of course at the heart of what the Government are trying to do in all their response to the global pandemic, and the supportive approach that he outlined is the nature of Ofsted’s visits. These are visits to schools; they are not inspections resulting in a grade. The school is sent a letter, which is then published and which is useful. As I said, there will be thematic reports.
On Ofsted’s role, which a number of Lords including the right reverend Prelate touched on, Ofsted’s support when no inspections were happening was invaluable. Ofsted staff were redeployed, particularly as part of react teams in the department and in local authorities. Numerous Ofsted inspectors went in and back-filled for local authority children’s services during the pandemic, so they have shown that they are flexible and have given the support that we would have wanted them to provide in relation to the pandemic.
I appreciate the comments of the noble Lord, Lord Adonis, who is right that much of Ofsted’s response to inspecting outstanding schools was based on exam and performance data—Progress 8 and Attainment 8—which was part of its assessment of risk. There is a new framework, which was widely consulted on and welcomed by the sector when it was introduced last autumn, but an outstanding Ofsted grade will be based on the old framework. To retain confidence in the grades that we have, they all have to be on the same framework. I have outlined other reasons but that reason—to maintain confidence in the system—could also stand alone.
There is widespread confidence in the system. Ofsted has done small focus-group sampling of parents, but it is common knowledge that Ofsted is a well-known brand. Apparently, when certain people were educating at home, they gave themselves an Ofsted grade in their front windows. Parents look to it because it is independent of the department and schools. It is important that we know about the quality of education and safeguarding from an independent agency.
The noble Lord, Lord Adonis, made some suggestions. Yes, we had the initial response to the pandemic, but the Prime Minister has made it clear that schools will be closed as a last resort in lockdown, because it is important to keep education going, and for children’s well-being. Best practice is shared online, as I have outlined. One of the positives of the pandemic in the education sector was a breaking down of the walls between maintained and academy schools, and between different academy chains. There was widespread sharing of best practice—exemplified by Oak Academy, as I said—across the system to make sure that all children got the best education that they could in the circumstances.
I therefore dispute the comments of the noble Baroness, Lady Bennett. There is confidence in Ofsted and it serves a great purpose. Yes, some schools are stronger in particular subject areas so, as noble Lords will be aware, particular schools are teaching schools for maths or English—the beacon that other schools can go to and get the best resource. There is no contradiction between having a local school and having, within the system, a focus on excellence in education. Parents and children should have that choice within the system. She mentioned SATs. We want them to continue, because they are the best way to know whether children are catching up and to have a baseline for figures. She also made comments about forced academisation. Some 75% of sponsored mainstream academies are good or outstanding. I look at the noble Lord, Lord Adonis, because I think that the system began under him. It is not a panacea for all situations in all schools, but it has been shown to be a major tool to improve some of our most difficult schools. We will not cancel the standard assessment tests.
I shall answer the noble Lord, Lord Jones. We appreciate that an Ofsted inspection is sometimes stressful for teachers but there is only half a day’s notice now, so we hope that any stress is for a limited time.
I welcome the comments from the noble Lord, Lord Storey. There are always safeguarding inspections, so no school has been exempt from those during this period. The ISI is now in a joint working relationship with Ofsted so, in terms of the monitoring that he outlined and Ofsted’s statutory duty in that matter, we are satisfied that they work well in a constructive relationship where they share best practice. Of course, Ofsted inspects a proportion of independent schools; not all the schools are inspected by the ISI.
To the noble Lord, Lord Watson, I say that there is an honest assessment by Ofsted in relation to the quality of education, behaviour and leadership, and a strong focus on the curriculum.
I am aware that time is running short and I may not have answered precisely or particularly the questions asked by the noble Lord, Lord Watson, but I will address any further related matters. I commend the regulations to the Committee.
I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear face coverings, except when seated at their desks, to speak sitting down and to wipe down their desks, chairs and other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division of the House, the Committee will adjourn for five minutes.
Higher Education (Fee Limits and Student Support) (England) (Coronavirus) (Revocation) Regulations 2020
Considered in Grand Committee
My Lords, I will remind us of the background to these regulations and the circumstances leading to the introduction of student number controls. On 4 May 2020, my right honourable friend the Secretary of State for Education announced a package of stabilisation measures for the higher education sector in response to the Covid-19 pandemic. One such measure was the introduction of temporary student number controls.
As noble Lords may recall, following the onset of the pandemic, it was expected that fewer international students would travel to start their first year of study in England in the academic year 2020-21. This was in addition to an already known demographic low of 18 year-olds, and the risk of a high number of deferrals from domestic students. The real risk at the time was that our world-renowned higher education sector would have suffered a drop in fee income, which would have had significant financial implications for many providers.
Further, in the early part of this year, we became aware of aggressive recruitment practices being employed by some higher education providers, as they sought to make up the potential shortfall in student numbers and income by offering places to students to whom they would ordinarily not have made offers, for example, by making wholesale unconditional offers in March. While it is understandable that individual higher education providers would seek to ensure their own financial stability, this strategy could have had serious and detrimental consequences for the sector. It would have caused an uneven distribution of students, leaving some providers with even fewer students and income than they would have planned for, putting their financial sustainability at risk.
To counter this, higher education providers in England were allocated an individual student number control—a set number of students we believed constituted a fair maximum share of student recruitment for this academic year. To accompany this, we also made the Higher Education (Fee Limits and Student Support) (England) (Coronavirus) Regulations 2020. These regulations, which were the subject of rigorous debate in the House, provided that if providers exceeded their individual number, they would face a reduction in the maximum tuition fees they could charge for the academic year 2021-22. The purpose of this was to address the consequences of providers exceeding their allocated numbers, and thereby reducing the tuition fee income available to the sector as a whole, by reducing the sums available to the offending provider through the student finance system in the subsequent academic year.
Additionally, providers in the devolved Administrations which provided courses to English-domiciled loan-funded students were also allocated an individual student number control applicable to those students in the academic year 2020-21. In this case, the regulations provided that recruitment beyond this would result in a reduction in the maximum tuition fee loan available in the academic year 2021-22. The regulations—which we seek to revoke by the instrument we are debating today—set out in law what those reductions in the maximum tuition fee and tuition fee loan amounts would have been. These were short-term measures, to be in place for one academic year only, and were a necessary targeted response to the unprecedented circumstances caused by the Covid-19 pandemic.
However, as noble Lords will be aware, there were unexpected issues with the A-level grading, resulting in the decision to use centre assessment grades, where those were higher than the calculated grades that were initially awarded, so as to avoid some students receiving grades that did not accurately reflect their performance. It then became clear that an unexpectedly high number of students had met the grades required to meet the conditions of the offer for their first choice place at university. This was in large part an issue of timing, with the move to centre assessment grades coming shortly after higher education providers had allocated the majority of their places. As a result, many providers were oversubscribed and would have been at risk of exceeding their student number control if they honoured these offers, through no fault of their own. We therefore announced our intention to remove the temporary student number controls for the coming academic year, a decision that was widely welcomed by the sector and Members across both Houses.
The introduction of these regulations, revoking the original regulations, means that the temporary number controls that were previously notified to providers will no longer apply, nor will the financial consequences of exceeding their student number controls, which would be unfair in these unique and unprecedented circumstances. I beg to move.
