Apprenticeships, Skills, Children and Learning Bill

House of Lords, 29 June 2009.

Committee (3rd Day)

Lord de Mauley (Conservative)

Amendment 79 would quite simply protect those businesses whose good practice in arranging time for their employees to train should give them the right to exemption from too much of the regulatory burden that has been created with recalcitrant businesses in mind. Indeed, much of this part of the Bill seems to make an assumption that businesses need to be bullied or forced into doing the Government's bidding. The reality is that most employers know well—without the Government or anyone else having to tell them—that it is in their own best interests to ensure that their people are properly trained and equipped. The majority of them not only know this but actively pursue it.

The most recent data from the CBI education and skills survey show that 89 per cent of businesses have training and development plans. The vast majority of employers in this country are strongly committed to investing in skills, a fact that is reflected in the £39 billion per year invested by businesses in skills training. Many of these employers have existing arrangements for discussing employees' training needs, be they at regular appraisals or, perhaps, at annual performance reviews, as both the IoD and the CBI have told us.

While we certainly are generally happy with the objectives of Clause 39, as my honourable friend Nick Gibb said in another place, the figure from the CBI of £39 billion spent on training, compared with the calculated benefits of this new right, which the impact assessment has put at between £200 and £400 million, shows that what is already being spent is up to 100 times greater than the anticipated benefit of the new right. I suggest that we should avoid creating a greater regulatory burden for those companies that are already more than fulfilling any reasonable expectation of them for training and skills. Where good practice does exist, there is no need for increased regulation. In such cases, training needs should be dealt with through existing programmes, negating the need for legislation. The CBI argues that this approach has worked well for flexible working. Six million people now have a legal right to flexible working; the number increases to 14 million if you count those who do so in practice. Can the Minister explain why this should not work in the case of training and skills? I beg to move.

Baroness Sharp of Guildford (Liberal Democrat)

We have quite a lot of sympathy with this amendment. However, on reading the debate on the same amendment in the other place, we recognise the importance placed by the Minister there on the need for employees to take some responsibility for their own training. He said that we were in a sense trying to change the mindset and behaviour of employees as well as employers. Certainly we are with the Conservative Party in feeling that good employer practices such as proper appraisal systems are important, but we are worried that young people aged between 16 and 18, having had an appraisal and entering into an agreement, may find that things change rapidly and that what they really need is another kind of training course. The wording of the amendment is inflexible in that, once a training programme has been agreed, everyone must stick to it. Employees would have no opportunity to say that they would like time off to do something else. We should look at all the reasons why something is not agreed. Therefore, while we have sympathy with the amendment, we do not go along wholly with it.

Baroness Wall of New Barnet (Labour)

I agree totally with the noble Baroness. This amendment deals with a situation where the ideal arrangements are not in place, but I worry because a lot of the work being done to ensure that employers engage with apprenticeships takes place through union learning reps, whom I know the party opposite also favours. They should be part of the ongoing arrangements or audit of the report. In the absence of such arrangements, I suppose that Investors in People or another type of facility in the workplace might be able to help. However, the amendment is restrictive in that it closes things down rather than opens them up.

Viscount Eccles (Conservative)

My issues on proposed new Part 6A go somewhat wider and, while I agree with the noble Baroness, Lady Sharp, that the amendment might not be exactly the right way to loosen up these provisions, they nevertheless need to be loosened and I want to make the argument for why the amendment moved by my noble friend on the Front Bench at least gets us started along the way.

New Part 6A is very detailed and prescriptive. We would all agree that there are difficult employers, if I can put it that way. If an employer is "difficult", that is usually someone's opinion of the case. Is the opinion to be that of the unmentioned sector skills councils, where presumably the problem would lie in not enough training being done or in its being done badly? There are many possible reasons for an employer to get into that situation. There may be financial problems; it might not have been a wise decision to take on new employees just starting out on their careers when the bank is saying, "We give you six months and no more". The company might be in the process of being sold or taken over, the managers could be nearing retirement or there could be a major reorganisation under way. Indeed, I wonder how the Learning and Skills Council is getting on at present in terms of taking on new recruits. In that context, I point out that there have always been problems about who is doing sufficient or insufficient training, as well as who feeds into and who takes out of the pool. Over the time I have been involved in industry, we have always accepted the necessity for a trade-off between those companies that make more than the average contribution and those that, for good reason on occasion, do not.

Another worry that I have about this new part is that the psychology is wrong. While I can see the argument of the noble Baroness, Lady Sharp, that it puts responsibilities on to apprentices, I would be wary of loading too many on to them. That would go against the grain. In the process of putting duties and responsibilities on employers, quite a lot of this part assumes that there will be conflict and sets out the ways in which those conflicts can be solved. A lengthy list is set out in new Section 63F(7), on which we will debate amendments in due course, but do we really expect there to be a balanced and productive discussion between an employer and an apprentice on "planned structural changes" in the company, or indeed under paragraph (j) on,

"any other grounds specified by the Secretary of State in regulations"?

Over what I see as the positive and worthy efforts of both employers and apprentices is the brooding presence of the Secretary of State, who has the power to change the rules at any time, as well as that of the tribunals.

Much of this complex system is arguably unenforceable, at least against apprentices. For my part, I am happy that it would be unenforceable against them because there is no way that a responsible employer would seek to go to law or even look to a tribunal hearing against an apprentice. That is simply not a sensible way of spending time and money and, indeed, the level of emotional involvement might get completely out of hand.

Baroness Sharp of Guildford (Liberal Democrat)

I point out to the noble Viscount that my reading of this part of the Bill is that it applies not just to apprentices but to all employees. The Minister may correct me on this, but I think that this right is going to be introduced for all the employees of a company.

Viscount Eccles (Conservative)

I apologise, because I have always been in the habit of talking about people being trained rather than apprentices, but on this occasion I have fallen into error in confining my remarks to apprentices. I accept fully that this would apply to all employees.

My third issue is that of regulations. These make 12 appearances, which is not bad in eight clauses. How many statutory instruments would they generate? I suggest that there might be eight of them with some consolidation. At around five pages each, they would come to up to some 50 pages. This mass of secondary legislation goes directly contrary to government policy. Where in all this is the Cabinet Office with its policy of less and better regulation, its policy towards reducing burdens and its regulatory reform programme? It takes a long time to see the regulatory reform of one statutory instrument, but here we are to have another eight, or even 12. This proposed new part needs to be thought through again because it is overly detailed and prescriptive and could turn out to be very costly in its regulatory impact. We need to support my noble friend's amendment and so relieve good employers, and their good apprentices, from this nightmare entitled, "See you at the tribunal".

Lord Young of Norwood Green (Labour)

We must invest in our nation's talent to succeed in the highly competitive global economy. There is consensus in this Chamber on that point, which flows from the Leitch report. I was disappointed when the noble Lord, Lord De Mauley, said that we would be bullying employers, because nothing is further from the truth. Indeed, we applaud those employers who, as he rightly drew to our attention, invest significant sums of money in training. They do a very good job, whether it is for apprentices or for a whole range of other workers in their employment. However, they are not the group that we seek to impact on.

Despite the progress that we have made in the past decade, our nation's skills base has not yet met our aspiration to be the best in the world. Too many adults struggle with low or out-of-date skills. Perhaps the most depressing statistic is that one-third of employers do not train their staff at all, which seems absolutely astonishing. Eight million employees in England go without training every year. We cannot allow that situation to continue. We have to change the culture and the attitude towards training, certainly with those employers and with some employees as well.

Successful employers see investing in the skills of their workforce as one of the most powerful things that they can do to drive their businesses forward. They know that it makes sense for the bottom line. They understand that those businesses that do not invest in training are 2.5 times more likely to fail in a recession. We are seeking to create a culture in which every employer takes that view and in which individuals see improving their skills as one of the most powerful things that they can do to help them to realise their career aspirations. It is not our view that we in any way need to bully, because there are so many employers doing the right thing; it is the ones that are not embarking on any training at all whom we need to influence. We are giving employees a right to a serious conversation with their employer about their skills development. That will help to encourage and support adults and young people to develop their skills and rise as far as their talent will take them.