My Lords, I thank the Minister for introducing these regulations. Our A-level students this year were so messed about with changes to their teaching and examinations that we must be as indulgent as possible over their university opportunities. When state and disadvantaged pupils missed out on their universities through government incompetence over a flawed algorithm, it was right for universities to try to put it right. Of course, collegiate universities such as Oxford and Cambridge did not have the flexibility to admit more students once they had admitted their first tranche, in spite of some bitter disappointments from bright, disadvantaged students who missed out through no fault of their own but the system.
I have two questions for the Minister. Where universities recruit above their original target, what assurances are there that sufficient teaching facilities will be available? Classes and classrooms have finite capacity, although with so many now resorting to online teaching only, this is not such an issue for many subjects. However, for practical, technical, scientific and artistic subjects, there is a need for laboratory, workshop and studio capacity and in-person teaching. What assurances are there that universities have enough equipment and laboratory space for all the additional students they may have enrolled?
We know from our Chamber that personal presence is far more effective than looming on Zoom. Yet very many students will not have any personal teaching this academic year. Tutorials, seminars and lectures seem destined to be virtual. My grandson, who is in his third year at Glasgow, has been told to expect virtual teaching for all this academic year. This is a far cry from students’ expectations and will inevitably be an inferior form of university experience. So my second question is: what plans do the Government have to reduce tuition fees to reflect such different teaching and learning? To pay £9,000 for a year of Zoom seems very poor value for money.
My Lords, it is right that the Government alter course where necessary, especially where original regulations, introduced in haste, are no longer fit for purpose. With universities initially offering more student places to offset an anticipated reduction in numbers due to the pandemic, those regulations sought to control the amount of money that universities would receive in the next academic year from English-domiciled students to ensure fairness. What do the Government propose to do to ensure that this type of situation does not occur in future if we are still in the same position next year or something else causes a similar situation to arise?
This issue needs also to be addressed across the devolved nations. The original legislation permitted the English student loans finance system to curtail the amount of funding available for English-domiciled students proposing to study in the devolved nations if universities there exceeded their student control number quotas. What discussions have been had with the devolved nations to ensure that in future, if English universities offer more places to students from the devolved nations to gain a financial benefit, they will not be prevented from doing so?
After the next speaker, the noble Lord, Lord Forsyth, I shall call the noble Baroness, Lady Bennett.
My Lords, I am most grateful to the Minister for explaining the regulations, which are clearly required, but I found myself very much in agreement with the noble Baroness, Lady Garden: students are being given a rough deal. I am disappointed that the Government are not using their regulatory powers to reduce the amount of fees that students are expected to pay. Many of them are having lectures online, and many are required to stay in accommodation because of Covid and are not able to go home, while those who can go home find that they are still required to pay the rent. Although some institutions have offered relief to take account of that, that is no good to the half a million or so students who are in private accommodation.
I suggest to my noble friend the Minister that she consider the recommendations included in the report of the Economic Affairs Committee—which I chair—entitled, Treating Students Fairly, which highlighted that all students from the moment they start their courses are expected to pay interest on the loans they take out to cover their fees. The interest rate charged is the rate of inflation plus 3%, yet the Government are currently borrowing money on a 10-year basis at 0.1%. This is an absolute rip-off. Cannot the Government at the very least cut the rate of interest on student loans to that at which they borrow money or, even better, go back to the previous situation in which students were not required to pay interest at all until they had graduated from their courses?
I also ask my noble friend to consider allowing students to repeat a year at no cost. Many students, particularly those who have no access to practical university experience, might prefer to take a year out and come back. Many of them, of course, are no longer able to find jobs in bars and restaurants to supplement their income. They are having a very bad time, and I do not see anything coming from the Government that recognises it. After all, they are not able to claim universal credit or housing benefit. It is true that some universities have hardship funds, but they are completely inadequate to the scale of the problem being faced.
My noble friend has obviously been thinking hard about protecting the universities as institutions. Could we think a little harder about protecting the students, who are having a terrible time? It is a terrible time induced by a policy which is about protecting the elderly. Young people are seen to be less at risk from the consequences of Covid, but they are taking the brunt of the consequences of the measures being used to combat it.
I thank the Deputy Chairman for the advance notice of the schedule change.
Yesterday, in the internal market Bill debate, the noble Lord, Lord Callanan, found it objectionable that my noble friend Lady Jones of Moulsecoomb used the term hypercapitalism. I refer to this now because this statutory instrument is a second attempt to manage extreme competition between universities. What were once communities of scholars working for the advancement of knowledge are now pushed to operate like cut-throat businesses. The “aggressive recruitment practices” to which the Minister referred are a perfect illustration that the Government might like to study to further their understanding of the term. I draw on the Wiley Online Library discussion of hypercapitalism, which states that
“critical scholars believe that once separate spheres of culture and commerce now overlap … culture and the way of life in a hypercapitalist society becomes subsumed by the commercial sphere”.
Our universities are a case study for that subsuming. They have been pushed to become businesses by the policies of successive Governments over decades.
The original statutory instrument was a small concession from the Government, who were forced by the reality of our current circumstances to move away from their ideology of allowing market forces to run wild. They now acknowledge that there is a deep state of chaos. I am pleased to follow the noble Lord, Lord Forsyth of Drumlean, and others in asking for cuts to student fees—a cut , or perhaps the dropping of all fees this year, given the kind of suffering to which the noble Lord referred. On another occasion, I shall talk about why they should be dropped altogether.
While competition between factories to produce the best tools, or between market gardens for the tastiest produce, might not be a bad thing, competition in the educational sphere, as I noted in our earlier debate on Ofsted inspections, is innately damaging, particularly in the state of confusion we now find ourselves. I can only hope that such confusion helps the Government to see the problems that we are in now and understand the swingeing damage being done by hypercapitalism, which I note the Wiley reference says is also called “zombie capitalism”. I would be interested in the Minister’s thoughts.
My Lords, I am very interested in this debate because student numbers being larger than ever may sound a doubtful proposition, but when I went to Sydney University, that was exactly the situation there. Those who had fought in the Second World War were all allowed to come in in unlimited numbers, and they provided a huge surplus of dentists in Australia. Everything had to be taught on a shift mechanism. Eventually—there were no jobs; they were out building roads and things—they discovered that the National Health Service in London was desperately short of dentists. Hundreds came over and did wonders with the national health treatment, particularly of children.
It is children who I think would benefit from these extra numbers in the schools. It is essential that they be maintained and encouraged to go on. It does not matter what the financial difficulties are. We have to think of the future of these people who have now been offered a place at university. We cannot afford to fail to honour that. It is good that we have these numbers. I support the measures.
My Lords, UCU, the UK’s largest academic union, had to cancel its online congress because it ran into technical problems. Could anything be more ironic, especially when one of the key matters for debate was the union’s opposition to the Government opening universities and the demand that all teaching be online? One does not need a PhD to know that Zoom and Teams are not fool-proof, or lecturer-proof, and are no substitute for face-to-face gatherings. I mention this because the greatest tragedy for students is not fees per se, or numbers, or algorithms, or even being locked up in their halls like prisoners or being accused of killing grannie by a government Minister. The real let-down is being abandoned by the official lecturers’ body and far too many politicians, who have sacrificed quality and personal engagement on the altar of safetyism.