Time to train goes with the grain of what the best employers are already doing. They are having serious conversations with their employees. It may be in an annual appraisal or in a separate discussion on training. This will help others to follow that example and support their employees to develop the skills that their business needs to prosper in the 21st century.

I want now to address some of the points that have been made. I agree with the noble Baroness, Lady Sharp, about the rights and responsibility approach. We hope that we are giving more rights to employees. This is a fairly cautious, but nevertheless important, step in that direction. Yes, it will require people to exercise those rights responsibly. We are trying to ensure that there is real flexibility. I endorse the point made by my noble friend Lady Wall in relation to union learning reps, who, as I think is universally acknowledged, play a terrific part in encouraging employees to develop their skills and in encouraging employers to focus on the importance of training.

I, too, was somewhat puzzled at the focus given by the noble Viscount, Lord Eccles, to apprenticeships. Apprentices are not the group that we have to worry about, as their training will be laid down. We do not believe that we have made this structurally unenforceable. I do not expect apprentices to have to go through that kind of debate. Neither do we believe that there is a mass of regulations that make this impossible to work. Indeed, we consulted on that matter and we are modelling this on flexible working in order to use a system with which employers and employees are familiar. Our current intention is to have only two or three sets of regulations.

Amendment 79 would prevent those employees whose employers have in place systems for considering training needs from being able to make a request for time to train. It would, as the noble Baroness, Lady Sharp, said, get rid of the flexibility that will exist. I appreciate the aims of this amendment—the need to recognise within the new statutory scheme what good employers are already doing to assess their employees' skills and training needs and to reduce the burden on business. I assure the noble Lord, Lord De Mauley, that we do not want to increase the burdens on business. We are at one with him on that. We believe that those employers who are doing the sorts of things that he drew to our attention will not be faced with additional burdens.

However, we do not feel that the proposal put forward by the amendment is the right way to go about it. The amendment risks, by introducing an element of qualification, complicating the eligibility provisions and creating a landscape that is perhaps confusing. For example, it is not at all clear from this amendment what exactly "acceptable arrangements" are or how they would be judged. An employee would not know whether they could make a request unless they knew whether or not their employer's systems were of the required standard. That could put off employees from making requests, including potentially a great many who are in greatest need of training.

Our preference, therefore, is to leave the right open to all employees who satisfy the basic eligibility criteria. They will be able to judge whether or not they need to use the right to gain access to training. As I said, it is our strong expectation that, where an employer has good systems in place, they will be unlikely to receive many, if any, requests under these provisions. They will already have had a serious discussion on training with their employees.

In Committee in another place, an alternative proposal was put forward to provide employers with an additional reason to refuse requests where they have already invested time and effort in considering their staff's training needs and acted on meeting those needs where necessary. We said at the time that we could introduce such a reason via regulations using the power at new Section 63F(7)(j) if it was supported through consultation with stakeholders. However, our initial discussions have revealed mixed views and it is not clear whether it is actually needed.

None the less, in the light of the views expressed today, principally by the noble Lord, Lord De Mauley, I am happy to commit to the Committee that, after the new provisions have been in force for a year, we will carry out a review, in consultation with stakeholders, to examine whether there is sufficient evidence to support the need for such an additional reason of refusal to be provided. I emphasise that it is not our wish to create any unnecessary or additional burden. On this basis, I would be grateful if the noble Lord would consider withdrawing the amendment.

Lord de Mauley (Conservative)

I thank the Minister for his remarks, which seemed in fact to include a rather better case for my amendment than I made myself. He seemed to say that two-thirds of employers provide very good and proper provision. The amendment would limit the effect of the clause to those employers who do not have acceptable arrangements in place.

I thank my noble friend Lord Eccles for his contribution and I am grateful to the noble Baroness, Lady Sharp, for expressing her sympathy with this amendment. My next amendment, Amendment 79A, will tackle some of the responsibilities of the employee—a matter that she raised. Like my noble friend, I worry about bureaucracy being piled on already compliant employers. I will read the words of my noble friend and of the noble Baronesses, Lady Sharp and Lady Wall, as well as of the Minister, and consider his helpful offer, to see whether I feel the need to return on Report with a better form of wording. In the mean time, I beg leave to withdraw the amendment.

Amendment 79 withdrawn.

Amendment 79A

Moved by Lord De Mauley

79A: Clause 39, page 17, line 37, leave out "may make" and insert "wishing to make a request in relation to study or training must complete"

Lord de Mauley (Conservative)

Our Amendment 79A is designed simply to seek assurances that the burden for filling out the form to make a request for time to train must fall with the employee, not the employer. The Bill states:

"The application must be made for the purpose of enabling the employee to undertake study or training (or both) within subsection (4)".

This subsection, therefore, does not make it completely clear that the administrative burden of filling out the form must be considered to have fallen on the employee.

Surely if as an employee you are given this great right, the least that can be expected of you is to take responsibility for completing the application. We simply want to hear from the Minister that this would be the case. I beg to move.

Lord Young of Norwood Green (Labour)

Amendment 79A seeks to make it clear in the Bill that a qualifying employee wishing to make a request in relation to study or training under new Section 63D must complete an application. We do not think that it is necessary to make this change. I hope that the noble Lord, Lord De Mauley, will understand why when I make it clear that we have built in the safeguards and precautions that he rightly sought.

New Section 63D(1) establishes the right of qualifying employees to make an application, and subsection (3) requires that the application is made for the purpose of enabling the employee to undertake study or training. We define a key element of the policy, that requests have to be for training that will improve the employee's effectiveness and improve business performance, at new Section 63D(4). New Section 63E then sets out in more detail what an employee must do to make an application—which lies at the heart of the noble Lord's concern—including what information must be included in the application at new Section 63E(4).

If the principal concern behind the amendment is around how exactly an employee would make an application, I am happy to confirm that regulations made under the power at new Section 63E(5)(a) will make it clear that employees must make applications in writing. We have sent copies of the draft regulations to opposition spokespersons, Cross-Bench liaison Peers and noble Lords who have spoken in debates prior to today. I shall also place a copy of the regulations in the House Library.

We agree that it is important for employers that an application is made in a clear way, so that the consideration process is as simple as possible. I shall make sure that these concerns also are addressed in the guidance. I hope on this basis that the noble Lord will agree to withdraw the amendment.

Lord de Mauley (Conservative)

I am grateful to the Minister, who is correct in his understanding of the effect of the amendment and for his confirmation that that is what is intended, but I simply do not understand why it cannot be placed at the beginning of the new section, where it will be most effective. For that reason, I should like to test the opinion of the Committee.

Viscount Eccles (Conservative)

I shall be brief. I would still like to make an argument for the loosening up of Part 6. On the question of who is doing enough training and who is not, there is an element of chicken and egg. It is easy to say that it is those employers who are not doing enough training who go under in this period of very rapid change, but it could of course be because they are going to go under and do not have a market position that is going to last for much longer that they find themselves in the difficult position of not being able to do enough training.

I should also like to come back to the regulations under Part 6. I am not sure how many there will be, but it is possible that there will be 12—that is the number of times that regulations are mentioned. Either there should be more in the Bill, so that there is less need for regulations, or some of the powers should be reconsidered and dropped. We already have a very rapid increase in the amount of law and much of it is achieved by the weight of secondary legislation. The Government should have another look and see if they really need all these regulations. If they decide they do not, I, for one, will be very pleased. I beg to move.