I declare an interest as a visiting professor at the University of Buckingham, and I commend the vice-chancellor and staff of that university, who have worked with the student union to maximise as much face-to-face teaching as possible within the restrictions and delivered that blended learning model. The students have loved it, and so have the staff. Indeed, rank-and-file staff and many of my colleagues around the country from my previous life love teaching face to face but are being stopped from doing so by management and, indeed, their union. It is the cut and thrust of intellectual life, and far better than the stilted, awkward Zoom experience —such as here and now, indeed, in this Room.
Will the Minister commit to championing this higher education model, based on live human interaction, and challenge managements and the UCU which say that non-essential teaching should be done online? I want the Minister to ask what is “non-essential teaching”. It is perhaps a bit like the Welsh Assembly’s non-essential shopping. Any institution that believes it delivers non-essential teaching does not deserve fees or students. I would like to see the Minister and the Government championing face to face far more than they are doing, instead of getting caught up in the technicalities.
After the next speaker, the noble Lord, Lord Liddle, I shall call the noble Lord, Lord Storey.
My Lords, I welcome this statutory instrument as drawing a line under a particular chapter of confusion in government policy. The real question I want to put to the Minister is: what is going to happen next? What is the government’s future policy on fees and student numbers? At the moment, we have a higher education sector that has no certainty about the financial perspective in which it operates, and there is a duty on the Government to show greater clarity.
I have some sympathy with what the noble Lord, Lord Forsyth of Drumlean, said about whether students should pay the full fee in the present difficult circumstances. However, just to cut the fee alone and do nothing else would gravely damage the financial position of one of the most successful sectors in Britain: the university sector. What we need is comprehensive reform. We need more teaching grant, because that is the only way to compensate for a reduction in fee. As the noble Lord, Lord Forsyth, mentioned, because of the difficulty students have in getting jobs, we need the reintroduction of maintenance loans.
I am an enthusiast for universities. I was, until recently, the chair of Lancaster University. I agree totally with the noble Baroness, Lady Gardner of Parkes, that we need to get more people into university, but we will not do that successfully unless we have a long-term, sustainable funding model, and that is just totally unclear at present.
My Lords, I agree with what most noble Lords have said. Students get a raw deal. I only have to look at my city of Liverpool, which is in tier 3. Students arrive expecting to get the student experience. Polling suggests that 73% of students who decide to go to university away from home to live in halls of residence or rented accommodation do so because they want that student experience. What we are seeing is students trapped in their halls of residence or rented accommodation, in a local community, and having to do nearly all their lectures virtually. Imagine having to do that day in, day out. I suspect when they go home at Christmas quite a large number will choose not to return to university. That is not how we should be treating our students. I realise there are issues and problems, but we need to have a conversation with students. I do not have some sympathy—I have complete sympathy with students in the situation in which they find themselves.
Obviously, if one higher education provider overrecruits domestic students, it affects other HE institutions and, as the report states, disproportionately increases the public funding flowing to it through the student loan system. In so doing, it reduces the available students for other providers and increases the risk of insolvency of some HE providers, which puts further strain on public finances. There is some irony in a party that believes in letting the market decide bringing in these controls, but I will not go there.
This is the first cap on student places since 2012. All English providers get their student number cap. There are few exceptions: brand new providers do not get a cap, and nor do those in the approved registration category. If providers want to recruit more than the student number control, there are two ways they can do so. The first way allows them to bid for up to 250 extra places in a list of subjects. What are the criteria for the list? Why, for example, is architecture on it? Are we short of architects in the UK? The second way allows providers to bid for any number of courses in a selection of healthcare disciplines—very good. But have we given any thought to using, or would it be possible to use, that sort of top-up to recruit students from disadvantaged backgrounds or from black, Asian and other ethnic backgrounds?
What are these caps, and how are they calculated? We do not know how many students each provider can take this year. The Office of Students and the Department for Education have deemed it inappropriate. Can the Minister tell us why? There should be transparency. After all, it is a basic component of a trustworthy system of student number allocation. HEFCE used to do this rather well, after all. How will students retaking A-levels not be disadvantaged? Is there any mechanism for students who might chose to apply for a January start? Otherwise the cap will apply and they may not get a place.
Of course, there are wider considerations which Covid has accelerated. We could see a record number of students dropping out. In the case of first-year students, universities will be losing up to three years’ tuition fee income. Universities are likely to start experiencing more serious falls in income with financially poorer and less prestigious universities being hit first, but richer institutions are not far behind. Instead of waiting for that process of attrition to happen, universities should look at their practices and rather than entrenching old models should look at pioneering new funding structures, increasing access to higher education and, of course, ensuring that students get a proper experience of university.
Finally, can the Minister tell us whether private universities and colleges which offer degree courses included in the cap number?
My Lords, we on the Labour Benches welcome the revocation of the original statutory instrument. We were initially supportive of the principle of the cap, as we could see scope for emerging aggressive recruitment by a small number of institutions. The decision to use a flawed algorithm to determine A-level results led to a great deal of distress and upheaval for schools, students and universities, which we thought was entirely predictable from early on. The belated but entirely sensible decision to use teacher assessments naturally led to an increase in the number of students seeking a place at university this year. That meant that the numbers cap proposed by the original regulations became unworkable and unfair.
It is to the universities’ credit that they were able to respond quickly and flexibly to the disruption surrounding the admissions process and were able to honour their offers. They should be congratulated for the way in which they responded, given that they were simultaneously coping with the farce of the A-levels algorithm and putting in place measures to ensure that campuses were Covid-secure. We record our thanks to the universities that have done a lot in that regard.
We have to hope that chaos does not become an endemic feature of the Government’s crisis management. For example, I am advised that guidance is habitually late from the DfE. Universities complain that the guidance they were promised for 11 October about managing the Christmas end-of-term departure of students has yet to appear. Perhaps when the Minister replies, she can advise the Committee on when that might be published. Can she also confirm that the Government have a special Christmas sub-committee, which, apparently, is reviewing all these issues?
I hope that lessons have been learned; it is right that the Government have listened to teachers, the Labour Party, schools, students and others and pushed back the timing of exams in this academic year to give pupils more time to catch up on the learning that they have lost. Frankly, the decision need not have waited weeks to be delivered, after it was called to be made—principally by the Labour Party but by others, the unions in particular. Although it is a necessary intervention, there are concerns that it will not be sufficient to prevent a repeat of the situation that led to the need to revoke the original order.
All the expert advice suggests that the virus will not disappear by next summer, so I have a few questions for the Minister. The HE sector, parents, students and schools are keen to learn how stability will be guaranteed next year. Nobody benefits from the chaos we had this summer, so will the Government be reintroducing a temporary numbers cap? Can we have early decisions on this issue? Have the Government undertaken an analysis of the impact of the removal of the cap on university finances, and on the current distribution of student numbers across the United Kingdom? What other measures have the Government considered to prevent aggressive recruitment practices in the following academic year? Will Ministers look at the impact of variations in overseas student numbers? Can we be reassured that there will be extensive dialogue with the devolved nations before any changes to the caps are considered? Given the additional number of students now attending university, how will the Minister monitor the student drop-out rate in real time while those students are still at university? Finally, have Ministers given any further thought to the mental health needs of students coping with the stress that they are enduring, cooped up in halls of residence, at a time when they do not have the necessary finances and resources to aid themselves?
Those are a lot of questions. While we are happy to support the order, the Government have a lot to answer for in the way in which they are conducting themselves towards universities, students, parents and the governing bodies.
I am grateful to noble Lords for their contributions this afternoon. In the time available, I shall seek to deal with the many issues that have been outlined.
I say to the noble Baroness, Lady Garden, in relation to capacity for teaching, a £10 million capital fund was made available, recognising the issues that she outlined with physical capacity. The Office for Students oversees that funding, and universities are allowed to ask for additional funding. A number of noble Lords referred to the costs of teaching. Additional teaching grants have been given to subjects that are high cost, such as medicine, nursing and STEM subjects. However, it is important to note that a record number of disadvantaged 18 year-olds, at 23.1%, have gone to university this year. We pay tribute to their hard work.
In answer to the noble Lord, Lord Loomba, we are regularly in touch with the devolved Administrations. As the matters are devolved, there are still some funding arrangements and number controls separate to the student number caps in these regulations which are relevant in that regard. In relation to exams next year, on 12 October we announced that there would be a three-week delay. Next month, we anticipate further guidance and information on contingency plans in relation to next year’s exams, should there be a wave of the virus. We regularly discuss matters with the devolved Administrations.
On the points raised by about finance, particularly by my noble friend Lord Forsyth—I pay tribute to his work on the Economic Affairs Committee—we must remember that universities are autonomous institutions; they are not like schools. Fees are a contractual arrangement between an institution and students—but, of course, the Office for Students is there as a regulator. My noble friend will be aware that only high-earning borrowers repay all the interest on their loan. The majority of borrowers do not fully pay back their loans, with borrowing written off at the end of their loan term. That means that reducing the interest rates would in practice benefit only higher earners and reduce the progressive nature of the student loan system.
On the point raised by the noble Baroness, Lady Garden, we want to see an increasing number of students going to university and taking advantage of that offer when it is appropriate for them. I am pleased to say that we have the admissions data for this year and more than 371,000 English-domiciled students have taken up a place at university.
Once again, I am sad to say, I have to disagree with the noble Baroness, Lady Bennett. Universities have a variety of structures: many of them, as noble Lords will be aware, are charitable in their foundation and have great endowments, and they award degrees and have degree-making powers. Many universities do collaborate, and that is not just something we see with the Russell group. There are many regional collaborations between universities, and many of them are involved very closely with LEPs and institutes of technology and are playing their wider part in the system. Of course, at the moment—this perhaps goes without saying, but I do want to say it—they are at the front line of trying to find a Covid vaccine for us, and they deserve our support.
This is the first time that I have had the pleasure of hearing the noble Baroness, Lady Fox, address your Lordships’ House, to which I welcome her. As we know from schools, there is no replacement for the face-to-face nature of teaching, and I commend the work of the University of Buckingham, which is one of our private universities. In answer to the question raised by the noble Lord, Lord Storey, I say yes: any other institutions in the higher education sector that were regulated by the Office for Students, including private providers, were subject to the cap. The noble Baroness is right that the blended offer is the best offer, and we commend that best practice to other institutions.
On the question from the noble Lord, Lord Liddle, unfortunately we cannot provide guarantees and certainties in any area of life at the moment, but we did bring forward millions of pounds of tuition fees to help the cash-flow situation of universities. We do not know what position we are currently in formally. Obviously, we know the admissions data for English-domiciled students, but, as noble Lords will be aware, many international students start their courses in January, so we do not know the full position of universities’ finances. Along with the Office for Students, we are monitoring this, and there has been the offer of restructuring—thankfully, at the moment, no institution has come forward needing that support. As part of the wider post-18 education review, the Government are carefully examining the Augar report and its recommendations. We are considering our response to that along with the spending review, and the upcoming further education White Paper will be part of our response to that. Hopefully, this will give some certainty to providers and students.
Regarding the behaviour that we saw earlier in the year from some institutions, it is important to remember that one of the fundamental concerns of government was that this was not in the best interest of students, who, at that point in time, were put under pressure to accept an unconditional offer, which perhaps might not have been the one they wanted. We wanted to guard against that.
On the mental health and welfare of students, which many noble Lords have mentioned, the Minister for Universities in the other place, Michelle Donelan, has written to universities outlining their responsibilities in relation to the mental health and welfare of students, particularly those who are self-isolating. There has been £256 million of funding for this academic year in relation to students’ mental health.
Of course there are no maintenance grants anymore, but there is a comprehensive system of maintenance loans, and, as I say, the figures for disadvantaged students going to university mean that we have not seen a drop-off in the numbers of people going to university from those backgrounds, which is of course very important.
Finally, I turn to the comments of the noble Lord, Lord Bassam. Yes, there will have to be particular arrangements in relation to Christmas, but, as I say, we do not know the situation in relation to overseas students. We are in dialogue with the devolved Administrations on the various matters, and we commend all the work that universities have been doing in order to make the offer. Many universities and students have shown enormous resilience. Obviously, this current situation is not ideal for them to study in, but, unfortunately, every sector in our society has been drastically affected by the pandemic, and we are doing what we can to support the sector, offering advice, guidance and restructuring, should any institution need that, as I have said. Therefore, it is right that we take this action to revoke the fee limit regulations in relation to student numbers. I commend these regulations to your Lordships.
I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
My Lords, the Hybrid Sitting of the Grand Committee will now resume. Some Members are here in person, respecting social distancing. Others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear their face covering except when seated at their desk, to speak sitting down, and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020
Considered in Grand Committee
My Lords, these regulations relate to the recognition of legal qualifications and European lawyers’ practice rights and form part of the Government’s preparations for the end of the transition period.
This instrument will revoke and replace our existing legislation made in 2019 in preparation for the UK leaving the EU without a withdrawal agreement. It will remove from our domestic legislation in England, Wales and Northern Ireland any preferential practice rights for EU, EEA and Swiss lawyers, so that they are treated in the same way as third-country lawyers after the transition period. These regulations remedy the deficiency in retained EU law as such law makes provision for reciprocal arrangements with the EU which will no longer exist. However, EU and EEA EFTA-qualified lawyers who have already successfully become solicitors or barristers before the end of the transition period will be able to retain their qualification and related practice rights.
Noble Lords will be aware that the Government have signed agreements with the EU, the EEA EFTA states and Switzerland, which contain arrangements regarding the UK’s withdrawal from the EU. This instrument will give effect to provisions in those agreements relating to lawyers’ practice rights and the recognition of legal qualifications for those within scope of the agreements. Scotland will be taking forward its own legislation on this matter.
Before I turn to the detail of the instrument, I will briefly set out the background. EU law currently enables UK, EU and EFTA lawyers from one state to establish and practise in another state under their home-state professional title without necessarily having to requalify in the other state. In 2019, the Government made legislation which removed the preferential practice rights of EU and EEA EFTA lawyers in England, Wales and Northern Ireland to come into force on exit day, which I will refer to as the 2019 regulations. A further amending instrument was made, again in 2019, to implement parts of the Swiss citizens’ rights agreement.