Baroness Sharp of Guildford (Liberal Democrat)

I give some support to the noble Viscount's view that the number of references to regulations in this small section of the Bill is quite excessive. It gives the impression that you cannot do anything without reading a lengthy screed of regulations. I read it through with a young person who is working with me as an intern and we were both rather appalled by the degree to which the really very simple notion that an employee has the right to ask his employer if he might have time off for training—he has the right to ask, he does not necessarily have the right to take it—will become very complicated if he actually wants to do it. He will clearly have to have a special 63D form which he will have to fill in in the right way, and then there are all the complications about appeals, if he wants to appeal.

The other day in Committee, we had a very good debate about the report produced by the committee chaired by the noble Lord, Lord Filkin, on the burden of regulations on schools. This is not about schools, but, as was pointed out then, a lot of attention is given to regulatory reform in the private sector, but not enough in the public sector. This is largely a question of regulations on the private sector, but nevertheless, I have quite a lot of sympathy with the noble Viscount, because the number of regulations proposed seems excessive.

Lord de Mauley (Conservative)

We support the right of employees to ask for time to train, but I share my noble friend's concerns about the bureaucratic burden in this section. I was therefore delighted to hear the words of the noble Baroness, Lady Sharp, who made a similar comment. It is to be hoped that most requests would have a clear benefit for both the employer and the employee. There will, however, doubtless be occasions when this cannot be the case, so I look forward to the Minister's response as to what should happen in these situations.

Lord Young of Norwood Green (Labour)

Amendment 81 would have the effect of allowing employees to request training other than that which would improve their effectiveness at work and the performance of their employer's business. We kept this fairly tight, because we did not want to make too much of a burden. Amendments 80 and 82 would remove many of the requirements with which an application must comply in order to qualify under the new Section 63D, including the requirement for a Section 63D application to state that it is being made under that section. While we understand the desire of the noble Lord, Lord De Mauley, to reduce bureaucracy—we are with the noble Viscount, Lord Eccles, on that one—this would have the effect of allowing many general requests concerning training which would no longer be limited to improving their effectiveness at work and the performance of the employer's business. It would allow these much more general requests to be captured and it would also risk employers being unclear whether the request had to be dealt with in accordance with the statutory procedure.

On Amendments 80 and 81, we want it to be very clear to employees that they can make requests under these provisions only for study or training which will improve their effectiveness or business performance. The close linking of this right with business-relevant skills was set out in our consultation paper and was strongly supported in the responses we received. We do not agree that it is right to remove this link to business-relevant skills and improving the performance of the company, as the amendment would do. I accept that requests could still be refused if they were considered not to increase the employee's effectiveness at work or improve the performance of the employer's business, as Section 63F(7)(a) enables refusal on this basis and would remain unaltered. However, the amendments would mean that employers would have the burden of considering a potentially significant number of requests under this process, which would not be likely to benefit their business.

I turn to the concerns expressed by the noble Viscount, Lord Eccles, which the noble Baroness, Lady Sharp, endorsed, about the burden of regulations. I make it clear that we do not need a separate set of regulations for each regulation-making power. It is common for one set of regulations—that is, statutory instruments—to be made using several different powers. That is why we think that only two or three sets for Clause 39 will be needed.

Our primary objective is to persuade or encourage those employers who currently do not engage with any training. They are our primary target. We made it clear in the consultation process that we were talking about business-relevant skills, which would improve the employee's effectiveness or the performance of the employer's business. We want it to be clear to employers which requests have to be dealt with under the statutory procedure and which do not. We wish to maintain the position that a Section 63D application must state that it is one. It is important to recognise that these provisions are not intended to, and do not, replace existing systems for considering training needs. When these are available, employees can, and, we strongly suspect, will, continue to use them. When good systems are not available, employees will, through this legislation, have a route to request and discuss their training needs with their employer. A request for training that will improve performance or benefit the performance of the company, if it were refused, would have to be justified.

I trust that, in the light of those comments, the noble Viscount will withdraw his amendment.

Viscount Eccles (Conservative)

I thank the Minister for his reply and thank my noble friend and the noble Baroness, Lady Sharp, for joining in the debate. I should probably have done more to explain what my amendment would do. If it were passed, it would probably lead to a need to rewrite Part 6A, because I doubt that the wording of my amendment would stand up on its own.

The Minister's last argument seemed to be exactly what we have been saying—that, to the maximum extent possible, employers who already have good systems with which their employees are content, which are positive and productive for both, should in some way be left loose enough not to be subjected to the full rigour of Part 6A. In that connection, I have looked at new Section 63D(8), which comes right in the middle of the clause and says:

"Nothing in this Part prevents an employee and an employer from making any other arrangements in relation to study or training".

Is it right to interpret that to mean that it is entirely a matter for the employee to decide whether he or she starts the whole process? That is how Part 6A reads. Therefore, it might be helpful if we had the Minister's assurance that employers and employees are entirely free to agree whatever they want to agree about additional study and training, without reference to this part.

Lord Young of Norwood Green (Labour)

I assure the noble Viscount that it is absolutely the right of employees to initiate the process and it is entirely up to them to agree what is acceptable, provided that it is clearly acceptable to both parties.

Viscount Eccles (Conservative)

I am grateful to the Minister for that assurance. It might be helpful if that provision was at the beginning of Part 6A, rather than where it is placed at present.

I accept that regulations can be consolidated, but each individual statutory instrument gets longer. I still feel strongly that there is too much power in the hands of the Secretary of State to change the rules of the game. New Section 63E(4)(c) gets down to the detail of saying,

"contain information of any other description specified by the Secretary of State in regulations".

The thinking behind the powers of the Secretary of State to make regulations has been very loose on this occasion and needs to be tightened up. I may well feel that that is sufficient reason to come back to the subject on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

Amendments 81 and 82 not moved.

Amendment 83

Moved by Baroness Sharp of Guildford

83: Clause 39, page 19, line 41, at end insert "which shall include at least a right to a first decision on the application and thereafter a right to appeal against that decision"

Baroness Sharp of Guildford (Liberal Democrat)

I shall speak also to Amendments 84 to 88. All these six amendments are probing amendments, dealing with different aspects of this issue of time off for study. Amendment 83 is about what happens if a request for time off for study is turned down and whether there is a right of appeal. New Section 63I allows the employee the right to complain to an employment tribunal if he thinks that the employer has not acted in accordance with regulations, but the Bill contains no provision to guarantee a right of appeal. The nearest thing that we get is in new Section 63I(3)(a), which implies that a decision may be referred to an appeal, but the language is obscure. The purpose of the amendment is to ask the Minister to tell us, in relatively plain English, precisely when an employee has the right to appeal an employer's decision.

Amendments 84 and 85 seek to clarify new Section 63F(5) and (6). Subsection (5) says:

"The employer may refuse a section 63D application only if the employer thinks that one or more of the permissible grounds for refusal applies in relation to the application".

It is what the employer thinks that is important here; subsections (5) and (6) refer to what the employer thinks. Amendments 84 and 85 seek to insert the word "reasonably" in relation to what the employer thinks.

We put the amendments forward in Committee in the other place, but we were not satisfied with the Minister's arguments. First, the Minister argued that since the grounds on which employers may refuse a request are already very extensive, asking whether the employer has reasonable grounds to think that he or she meets the permissible grounds for refusal adds an extra dimension of uncertainty. Secondly, the Minister argued that these provisions are modelled on the provisions relating to requests for flexible working hours, which contain similar provisos and grounds for refusal but have no requirement for the employer to have reasonable grounds for thinking one way or another. The flexible working time rules have worked well. If an employer turns down a request he or she has to explain to the employee why they have done so, and, by doing so, inevitably has to set out the grounds for refusal. If those are based on incorrect facts, the employee has the right to challenge them. Nevertheless, that still leaves us with the fact that the right to request time off for training, like the request for flexible working time, remains a limited right. It is a right to request training but not to receive it.