The 2019 regulations and the 2019 amendment regulations were not designed to come into force at the end of the transition period under a withdrawal agreement. Given that the UK secured a withdrawal agreement and a separation agreement with the EEA EFTA states, as well as the citizens’ rights agreement with Switzerland, there are provisions in the 2019 regulations which are either no longer needed or will not function correctly. Furthermore, additional provisions are needed to implement the relevant provisions of the agreements relating to lawyers.
This draft instrument will therefore revoke the 2019 regulations and the 2019 amended regulations. Subject to transitional provisions, it will also revoke the domestic legislation that implemented the lawyer-related EU directives—the European Communities (Services of Lawyers) Order 1978 and the European Communities (Lawyer’s Practice) Regulations 2000.
The lawyers’ services directive and lawyers’ establishment directive will no longer apply to the UK, and there will be no system of reciprocal arrangements under which EU and EFTA lawyers can provide regulated legal services and establish themselves on a permanent basis in the UK and, likewise, UK lawyers in the EU.
This instrument will implement provisions in the EU withdrawal agreement and the EEA EFTA separation agreement which allow applications to join one of the legal professions in England and Wales or Northern Ireland made before the end of the transition period to be completed under the current rules.
This instrument will also implement a transition period of four years from the end of the transition period for Swiss lawyers within scope of the Swiss citizens’ rights agreement to register as a registered European lawyer and to practise under their Swiss professional title or to apply to join one of the legal professions in England, Wales or Northern Ireland. Additionally, it will implement provisions which allow lawyers established and employed in Switzerland to continue to provide temporary services under the lawyers’ services directive for up to 90 days in a year, for at least five years, where this is under a contract agreed and started before the end of the transition period.
Finally, this instrument will implement provisions in the agreements to facilitate regulator-to-regulator co-operation and will make further provision to enable regulators in England, Wales and Northern Ireland to complete any ongoing disciplinary proceedings against EU or EEA EFTA lawyers which commenced before the end of the transition period. By aligning the rights of EU and EFTA lawyers with those of third-country lawyers, we will still allow them to continue to access our world-leading legal services market, while ensuring that the UK complies with its international obligations. I beg to move.
My Lords, I declare my interest as a practising solicitor and a member of the Law Society of England and Wales. These measures are part of a plethora of instruments brought about by our exit from the European Union, an exit that makes us a third country in relation to EU provisions and regulations of all kinds.
Some of my particular interests in this House are in the fields of security and justice and in those areas our new status as a third country is particularly problematic, especially where, in order to protect our citizens, we need to carry on a strong co-operation to defend us from terrorism and major criminality by the exchange in real time of information and data. Inevitably, our new status will diminish our rights in that regard and, unless we can find a way to avoid the third-country category, the challenges ahead are difficult to meet and solve.
Here before us are some regulations that are inevitable because of that new status. They are no doubt necessary, but regrettable nevertheless. Over many years, the reputation and strength of our legal services has grown and through calm and constant negotiations, in which I and many others had the privilege to be involved, we have established the rights of our lawyers and lawyers from other European nations to practise law in each other’s jurisdictions, so that until this time the free flow in both directions has become reasonably straightforward.
Of course, the journey has not always been easy because in law, as in other professions, there have been the residual elements of market protection or closed-shop mentality in a number of countries. However, recently we have seen a lessening of boundaries that has resulted in the growth of services which, while being of general benefit, has been particularly important to this country, to our financial services industries and the City of London and our national legal practices in particular. Therefore, noble Lords will understand why I have some regret for these measures.
Effectively, from 1 January 2021 UK-qualified solicitors will no longer be able to practise as EU lawyers in EU and EEA member countries. They will lose their rights of audience before EU courts and all communications between UK-qualified lawyers and their clients will lose the protection of legal professional privilege in EU courts and institutions—one of the most important elements of that relationship. Similarly, the same will apply in reverse to European-qualified lawyers.
UK lawyers, if they wish to continue European practice, will be obliged to requalify in a host state under article 10 of the establishment directive. This will be time consuming, costly and uncertain of outcome. UK law firms might have to cease activities in other European countries if professional rules or company law are inconsistent with ours. Also, some national rules on the continent do not allow a mix in a single legal firm of domestic and third-country lawyers. This means that the complications I have stated, plus differences in the limited liability of such entities, will force the termination of many international firms.
Of course, the Government have stated, which is welcome, that they are seeking a future relationship agreement with the EU. We do not know how that is going, but without it, and comprehensive provisions related to services as opposed to trade, lawyers and the vital services that they provide will suffer badly. Without it, the UK and the EU will fall back on the General Agreement on Trade in Services—GATS—under the umbrella of the WTO. If so, lawyers cannot guarantee that they will receive the protection of EU regulations, which would be universally applied. Instead, they will be at the mercy of individual states’ treatment of third-country lawyers, which, of course, varies between states. There are limitations; these usually include certain areas of practice, such as only permitting in the fields of international public law and home country law from the lawyer’s perspective. Unfortunately, some nationality requirements even block UK lawyers from requalifying and prevent new partnerships being formed or continued between EU and non-EU citizens.
As I suggested, being outside the EU, our solicitors will lose all rights of audience in front of EU courts, which is most important in some practice areas, such as competition law and intellectual property law—fields in which our practitioners are particularly needed and successful, and on which the economic advancement of the UK in the post-Brexit world surely partly depends. How we and our European neighbours allow market access to foreign lawyers in future, in the event of reliance on WTO rules, also limits our choice based on historical associations. As noble Lords will know, the most favoured nation provisions do not allow discrimination, even positive discrimination, between trading partners.
I have highlighted some of the areas of difficulty and disadvantage to United Kingdom lawyers in coming months. I accept that, of course, our Government can alleviate these problems to some extent by incorporating in their current negotiations with the EU a clear mutual recognition of professional qualifications provision, but history demonstrates the problems in re-achieving what we are now losing. Mutual recognition agreements between specific nations could follow if such arrangements were in a trade agreement and given sufficient prominence.
In the provisions before us, I am pleased that one of the welcome items is in respect of RELs, or registered European lawyers. They currently have only until the end of this year to meet the UK registration requirement for re-qualification. It would be very helpful and a positive gesture if a grace period could be afforded to those who need more time to requalify, even if they reach three years of being first registered after 31 December.
At the end of the day, there is an inevitability to measures such as these, but we have it in our power to ensure that implementation leaves us with minimum damage to vital parts of our service industries and maximum good will with our European neighbours, with which we will need to co-operate in these and so many other areas in future.
I welcome the experienced speech from the noble Lord, Lord Kirkhope, who obviously has a great deal of experience in this field. I was interested in the debate in the House of Commons, when this statutory instrument was before its Delegated Legislation Committee. Mr Alex Chalk, the Parliamentary Under-Secretary, claimed that we are an open society, particularly when it comes to legal practice. He said:
“We want to be a country that continues to attract the brightest and best lawyers from around the world, as long as they are … properly qualified and this is the appropriate place for them to practise.”—[Official Report, Commons, Eighth Delegated Legislation Committee, 22/9/20; col. 6.]
This was a curious thing to say while introducing a statutory instrument which abolishes reciprocity between lawyers in Europe and our own legal profession. There are transitional provisions to protect European lawyers who currently work in this country. They have a limited time, as the noble Lord, Lord Kirkhope, pointed out, in which to seek qualification with United Kingdom legal regulating bodies; after that, they must take their chance with lawyers from all over the world.
Will the Minister explain clearly what routes there are for qualification or permission to practise in the United Kingdom for worldwide lawyers, other of course, than by applying to become members of the Law Society or the Bar and taking the necessary professional examinations? When I wanted to appear to conduct a case in Scotland, the noble Lord, Lord Forsyth, had he been here, would have been pleased to know that I was completely intimidated to find the barriers put in the way of a Queen’s Counsel from Wales. It was easier to be admitted to the Bar in Hong Kong or Malaysia or Singapore or, indeed, in the Caribbean.
The noble and learned Lord, Lord Keen of Elie, said on 15 January 2019:
“In the event of us exiting without any deal, there will be no reciprocal rights”
and that the regulations
“are necessary in order that we can establish a position in which all third-party country lawyers will be on the same standing in the absence of a free trade agreement or other agreement with a third-party country.”
He said that it was clearly
“a matter that we would wish to address in future negotiations consequent on our exit from the European Union. This is dealing with the position in the United Kingdom in light of the existing regulatory regime under EU law. Clearly, and quite patently, you could not address the question of how the EU 27 are going to treat our lawyers going forward”.—[Official Report, 15/1/19; col. 177.]
Well, 22 months have gone by since he spoke and we do not seem to have gone forward at all. Can the Minister confirm that, as from the end of the transitional period, UK lawyers will gain no opportunity in future to have rights of audience or rights to practise in EU member states? Are there negotiations for a deal about reciprocity for legal services? If so, what are they?
The noble Lord, Lord Kirkhope, referred to the costly and uncertain outcome of the current position and the blocks placed on qualifications overseas by various countries. The noble Baroness, Lady McIntosh of Pickering, pointed out in a debate on the precursor to these regulations that
“when the regulations were passed … Ireland’s professional body has taken the opportunity to increase the cost of qualifying as an Irish lawyer to practise there from £300 to £3,000.”—[Official Report, 30/1/19; col. 1141.]
Those are some of the blocks to which, no doubt, the noble Lord, Lord Kirkhope, referred.
Mr Chalk asserted blithely on 22 September that:
“We will continue to remain an attractive part of the world, because we believe in upholding the rule of law. Long may that continue.”—[Official Report, Commons, Eighth Delegated Legislation Committee, 22/9/20; col. 6.]
This was only six days after the resignation of the noble and learned Lord, Lord Keen of Elie, so he can hardly have been unaware of what he was saying. Mr Chalk—who is a very personable and skilled Queen’s Counsel currently working his passage through the Tory ranks—was, I am afraid, somewhat bravely off message. I fear for his future career under the present Administration, who, as we know, have complete disregard for the rule of law, as exemplified not merely by Mr Dominic Cummings’s jaunt to Barnard Castle—now the stuff of legend—but by the provisions of the United Kingdom Internal Market Bill, which it is the duty of this House to excise. I am sure that Mr Chalk is busy reflecting on his position; a good resignation would see him reconciled to his professional colleagues and likely to flourish in a more sensible future Administration, if the Tories are ever forgiven for this one.
My Lords, the purpose of this instrument is to implement into domestic law the provisions relevant to lawyers’ practice rights and the recognition of legal qualifications in the EU withdrawal agreement, the EEA and EFTA separation agreement and the Swiss citizens’ rights agreement. It ensures that EU lawyers who apply to practise law across England, Wales and Northern Ireland before the end of the transition period can have their applications properly considered. The instrument also protects Swiss lawyers who have been practising in England, Wales and Northern Ireland and implements a four-year transition after Brexit for Swiss lawyers to register and practise law across those three UK countries.
The instrument also allows cross-border co-operation between legal regulators in the jurisdictions of England, Wales and Northern Ireland and the EU regulators. Importantly, this instrument will enable regulators to complete ongoing disciplinary proceedings, as we have heard from the Minister, against EEA, EFTA and Swiss lawyers, which had commenced before the end of the transition period.
In the Explanatory Memorandum, the Government state that:
“The impact of this instrument on business, charities or voluntary bodies is not … quantifiable”,
because it is not known what the individual lawyers will choose to do. Will they continue with unregulated activities, will they undertake regulated activities under supervision, or will they transfer to the domestic legal professions? Having looked at the Explanatory Memorandum, it does not seem to me that there are that many RELs—registered European lawyers—in the country. Can the Minister say whether the RELs themselves have in fact been asked what they plan to do with their activities post Brexit? Have they been directly consulted?
It is clearly right that we should meet all our obligations under the withdrawal agreement and that we should also facilitate and help the lawyers concerned to continue practising law here. Britain’s legal landscape needs to be outward-looking and welcoming. Colleagues with similar qualifications should be welcome to practise here. As has been pointed by the noble Lord, Lord Thomas, this point was made by the Minister in the other place; it is surely the purpose to keep the UK outward-looking and as a destination for legal and financial expertise. So I have another question for the Minister: how will the principles outlined in this statutory instrument be applied to lawyers from the rest of the world—from America and areas outside of those we are discussing today? Of course, they too may wish to come here to practise their professions on some sort of reciprocal basis.
Speaking on behalf of the Opposition, we will not oppose these regulations, but the two speakers before me raised some very pertinent points. The noble Lord, Lord Kirkhope, described the instrument as necessary but regrettable, and he highlighted very effectively the difficulties before us and before the Government. He asked a good question about giving a grace period to the registered European lawyers in their application process. The noble Lord, Lord Thomas, also made some important points about the reciprocity of legal services. I look forward to the Minister’s answers to those questions. Underlying all the points that have been made is the benefit to the UK of keeping the legal profession as open and welcoming as possible while maintaining the high standards that have led us to the strong position that we hope to maintain.
I thank all noble Lords for their valuable contributions. I will start with my noble friend Lord Kirkhope. I listened to everything he said. I do not have very much to say, other than that we have left the European Union and we need to make these SIs to protect our UK lawyers through the transition period and give a clear understanding to our European and Swiss lawyers about how they can remain in this country if they wish to do so. I have taken note of the idea of a grace period. I will certainly go back to the MoJ and say that that has been brought up and that we perhaps should consider it.
All three speakers spoke about third-country lawyers. Quite rightly, our legal services market is already one of the most open in the world. I say to the noble Lord, Lord Ponsonby, that we are not changing that at all. All we are doing is saying that, after the transition period, EU lawyers will have the same rights as those third-country lawyers. We regulate only certain legal services. Many foreign law firms provide services to clients without needing to be regulated in the UK.
Third-country lawyers also have significant opportunities to pursue careers in legal services in the regulated sector of the UK. This includes accelerated routes to seek admission as solicitors or barristers through transfer examinations, and to hold ownership and management interests in legal businesses alongside our UK lawyers in a regulated market. There is a public interest risk in retaining the current framework for EU and EFTA lawyers without the benefit of existing EU rules on the regulatory co-operation and oversight that we have had. There is a good and very exciting opportunity for EU lawyers to join third-country lawyers in this market.