We worry about those employers who do not value training. We know that they need to be nudged to do better and that they will be all too ready to raise problems in relation to meeting consumer demand or reorganising staff duties. As the grounds for refusal are already so wide we need the test of reasonableness. That is why we urge the Government to consider whether it should not be in the Bill.

Amendment 86 again raises the issue of what is reasonable. Here we are looking at the burden of additional costs the employer would have to meet if the employee were allowed time off for training. We propose that the employer should be asked to do a cost-benefit analysis before turning down a request on cost grounds and to show that the burden of additional costs would be greater than the value the firm would derive from the training the employee wants to undertake. Again this was debated in the other place. The Minister argued that it would inhibit the use of the additional costs argument unhelpfully because employers would use it only when they were able to show that additional costs were greater than any value gained from study, and that if that were the case that they could also call in aid new Section 63F(7)(a), that the proposed course of study would not improve the business's performance, or new Section 63F(7)(g), that it would have a,

"detrimental impact on performance".

What the Minister seems to have neglected in that reply is that it is precisely because we think the employer should be doing this implicit cost-benefit analysis that we want the term "reasonable" included. We want employers to think seriously about training and the value it gives to them. It is all too easy to claim that it will create an additional costs burden. The amendment forces them to think a little about the other side of the equation.

Amendment 87 relates to new Section 63F(7)(c) about the effect of meeting consumer demand and seeks to insert the word "significant" at the beginning of the provision so that there would need to be a significant detrimental effect on the firm's ability to meet consumer demand. Again we are into the issues of reasonableness. If the employee is, say, a teacher, and as a result of training would be better able in the long run to do the job, how do you balance the short-term detriment in terms of the cost—for example, the fact that the class has to have an extra supply teacher—against the longer term gain in terms of having a better teacher.

Finally, Amendment 88 seeks to probe precisely what is meant by new Section 63F(7)(h) and the term "insufficiency of work". In Committee in the other place, the Minister said that the Government did not want there to be any suggestion that an employer would have to provide alternative work for the employee at relevant times such as where the employee suggested a change in their current working arrangements to accommodate training. But nobody has suggested that. What we want to know is what constitutes an "insufficiency of work". Will the Minister clarify how that can be used as a ground for refusal? I beg to move.

Lord de Mauley (Conservative)

As the Bill stands, the Government are attempting to introduce legislation that would give employees a right to request time to train. The Explanatory Notes are clear that the employer must then consider this application and it must be accepted unless one of the reasons for refusal allowed by the legislation applies. These reasons are then laid out in new Section 64F(7) on page 20 of this draft of the Bill.

We are generally in favour of the principles behind the Government's intentions in this part of the legislation. We agree that people should be allowed and, indeed, actively encouraged to take advantage of opportunities to gain further training and skills from within their employment.

However, there are situations where, perhaps despite the best intentions of employers, these opportunities may not be forthcoming. In some situations a less enlightened employer might prefer to let a talented and hard-working employee continue in an existing role, rather than allow the individual the room to feed ambition and train to a higher level. Such an employer might be reluctant, for example, to let a good waitress or waiter train to be a restaurant manager because of the risk that the replacement waiting staff may not be quite as efficient or effective as the waitress who is looking to equip herself for promotion. Of course, no one can condone this attitude. Nevertheless, we should not overexaggerate this risk. The consultation response, published by the department last year showed that only 57 per cent of employers in England felt that time to train would help skills development in their organisation and that only 28 per cent said that the introduction of the new right would cause them to alter their behaviour at all. The document published by the department stated:

"These relatively low figures are largely explained by organisations' existing positive attitude and commitment to training rather than because of any particular reservations about the time to train proposals".

We are of the opinion that employees should have the right to a serious conversation with their employer about their skills development, as the consultation document stated, and, as I have said, we support the right to train. However, we would be cautious about extending our full support to all these amendments as it is also important to ensure that the administrative burden on employers should be kept to a minimum.

The Institute of Directors—I declare an interest as a member—is increasingly concerned about the regulatory approach the Government are taking to ensure that the UK becomes a world leader in skills. It comments that these proposals add to the pipeline of impending regulations that will add to the administrative burden on employers and that at a time of recession this is spectacularly unhelpful. I would perhaps not go quite that far. We think that the right to request time to train is an important part of increasing skills and of allowing every employee to reach his or her potential. We do however want to ensure that at the same time employers are not disadvantaged by these proposals, especially given the current economic situation.

While it is right that employees should be able to request the time to train, it does not seem right that the permissible grounds for refusal should be so narrowed that it becomes very difficult for an employer to refuse at all.

Amendments 83 to 85 seem very sensible. If an employee has made a request for time to train, it is right that the employer should at least have to make a decision in response. There may also be situations where a right to appeal is appropriate. Perhaps the Minister will inform us as to whether any research has been carried out into the administrative impact of inserting a right to appeal against the decision. Moreover, the injunction on the employer to act reasonably as regards the grounds for refusing an application is difficult to argue with.

However, Amendments 86 to 88 redefine the permissible grounds for refusal by considerably narrowing the ability of employers to find a way to refuse the application, even if they are struggling to meet the demands. I fear that these last amendments assume that all employers will be searching for a way to get out of offering training. I do not accept that that will be the case. Proper training is essential in any business. A business that does not reskill and retrain its staff will not be successful. I very much look forward to the Minister's response.

Baroness Howe of Idlicote (Crossbench)

I have considerable sympathy with these amendments but, like the noble Lord, Lord De Mauley, I think some are better than others. It takes me back very much not just to "train to gain", which was clearly a sensible idea, but also to the right the European Union directive gave women with family responsibilities to request flexible working that, as we all know, has been extended more and more and seems to be quite beneficial for employers.

Certainly, the right to be "reasonable" on the basis that you make a decision seems absolutely essential. Maybe the Minister will say that it is not necessary, but "reasonableness" in all these things, where there is a pretty wide degree of discretion, is, surely, something that we should all be in favour of. I am not necessarily convinced by all these amendments. I take into account what the Institute of Directors has to say, and it has a point. Nevertheless, we should be quite sympathetic to these amendments.

Baroness Wall of New Barnet (Labour)

I, too, have some sympathy with a number of the amendments raised by the noble Baroness, Lady Sharp. However, I have an issue with Amendments 87 and 88. Most organisations have a very clear understanding of whether their performance is being detrimentally affected. Having "significant" in the amendment raises the dilemma of what this means and how it would be measured. It is usually how the order book is placed and all the rest of it. In my years as a trade union official and working with a sector skills council, I have never experienced that there has been a necessary adjective that needs to be there.

There is something a bit perverse about changing "insufficiency of work" to,

"the inability to provide sufficient work",

as though the employer was conniving in some way not to have this work. Most businesses, whether small or large, operate in a transparent way, where you know whether there is business coming in or not. I personally have great deal of difficulty with both of these amendments in particular.

Viscount Eccles (Conservative)

It is precisely this kind of debate that makes me wish that we had a general duty on employers and much less detail in the way that that general duty should be carried out.

Lord Young of Norwood Green (Labour)

I understand the desire of noble Lords on all sides to get the balance right between employer and employee. That is what we are trying to do. I will see whether I can reassure noble Lords on the balance.

Amendment 83 would place on the face of the Bill a requirement for the regulations to be made under new Section 63F(4) to require a right to a first decision on a request for training and a right to appeal against that decision. I reassure the noble Lord that we intend to use the power at new Section 63F(4) to define a process in regulations based on the one already in place for flexible working that would cover first decisions and appeals.

Again, I have sent indicative regulations to the noble Lords who have spoken in the debates so far. These regulations would require the employer to hold a meeting to discuss an application within 28 days of receiving it and to provide a decision in writing within 14 days of that meeting. The regulations will also include a right for an employee whose application has been refused to appeal to his or her employer—I stress that—in the first instance. These details are better dealt with in regulations where they can be adjusted more readily in the light of practice and experience. This model, in which stakeholders were consulted, again, follows the one used for the flexible working requests.

Amendments 84 and 85 would introduce a concept of reasonableness to the basis on which an employer may refuse an application. As currently drafted, the Bill enables an employer, relying on his or her own judgement and knowledge of his or her business, simply to form a view about whether one of the grounds applies. If these amendments were accepted, an employer could no longer do that. Let us be clear: instead, they would have to consider whether they were acting "reasonably" in forming that view—in other words, to put themselves in the position of an objective outsider and decide the application from that perspective.

Including the term "reasonably thinks" introduces a level of uncertainty about the employer's decision, and creates a more complex and burdensome test for the employer that we think is unnecessary and that we are genuinely trying to avoid.

I agree with the comment that the noble Baroness, Lady Sharp, made in her contribution, when she talked about this being a "limited right". It is. In the vast number of circumstance, as the noble Lord, Lord De Mauley, drew to our attention, many employers will not have to worry about this right because they are already training their employees. There are also still a significant number who do not do so. They are the ones who we are trying to address. The example of the teacher that the noble Baroness, Lady Sharp, brought up is the one I would be least worried about in these circumstances. As a school governor, I cannot believe that a request for time to train would be unreasonably refused. I will come to the question about insufficiency and detriment later.

Introducing "reasonably" will create uncertainty and will make it more burdensome for employers, rather than looking simply at the grounds that we have defined. In practice, when considering requests, employers would have to consider which of the permissible grounds for refusal are relevant, and why. They would then need to explain this decision to their employee when they notify them of their decision. If the employer is acting unreasonably, it will be difficult to give the necessary explanation in the decision notice, and it would be open to the employee to challenge the decision on the basis that it is based on incorrect facts. That keeps it as simple as we possibly can make it.

Amendment 86 would narrow the cost ground of refusal so that it applied only where the costs relating to the training outweigh the value of the proposed training and are an unreasonable burden. In our view, cost considerations may be a legitimate factor in an employer's decision to refuse an application in a wider variety of cases than that proposed by the amendment, where, for example, employers may simply be unable to meet the costs of covering an employee's absence, however great the potential benefit to the business.

Amendment 87 would mean that an employer could refuse an application only where agreeing it would have a "significant detrimental effect" on the employer's ability to meet customer demand rather than simply a "detrimental effect" on this ability. While I understand that this amendment is intended to clarify the test, we do not want to try and quantify the level of detriment that would need to apply in order for a request to be refused. It may be that an employee's absence at that time would put an unreasonable strain on the performance of the business. It may be just a question of timing and something that can be resolved in the future. However, the employer should not have to try to quantify that in the way that is suggested in this amendment by the introduction of the word "significant".

Provided that there is some detriment, if it is a level of detriment that the employer does not wish to, or cannot, bear, then it is right that they should be able to decline a request on this basis, just as they can under the flexible working arrangements. I stress that again. We tried to model that procedure so that we are not introducing a fresh procedure. There may be genuine instances where a particular request will have a detrimental impact that employers feel make it impossible to accede to a request, and I have instanced a possible example of that.

While we believe that these decisions are best left to employers, there are safeguards in the system—I stress that to the noble Baroness, Lady Sharp—for the employee. As I said, it is a question of balance. The employer will have to explain why the detrimental impact ground applies, and, ultimately, this view could be tested at an employment tribunal. We do not want that to take place; but it could. If an employer was adopting a situation where it thought that it could refuse all requests for time to train and not engage in a proper appeals procedure, some of these may eventually be tested at an employment tribunal. We hope they will not go as far as that, but it will depend on the circumstances.

Amendment 88 would have the effect of redefining one of the permissible grounds for refusal set out in new Section 63F(7). Rather than specifying "insufficiency of work", it would refer to inability to provide work during the periods that the employee proposes to work. We do not want employers to be obliged to find something for the employee to do at times when the employee proposes to work in order to accommodate training. Instead we want the employer to consider in the light of the current business situation how much work is available during the periods proposed. That is the correct position. No doubt we will find that employers are prepared to be flexible in many cases.

As I said, this new right is modelled closely on the flexible working arrangements which employers are familiar with and which we know work well. That is important. We are not introducing a new procedure here; we are introducing something of which both employers and employees already have experience. This close alignment between the two rights has been welcomed by stakeholders and was supported in the consultation responses as something that would be helpful to employers. We therefore wish to maintain this, and we do not want to create unnecessary differences between the two rights that have the potential to cause confusion.

On the reasonableness test, it was asked whether employers who do not offer training will not simply refuse applications. We think that it may well trigger a discussion about training and that employers may well see the advantages of training. We think that the balance is correctly set where the employee can appeal on grounds of procedure or incorrect facts; we think that is the right way to approach it. In these circumstances it is best for both the employer and the employee to keep it simple and modelled on existing procedures. Therefore, in the light of the explanation and assurances given, I would be grateful if the noble Baroness would consider withdrawing the amendment.

Baroness Sharp of Guildford (Liberal Democrat)

I am grateful to the Minister for his explanations. These are probing amendments seeking clarification and the wording of certainly some of them is not necessarily perfect. The idea was to try to get a clearer picture. On the first amendment, I am grateful to the Minister for making it quite clear that there is a right of appeal and that it will be spelt out in the indicative regulations that he will circulate to us.

I now understand better the Minister's objection to including "reasonably" in relation to what the employer thinks. The question of what the employer thinks is somewhat subjective, and it is being left as a somewhat subjective decision. One accepts that. As the Minister said, the provision is modelled on the flexible working time directive, which has worked well. On narrowing down the cost grounds for refusal, I very much hope that the employer will do a back-of-the-envelope cost-benefit analysis to see whether it is worth doing.

The answer with which I feel least satisfied was that to Amendment 87 and the issue of "significant". If we say that we do not want to quantify the element of detriment it will leave the issue extraordinarily uncertain. The answer, as the Minister says, is that it will have to be tested at a tribunal. However, the term "significant" would have to be tested at a tribunal in exactly the same way.

I again thank the Minister for his explanation and I beg leave to withdraw the amendment.

Amendment 83 withdrawn.

Amendments 84 to 88 not moved.

Amendment 89

Moved by Lord De Mauley

89: Clause 39, page 21, line 3, at end insert—

"( ) fails to attend more than two consecutive periods of study or training"

Lord de Mauley (Conservative)

As will be clear from the debate on the previous group of amendments, we support the time-to-train proposals. It is fundamentally important to ensure that those who wish to build on their skills, achieve their ambitions or improve their standing should be allowed to make an application to their employer for time to do it. Nevertheless, we also want to make it very clear that the interests of employers must be taken into account. The IOD, in its response to the Government's impact assessment of these provisions, stated that,

"no evidence was presented to support the implication that employers are not open to training requests, deny employees the opportunity to discuss training needs or do not treat requests seriously".

Does the Minister not accept that many employers already do their utmost to ensure that employees are constantly developing their skills training? Does he not support the voluntary measures that many businesses already use in order to make sure that this training can occur? Does he not accept that many businesses do this purely because of good business sense because further training means better staff, which in turn means a more efficient business?

The right to training is very important. Nevertheless, it is vital to find a way of ensuring not only that employees retain their right to training but that employers are not overburdened. It is this thought that is behind these amendments.

Amendment 89 would mean that if an employer has agreed to a request for training, or a part of it, then the employee must inform his employer if he fails to attend more than two consecutive periods of study or training. It seems to me that this is an unobjectionable duty on the employee. As we all know, with rights come responsibility. If the employee has enjoyed the right but also the privilege to request time to train, then it should be incumbent on him also to inform his employer if he is not, for whatever reason, able to reap the benefits of this education and training.