My noble friend Lord Kirkhope brought up what the withdrawal agreement means for lawyers. Under the withdrawal agreement, during the transition period existing rights, including lawyers’ home state professional title practice rights across the UK and the EU, will continue.
The withdrawal agreement allows UK lawyers resident in the EU 27 at the end of the transition period who have transferred to the host state profession to continue to practise in the member state in which they reside, subject to the regulatory rules in that member state. This means, for example, that where a UK lawyer is living in Germany and has been successful in joining the German legal profession, that will continue to be recognised. Similarly, EU lawyers who are resident in the UK at the end of the transition period and who have transferred to one of the UK’s professions will be able to continue to practise in the relevant part of the UK, subject to the relevant regulatory rules. Those are the matters that will be dealt with soon after the withdrawal agreement comes into force.
A number of noble Lords asked what impact the outcome of the negotiations with the EU will have on this instrument. I assure them that the outcome of the negotiations should have no effect at all on this instrument.
The noble Lord, Lord Thomas, asked what we were going to do to protect the rights of UK lawyers in the EU and EFTA countries. As EU and EFTA lawyers will be subject to domestic rules in the UK, UK lawyers wishing to practise in the EU and EFTA states will be subject to the national rules and regulations of those individual EU and EFTA member states. This will vary between member states and may vary within member states where they have multiple regulators. This instrument does not and cannot address the issues of the rights of UK lawyers in the EU and EFTA states. However, we continue to work closely with UK regulators and professional bodies as they develop guidance for EU and EFTA lawyers in the UK and UK lawyers working in the EU and EFTA states. Continued information sharing and joint efforts to secure arrangements for UK lawyers through regulator-level agreements will be important to protect future market access. For UK lawyers working in the EU and in EFTA states, given the range of regulatory arrangements that may apply, we have advised them to contact their EU or EFTA member state regulator for guidance. The Government are doing everything they can to support lawyers through this change.
The noble Lord, Lord Ponsonby, asked me how many lawyers will be affected by these regulations at the end of the transition period. Estimating the total number of lawyers exercising rights under the lawyer-related EU directives in England and Wales and Northern Ireland or UK lawyers exercising such rights in an EU or EFTA state is difficult, as lawyers providing services on a temporary basis do not need to register with a regulator in the other state, so no data exists to quantify their activity. In terms of EU or EFTA lawyers exercising their rights to establish in England and Wales permanently, the Solicitors Regulation Authority data shows that there are 783 registered European lawyers registered with the SRA in England and Wales as of August 2020, while there are 301 English and Welsh solicitors practising as RELs in the EU. That will give the noble Lord an idea of the numbers that we are talking about.
The noble Lord, Lord Ponsonby, also asked if we have done any consultation with those RELs. The draft regulations remedy a deficiency in retained EU law, but also ensure compliance with international obligations. As such, we could not conduct a meaningful consultation on the approach we have taken.
I think that I have answered all the questions. However, I will look at Hansard early next week and if I have missed any questions I will certainly come back to noble Lords. The UK Government are committed to protecting the citizens who benefit from rights under the agreements—many of whom make valuable contributions to the UK legal profession. It is also important that this instrument makes other changes to ensure that we remove the EU frameworks, as we can no longer provide preferential rights to EEA countries unless provided for under a comprehensive FTA, except the transitional provisions to give effect to the relevant provisions of the agreements. Aligning the rights of EU and EFTA lawyers with those of third-country lawyers will allow them to continue to access our world-leading legal services market while ensuring that the UK complies with its international obligations.
The rights of UK lawyers in EU EFTA countries cannot fall under the scope of this instrument. The rights of practice, ownership and establishment of UK nationals or those with a UK qualification in the EU will be governed by the national policies and rules of individual member states. We continue to work closely with the UK regulators and professional bodies as they develop guidance for EU and EFTA lawyers in the UK, and UK lawyers working in the EU and EFTA.
The UK legal services sector is one of the leading and most attractive in the world. The Government are committed to championing the sector both through promoting legal services overseas and maintaining its competitiveness. I underline once more that this instrument is a vital part of the Government’s preparations for the end of the transition period and enables us to comply with our international obligations.
My Lords, the Grand Committee stands adjourned until 6.30 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear face coverings, except when seated at their desks, to speak sitting down and to wipe down their desks, chairs and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Taking Account of Convictions (EU Exit) (Amendment) Regulations 2020
Considered in Grand Committee
My Lords, this instrument will implement the separation provision in the EU withdrawal agreement on taking account of convictions. In accordance with the separation provision, it will ensure that previous convictions in EU member states will continue to be taken into account in cases where criminal proceedings have begun before the end of the transition period. That separation provision partially preserves the application of a framework decision that established that previous convictions in EU member states are to be treated in the same way as domestic convictions during criminal proceedings.
To implement the separation provision, this instrument amends two pieces of legislation. First, it amends the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019, which were intended to address deficiencies in retained EU law in the event that the UK left the EU without an agreement. Now that we have left the EU with an agreement, this instrument modifies the 2019 regulations to give effect to the terms of the withdrawal agreement.
Secondly, this instrument amends the Sentencing Act 2020, which consolidates sentencing procedural law into a sentencing code, as a consolidation exercise. The code has been drafted on the basis of the current law. Therefore, this instrument amends the 2020 Act to also give effect to the terms of the withdrawal agreement. Therefore, the amendments made by this instrument ensure that the separation provision on taking account of convictions will be given full effect in domestic law. I beg to move.
My Lords, I am grateful to the Library and other noble Lords who helped me in my research. I decided to take part in this debate because I thought the regulations might impact on civil liberties and the evaluation of settled status. I need not have feared. I can see what the Government wish to achieve, and it fits nicely into the consideration given by the Joint Committee on Statutory Instruments.
The principle was well described in the introduction to the Commission’s report to the European Parliament and Council on the implementation by the member states of the framework decision back on 24 July 2008. I quote this because the relevance of these aspirations seems to me to be far-reaching:
“In a genuine area of justice based on mutual trust, the European Union has taken action”,
as the Minister has told us,
“to ensure that citizens are protected against crime across the European Union, while also ensuring that citizens’ fundamental rights are respected when they find themselves involved in criminal proceedings, whether as a victim or a defendant. In the European Union, where people can”—
perhaps we should say could—
“move and settle freely, this objective of maintaining and developing a genuine European area of justice requires that convictions against persons sentenced in one Member State are taken into account in another Member State in order to prevent future crimes. Equally, if new crimes are committed by the same offender, subject to preserving fairness of the proceedings, this behavioural factor should be taken into account in the framework of new criminal proceedings.”
Clearly this is a description of a desirable legal world that, whatever our Brexit beliefs, we should all want to live in. It is so desirable that it begs the question of what will happen to EU convictions in future and why we would not wish for a continuation of this level of protection for our citizens. Do these amendment regulations not in fact fix a problem that we might then have to break?