Moreover, we would go further. The Bill as it stands allows the Secretary of State to make regulations regarding the way that the employee will inform the employer of any changes in the training he will carry out. We would like to see a provision in the Bill which states that if an employee fails to start, attend or complete study that has been agreed with the employer, it should constitute grounds for removing the time off.

Does the Minister not accept that while there is clearly an argument for allowing employees to ask for time off, they should not be allowed to abuse this right? Does he not agree that we must also protect employers and businesses from the risks associated with the fact that some people may find themselves unable to attend training, or indeed may have abused the system to the disadvantage of the employer? We want to protect the employer from losing out.

There is an argument, of course, that if the employer is awarded the right to withdraw training that has not been completed to the terms of the agreement, there should be a commensurate right for the employee to appeal against this result. This may result in greater bureaucracy. Nevertheless, I am not sure that this is an entirely satisfactory response. We must not draw away from finding a solution which would protect employers simply because of the complexities involved. It is important that these issues are resolved. I look forward to the Minister's response, and I beg to move.

Baroness Wall of New Barnet (Labour)

Perhaps I may suggest that Amendment 89 probably relates to new subsection (2), at the bottom of page 20, which talks about failing,

"to complete the agreed study or training".

Amendment 89 seeks to describe what that means whereas Amendment 90 refers to paragraph (c). I think that the Bill is strong enough. If a trainee—it does not matter whether he or she is in an apprenticeship—fails to attend a course, the college will automatically advise the employer that they have not attended. They do this regularly, on a weekly basis. If I am supposed to go every week but do not turn up, my employer will get a phone call saying, "Do you realise that Margaret Wall hasn't turned up?". So I think that that is taken care of.

On the other amendment, in reality new Section 63H(2)(c) certainly says that if an individual,

"undertakes, or proposes to undertake, study or training that differs from the agreed study",

the agreement would be broken. The employee would lose the opportunity to have that training leave continued. They would not be doing what the agreement asked them to.

Baroness Howe of Idlicote (Crossbench)

I found both those amendments perfectly reasonable. However, having heard what the noble Baroness, Lady Wall, has just said, maybe they are covered sufficiently, although we would need a little more emphasis on how the employer will get to know the situation. We must be assured that all colleges behave as described by the noble Baroness, Lady Wall.

Lord Young of Norwood Green (Labour)

We certainly sympathise with the desire of Members opposite to keep burdens on business to a minimum and to get the balance right between employers and employees. I hope that the noble Lord, Lord De Mauley, believes me on that score. I accept his point that many employers do their best to provide good quality training. We also accept that this is a question of rights and responsibilities, and not just about the employer's responsibility or employee's rights, but also about the employee's responsibilities in this matter. There is no difference between us on this.

Amendment 89 would place a requirement on employees to inform their employer if they fail to attend three or more consecutive periods of study or training. As my noble friend Lady Wall said—it is so good to have her wise counsel on these areas—the provisions already cater for this. New Section 63H quite rightly requires employees to inform their employer if they fail to start or fail to complete the agreed study or training, and also if they do, or propose to do, study or training which is different to that which they agreed with their employer. We have covered the three circumstances: they fail to start; they fail to complete; or they embark on something that was not agreed with the employer. So if they do not attend their course as arranged, that would be a change that would be covered.

My noble friend Lady Wall made the point that colleges and training providers have a responsibility that they exercise in saying to employers, "Well, I know that you think that your employee is attending this training course, but I have to advise you that he or she is more often honouring that in the omission rather than the commission". That is already current business practice.

Amendment 90 proposes that the employer should be permitted to withdraw support on the grounds that the employee had failed to start, attend or complete the agreed study or training. However, as the noble Lord, Lord De Mauley, recognised, providing such statutory provision for employers risks adding an additional level of bureaucracy and further burdens on employers, as we would need to consider giving a similar level of statutory protection to the employee to be able to appeal such decisions.

We do not want to do that, but do want to emphasise the noble Lord's point about the responsibilities of an employee. In our view, it would be better if, at the time of agreeing a request, the employee and employer also agreed any terms under which support may be withdrawn. This recognises the need for a certain level of flexibility and sensible discussion by both parties that will be necessary for these provisions to work.

In many cases, withdrawal of support will be less of an issue, particularly where it has been agreed that the employee will attend a course of only a short duration. In other cases, it may be appropriate for any breach on the part of the employee to be dealt with through the employer's disciplinary procedures.

However, I agree that these are important matters and, in the light of today's debate, I will certainly commit to providing guidance that explains employees' and employers' responsibilities under these provisions. I would be grateful if the noble Lord would consider withdrawing the amendment in the light of the explanation and assurances that I have given.

Lord de Mauley (Conservative)

I am grateful to the noble Baroness, Lady Wall, for her comments, which I will consider carefully, and to the noble Baroness, Lady Howe, for her contribution. Before I withdraw the amendment, can the Minister confirm that all colleges are required to report non-attendance to employers? That was suggested by the noble Baroness, Lady Wall, and the noble Baroness, Lady Howe, asked about it.

Lord Young of Norwood Green (Labour)

We will write to the noble Lord to confirm the normal practice.

Lord de Mauley (Conservative)

Very well. I thank the Minister and am happy, on that basis, to beg leave to withdraw the amendment.

Amendment 89 withdrawn.

Amendment 90 not moved.

Clause 39 agreed.

Schedule 1 : Employee study and training: minor and consequential amendments

Amendment 91

Moved by Baroness Morgan of Drefelin

91: Schedule 1, page 161, line 34, at end insert—

" In section 236(3) (orders and regulations subject to affirmative Parliamentary procedure), after "47C," insert "63D, 63F(7),"."

Baroness Morgan of Drefelin (Labour)

This government amendment takes account of the recommendations of the Delegated Powers and Regulatory Reform Committee, looking at the regulation-making powers in Clause 39. The committee's recommendation is that they should be subject to the affirmative, rather than the negative, procedure. It is appropriate that we should take these recommendations on board. I know that the party opposite has also tabled an amendment that is similar in effect, and I hope that the noble Lord will agree that the government amendment will take on board the concerns that I expect the party opposite to raise.

Lord de Mauley (Conservative)

I am grateful to the Minister. I think I am right, as she seemed to suggest, that we are both aiming to achieve the same thing. I do not know whether she can help on whether there is any difference in the effect of these amendments, other than the Government's being perhaps a little more elegant.

Baroness Morgan of Drefelin (Labour)

The advice that I have had is that there is no difference in the overall objectives, but the government amendment is technically correct. That is why we have tabled it.

Amendment 91 agreed.

Schedule 1, as amended, agreed.

House resumed. Committee to begin again not before 8.29 pm.

Committee (3rd Day) (Continued)

Lord Lucas (Conservative)

In moving Amendment 91A I shall speak to the other amendments in the group. These amendments are intended to give us a chance to look at Clause 40 as a whole and to discuss how the relationship between a local education authority and the colleges now being brought back under its wing is to be conducted. The Government express the core of this in Clause 40(1) which states:

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

I take that as pretty strong control and indeed that seems to be the way it is being interpreted by local education authorities, which even now are tramping around colleges saying, "We are not going to allow you to do that because we want you to do this", and generally putting a rather dirigiste interpretation on how the relationship will run. Indeed, that is the flavour I get from it as well. If a local education authority has a duty to secure that a particular kind of education is available, one that it decides on because it has to settle that the education is suitable, presumably it will use these powers over its colleges to make sure that they provide that education and do not provide other things.

Amendment 91A substitutes for the word "secure" the words "satisfy themselves" to indicate a different kind of relationship where it is the responsibility of the local education authority to make sure that education of a suitable kind is in place, but makes it clear that the authority itself is not responsible for providing that education. An authority will not have to take steps to ensure that the education is provided because, after all, it does not provide the education but merely directs one of the bodies under its control to do so.

That theme is pursued in most of the other amendments in the group, and certainly in Amendments 91B and 91C. Amendment 91D seeks to leave out lines 23 and 24. That is an amplification which really asks why a local education authority should be concerned about,

"the locations and times at which the location or training is provided".

Again, that moves into the timetables of the colleges subject to the local education authority's edict. I do not see why those details should be of concern to the authority. Amendment 91E provides that if the authority is going to take on all this control, it ought to be subject to the opinions of the people on whose behalf it says it is acting. Local education authorities appear to be doing this out of their own invention and direction rather than paying any attention to the people they should regard as their customers and, indeed, their masters in this matter.

Amendment 93A follows the general line I have laid out, while Amendments 100A to 100C underline what I said earlier in that they seek to change the relationship of the authority from one of master to provider. In other words, the relationship would change from one of controlling what colleges provide to looking at what the customers—the individuals who require the education or training—actually want.

That is almost the end of the group. Amendment 102B looks at the duty of LEAs to co-operate with each other. It seeks to reinforce the duty requiring local authorities to co-operate, particularly when there are a lot of authorities involved. A large further education college may well be serving 20 or so local education authorities altogether—some of the very big ones rather more than that. I want to increase the duty on local authorities to co-operate and make it clear what sort of co-operation is expected by saying that they have to co-operate not only in the interests of persons resident in their area but in the interests of persons resident in other areas. Colleges that they are responsible for, although in their area, may well be offering education to a very large number of people from outside their area. The whole direction the college takes, and the management of that college, should be in the interests of all the people it serves and not just the people in whose area the college happens to be. It does not seem to me that the local education authority's duty to those people outside its own area is clear enough. I beg to move.

Baroness Sharp of Guildford (Liberal Democrat)

I am interested in these amendments that the noble Lord, Lord Lucas, has put down—somewhat belatedly, if I might say so. It would have been good if he had alerted us to them a little earlier. I take on board the points he is making.

The noble Lord said that in his experience local education authorities are beginning to lay down the law. That is not my experience. Many local education authorities are only just beginning to wake up to the responsibilities they are going to have under this Bill. A lot of negotiations are taking place among authorities regarding who will be working where. We have run down the capabilities of many local education authorities and this is causing real difficulty. There was a time, 10 or 20 years ago, when local education authorities had very large numbers of advisers and people running them. Authorities that used to be providers of education have become very much commissioners of education. They have very slim-line central secretariats these days; they have been slimmed down to small strategic authorities. Authorities are having now to think about acquiring capabilities that they have lost.

I am interested that the noble Lord feels that they are already adopting a very heavy-handed approach. There are, I know, among the colleges fears of going back to the days when local education authorities ran them. That has been echoed by the noble Lord, Lord Baker. However, the colleges are quite clearly established now as corporations in their own right. Most of them have strong corporations and capable chairs and capable principals. I am interested that he feels that already we are seeing signs of local authorities wanting to extend their empires. We probably also come from, so to speak, a slightly different standpoint. On these Benches our vision is of local education authorities having more of these responsibilities and having a good deal of discretion to run the show and do things and do their own thing rather than being told by the YPLA or the SFA what they ought to be doing.

Our great fear is that these two new authorities, particularly the YPLA, far from being light-touch authorities, are actually going to be strong second-guessing authorities. From reading some of the briefings we have received, it seems that local education authorities are going to have to go cap in hand to the YPLA and show it their plans and get their plans approved. Then they are going to have to go to their sub-regional groupings and regional groupings and so forth. A lot of bureaucracy is still involved.

I am interested in what the noble Lord, Lord Lucas, said, although I do not fully understand where he is coming from and we do not fully sympathise from these Benches with the line that he is taking.

Lord de Mauley (Conservative)

This is a group of very useful amendments and I look forward to the Minister's response to them.

Does he understand the concerns regarding the devolution of the powers and duty of education of those within the 16-to-19 age group to local authorities? Does he accept that concern is felt that some local authorities will struggle to cope sufficiently to ensure that all receive the high standards of education to which they are entitled?

The Minister will doubtless attempt to reassure us that the student is given the right to travel to a different local authority for education and that the funding follows the student. I would welcome such assurances, but the key problem, highlighted by my noble friend's amendments, is not so much that we dispute the principle of education and training being provided by a functional and co-operating group of local authorities where the funding will follow the student wherever he wishes to go as the question how the Goverment intend to give effect to this proposal.

Can he tell us precisely how he envisages ensuring that local authorities co-operate in such a way that the best education is available to all and that the communication lines between transport, funding and other local services combine to ensure that people are encouraged to go to the area or education establishment which best suits their needs? It would be very useful to hear from the Minister how he envisages this working in practice.

Lord Young of Norwood Green (Labour)

I apologise in advance for what will probably be quite a lengthy contribution, because I want to place on record a range of key principles that have been addressed by the noble Lord, Lord Lucas, and, to some extent, by other noble Lords. Although I echo the point of the noble Baroness, Lady Sharp, about the belated nature of the amendments, we welcome them because they give us an opportunity to air some important issues.

Before I look in depth at the intention of the amendments, I reiterate why we are making these changes. They are driven by our desire to see a single, integrated service for children and young people from nought to 19—somebody from our group said "from cradle to college", which I thought was quite nice—to ensure that all young people get the best possible start in life and the best preparation to succeed and achieve as they get older. We are making sure that every young person will be entitled to a new curriculum and qualifications. We are making sure that even the most vulnerable of our young people have an offer of a suitable place in education and training, including provision for young offenders and effective progression into learning for ex-offenders, and that young people with learning difficulties or disabilities will have consistency of support from nought to 25.

The historic step to raise the participation age to 17 by 2013 and to 18 by 2015 demonstrated how far this country's sights have been raised. Through the Bill, we are making sure we have a system in place that achieves this aspiration and can continue to build on the highest-ever levels of participation that were seen for 16 and 17 year-olds this year.

All these changes put the young learner at the heart of a system which must make sure that the learning offer across an area and throughout a region is well planned, of high quality and responsive to meeting the needs of all our young people, irrespective of their age, ability or location. By transferring the duty to secure such a system to local authorities, we will provide the framework and impetus for these changes. Young people will benefit from having a single body which will be responsible for securing sufficient provision alongside information, advice and guidance services, and youth services. These amendments seek reassurance, first, on the ability of local authorities to take on these new responsibilities, and secondly, that they will always commission provision in the best interests of the learner.

I would like to address the concern of the noble Lord, Lord Lucas, about what he described as the dirigiste approach to FE colleges. This is not what we expect, nor, I must concur with the noble Baroness, Lady Sharp, what we have experienced, but if the noble Lord provides examples, we will speak to the LGA and the REACH director to ensure that local authorities are clear that we expect them to show strategic leadership, enabling and building strong, collaborative partnerships with colleges.

Let me look first at the ability and capacity of local authorities to carry out these new duties. Local authorities are uniquely well placed to take on the crucial leadership to continue and increase improvements in participation and achievement. They will have access to detailed intelligence about the needs and aspirations of their communities, through their responsibility for commissioning pre-16 education and through their ownership of Connexions. This intelligence will enable them to commission the 16 to 19 provision which their learners want and need. Local authorities will work together to plan and commission provision, including for our most vulnerable young people, in the full recognition, as noble Lords have already said, that many young people travel outside the local authority area in which they live to their local college or to their employer-based training place.

Immediate capacity will be provided by the transfer of around 950 LSC staff to all 152 local authorities to ensure that they have staff with the appropriate skills. These will be spread proportionately, depending on the size of the local authority. They will be supported by the Young People's Learning Agency which will use its resources to provide efficient and economic services to local authorities. I realise we will have to go a long way to reassure the noble Baroness, Lady Sharp, that this will be a light touch, rather than the firm smack of dictatorship. We share her view that the partnership between the YPLA and the local authorities should be supportive and collaborative.