My Lords, I thank the Minister for her explanation of these modest proposals. I come to them as one who was a sentencer for many years. When I was a sentencer, I would have had even greater interest in them. I first sat as a sentencer in 1973 in Cardiff and continued to do so until I became a law officer in 1997. Sentencing is not an easy process. At the end of a week’s sitting, you may have half a dozen cases to sentence, and each one has to be considered carefully and—for lack of a better word—judiciously. The basic requirement has remained unchanged over the years: that the sentencer should have full knowledge of the track record of the person to be sentenced if justice is to be done. That is the paramount consideration.
The Minister has explained that what we are doing here is filling a gap, or at least a potential gap. We are dealing with criminal proceedings instituted but not concluded before the end of the transition period, which are the subject matter of these regulations. It is important that there is no gap in the knowledge available about a person to be sentenced. The requirement is that the circumstances are known to the sentencer, so far as they are required by national law. The Minister used the words “domestic law”. My question is simple. These regulations obviously apply to the law of England and Wales and Northern Ireland, but do they apply equally to Scotland, given that the Minister used the words “domestic law”? With these few words, I very much welcome these regulations.
My Lords, I was disappointed to discover that there is no accompanying draft memorandum to explain this statutory instrument displayed on the House of Lords Papers app. For those of us who are locked down in Wales, that app is a lifeline. Did the Ministry of Justice think that this SI is so insignificant as not to require an Explanatory Memorandum and that the few lines below the text of the instrument are sufficient?
The sad thing is that this is not an insignificant statutory instrument. As the noble Lord, Lord Berkeley, said, in 2014, the European Commission reported to the European Parliament on the workings of the framework decision of 2008, with which this statutory instrument is concerned. He quoted at length to your Lordships the inspiring introduction which sets out the purpose of the report and of the framework decision itself. It is indeed in the interests of effective criminal justice, including the protection of victims of crime within the European Union, that all member states should have rules in place to take into account at all stages of criminal proceedings whether a person is a first offender or has already been sentenced in another member state.
We have just thrown all this protection away. This miserable little statutory instrument merely preserves the regime of co-operation in respect of proceedings which were pending but not completed at the end of the transition period. It says nothing about co-operation in the future. Can the Minister tell us whether there are any negotiations in being to bring about similar co-operative and reciprocal mechanisms which must be in the interests of the UK, whether in the EU or not?
Obviously, such discussions cannot be part of the trade negotiations, which are stuttering along on their last legs at the moment. What happens if new proceedings are commenced against an offender on 1 January next, after the transition period, and result in a conviction? How will judges and magistrates in this country be warned and informed whenever an EU national with a string of convictions appears in a British dock? Will it be possible at all for our police forces or prosecutors to obtain information of past convictions from EU countries?
Similarly, what arrangements are proposed for co-operation with EU countries in providing the records of individuals convicted in this country? Come to think of it, where are we with the European arrest warrant or any mechanism to replace it? Is it not ironic that we can negotiate a trade agreement with Japan, a country on the other side of the world and ring the parish church bells, but are incapable of having in place after 1 January an agreement that will protect, and is designed to protect, the citizens of this country from criminals arriving from our European neighbours?
This statutory instrument is important simply because it stands as a symbol of the wreckage of a great idea: the binding together of European states wracked by war into a community for common security and prosperity. I look forward to the Minister’s reply.
My Lords, the purpose of this instrument is to make transitional provision so that when the EU exit transition period ends the current regime for taking account of previous criminal convictions in relation to convictions in the EU will continue where criminal proceedings in the UK begin before the end of the transition period but conclude after it ends. Proceedings beginning after the end of the transition period will be dealt with under a new regime. When the UK ratified the withdrawal agreement, we agreed the framework for taking into account criminal convictions in the EU. It is right that it be extended to court proceedings that start in the transition period but conclude after it ends.
I remind the House that I sit as a magistrate in central London. I regularly deal with foreign nationals, both EU nationals and non-EU nationals, who are brought before the court for whatever reason. Very occasionally I see a record of their offences in their home country or another country. It is welcome when that information is available but, in my experience, it is rare to get it. In addition, I have never been told that a check has been done on a foreign country with a negative result. Usually we do not know whether that check has been done. I sit in the lowest court, the magistrates’ court, and it may be that these checks are more usually done for more serious matters, such as those in Crown Courts, but my experience is that I rarely see the information when I am making sentencing decisions.
Speaking on behalf of the Opposition, we support this statutory instrument. However, I agree with the sentiments expressed by the noble Lord, Lord Thomas, that it is a testament to a very limited ambition, and I would be interested to hear what the Minister has to say about what she expects to be in place when we get past 31 December.
I conclude by saying to the Minister that, whatever the future arrangements are, the current arrangements leave a lot to be desired. Although they were theoretically in place, from my experience they certainly were not acted on in courts in London. Therefore, I hope that she will be able to reassure us that the Government have an ambition to improve the information available to courts, as has been the case under the current arrangements.
I thank noble Lords for taking part in this very short debate. The fact that it is a short debate is very welcome on a Thursday evening.
The noble Lords, Lord Berkeley and Lord Ponsonby, brought up a similar issue. Now that we have left the EU, there is absolutely no reason to treat EU member state convictions differently from those imposed in the rest of the world. However, the loss of taking account of convictions capability after the transition period does not affect the fact that, as we heard from the noble Lord, Lord Ponsonby, the courts will retain the discretion to treat previous convictions in EU member states as an aggravating factor during sentencing, as they can already do with convictions imposed elsewhere. I will take back the view expressed by the noble Lord, Lord Ponsonby, that, from his experience in London courts, he is not getting as much information as he should.
The noble and learned Lord, Lord Morris, asked about the extent of these regulations. They extend to the UK, subject to the exceptions set out in paragraphs (2) and (3) of Regulation 2. Paragraph (2) provides that the amendments of the Sentencing Act 2020 made in Part 2 of the regulations
“have the same extent within the United Kingdom as the provisions to which they relate.”
Paragraph (3) provides that the amendments of the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 made in Part 3 of the regulations
“extend to England and Wales and Northern Ireland.”
I hope that that clears up that query for the noble and learned Lord, Lord Morris.
The noble Lord, Lord Thomas of Gresford, said that he could not find the draft memorandum. I am extremely sorry that it was not on the Lords website, but it has certainly been published on the legislation.gov.uk website if he wants to see it.
The noble Lord asked how the courts would obtain information about overseas convictions when we end the transition period. Our criminal justice system is well versed in obtaining such information. The process of obtaining it is a combination of law enforcement co-operation between police forces in the UK and other countries and the wider mutual legal assistance framework, or MLA, which will continue to apply between the UK and EU member states after 31 December 2020. At that point, it will be based largely on Council of Europe treaties, in particular the European Convention on Mutual Assistance in Criminal Matters and its protocols. The MLA is a method of co-operation between states for obtaining assistance in the investigation or prosecution of criminal offences. Such assistance is usually requested by courts or prosecutors and is referred to also as “judicial co-operation”. There will therefore continue to be co-operation, as I have explained.
To reiterate, the purpose of this instrument is to give effect in domestic law to the separation provision in the EU withdrawal agreement on taking account of convictions. To that end, I commend it to the Committee.
That completes the business before the Grand Committee. I remind Members to sanitise their desks and chairs before leaving the Room. The Committee stands adjourned.
Committee adjourned at 6.50 pm.