Services will include the provision of data analysis to support planning and commissioning, which means, crucially, that the college and school need provide information only once, to be used many times. The YPLA will also have powers to commission provision directly, which we expect to be used where it is sensible to do so, for example, where specialist provision should be commissioned nationally. There are some examples of where there are particular national requirements. I think there is one dealing with veterinary education. I may not have got that right, but there are examples of where we need national commissioning, such as where a local authority is struggling to take on its new role.

Local authorities also have their own pre-existing expertise on which they will build. They have already shown that they can rise to the challenge of improving services for young people through developing their commissioning expertise and we have the success stories to show just how effective giving power to locally accountable councils can be. For example, Bournemouth, by reviewing its services for children in care, developing a planned commissioning approach and redeploying resources to more preventive services, has achieved a reduction in its number of looked-after children from 204 in 2003 to 150 in 2007 and a marked improvement in outcomes for children in care. The authority now scores in the top 25 per cent on indicators for stability of placements and educational outcomes. Surely that is a very welcome improvement and an example of the benefits of the greater involvement of local authorities.

Our performance management structures for local authorities will ensure that we continue to see such improvements in commissioning. From April 2009, local authorities are being assessed and reported on through the new comprehensive area assessment—CAA—undertaken by six inspectorates including Ofsted. There will be an annual CAA report for each local authority area, in November each year. The report will include a rating by Ofsted of the local authority's performance on children's services. This will be a key driver for improvement at a local level, helping to develop high-quality services for children, young people and their families.

At a local level, government offices will work with local authorities to improve their performance through identifying and sharing best practice, using knowledge and data to improve performance, negotiating and supporting the new statutory local area agreements and reviewing how local and national priorities, set out in the national indicator set, are being delivered. Nor are these changes imposed on unwilling local authorities. Local authorities have been involved in shaping the system, and are now all enthusiastic about the opportunities that this gives them to improve outcomes for young people in their area.

As Anne Futcher, head of integrated services at Luton borough council, says:

"The transfer of both commissioning and funding provides a very real opportunity for continuity of support for learners with special needs, and it's one we need to grasp. It will be the first time we have been able to plan for the needs of learners in the round, which can only be good for young people".

We are building on this existing expertise and enthusiasm as local authorities prepare for their new duties, and have invested in relevant support through both the React—Raising Expectations Action—programme, which has been developed with the Association of Directors of Children's Services and the Local Government Association. Launched in September 2008, it provides a package of support for local authorities, including a specific strand focused on pre-19 commissioning.

I turn to the vital matter of how the system will ensure that local authorities will always commission in the best interests of the learner, which is after all a shared objective of all of us. I sympathise with the noble Lord's concerns, and agree that we must make sure that a young person can access the most suitable learning for them—a point that the noble Lord, Lord De Mauley, focused on—no matter whether it lies within or outside a local authority boundary. We all know that young people will travel to learn, often across local authority boundaries, because it makes sense in their circumstances. We are making sure that young people will continue to access that same choice of learning.

The Bill provides that local authorities must secure enough suitable education and training opportunities to meet the reasonable needs of young people and that they cannot constrain the choices of the learner. This will be achieved because the funding will follow the learner; the provider chosen by the young person will get the funding for that young person.

I turn to the importance of the sub-regional group with regard to co-operation between authorities to enable some of this to take place. The sub-regional group will agree a lead commissioner for each institution, which will normally be the local authority in which the institution is based. The local authority will plan and commission provision from those providers in its own area. This commissioning will include provision for young people who travel into the local authority area to study. Each local authority will have an interest in other local authority plans to ensure that all its resident learners are being catered for. To ensure that this happens, local authorities will be required to co-operate with each other when carrying out their new functions. We will expect this duty to be fulfilled largely through coming together in sub-regional groups, which we know broadly reflect travel-to-learn patterns. Forty-three sub-regional groups have now come together and data show that around 90 per cent of learners within each grouping are likely to travel to local authorities within their sub-regional group to learn. I think that takes a lot of account of travel between local authority boundaries.

The key role of sub-regional groups is for the local authorities to work together to build a picture of demand, including the flow of young people across the individual and sub-regional borders, and to make sure that the individual local authority commissioning plans are coherent with each other. I give an example in which the noble Lord, Lord Lucas, might have a particular interest. Greenhead sixth-form college is an excellent college, which in 2007-08 took 16 per cent of learners from outside its home local authority of Kirklees. Kirklees local authority will be expected to reflect this proportion of learners in its commissioning plan, as this is where the young people are choosing to study. If the figure changed substantially in future commissioning plans, the sub-regional group will challenge this decision, as will the college. In that respect, this is similar to the ability of colleges to challenge commissioning plans by the LSC.

We know that sub-regional structures enable local authorities to work together to improve the outcomes for young people. For example, Devon, Cornwall and Torbay, by developing a sub-regional approach to the commissioning of residential placements for children in care, experienced a 450 per cent increase in placement choice as well as improvements in the quality of service received from providers. The sub-regional groupings will also serve to provide peer support and challenge. All local authorities within a sub-regional group will have an interest in ensuring commissioning is working in other local authorities in that group, and this will manifest itself in stronger collaboration.

As I have touched upon, it is even more likely that learners who have learning difficulties or disabilities that require specialist support may need to attend provision that is outside their area. There are additional safeguards in place to ensure these needs are met, and we will go on to consider these in more detail in further amendments, but I wanted to cover them briefly as I know this group of learners is of particular concern to the noble Lord.

Lord de Mauley (Conservative)

Do I understand the Minister right? He said that 90 per cent of students would be picked up by the sub-regional grouping concept. That implies that one in 10 will not be.

Lord Young of Norwood Green (Labour)

I cannot argue with the maths. We would say that on that basis we are picking up a huge amount. There may well be other cases. We would say that we are picking up most of the requirements in that 90 per cent. I will come back to the noble Lord on that 10 per cent.

The learning difficulty assessment, which is undertaken by the resident local authority as part of a wider person-centred planning process, should identify the support and the provision, including the provider and the programme. The local authority will need to have regard to the outcome of the assessment when securing provision. Therefore, if the assessment identifies, for example, a specialist provider that is outside the local authority's area, this information will be fed into national and regional planning processes so that a place can be commissioned as appropriate.

I want to make sure that I have picked up on all the points raised. The noble Lord, Lord Lucas, expressed a concern about why a local authority should be concerned about the timing and location of provision and whether that was about college timetables. To support participation by all young people, we must ensure that education is accessible. We recognise that people need and want to learn through different methods at different locations—for example, part-time working to satisfy raising participation age requirements around a job to support the worker and their families. Our colleges are used to providing flexible timetables. This is absolutely not a licence for local authorities to dictate college timetables. They will remain a matter for colleges.

On the independence of colleges, colleges will own the land and the buildings. They will remain incorporated bodies, employing their own staff and setting their own vision and direction. In sort, colleges will remain autonomous. It is about getting the right touch and collaboration and co-operation.

As to what happens to the other 10 per cent, they will be commissioned through the YPLA as a support to local authorities. The explicit assurance is—the noble Lord is right to ask—that nobody will lose out. We do have to ensure that.

I apologise once again for the length of the contribution. However, it was necessary, given the importance and complexity of some of these issues. I hope that I have reassured the noble Lord, Lord Lucas, that the system is designed to ensure that young learners are able to access the most suitable provision for them, and not the other way around. This will not lead to parochial commissioning practices within local authorities and will ensure that the best 16-to-19 providers, of whatever form, flourish and expand.

Lord Lucas (Conservative)

I cannot say I find myself much reassured by that. We seem to be replacing a system that has relied on the expressed wishes of the individual learners as reflected in their applications to colleges and the colleges' response to that with one that supposes that half a dozen people transferred from an agency in Coventry can get a grip on exactly what everybody in the local education authority's area requires by way of 4,000 different qualifications. Moreover, they would need to take into account their,

"ages, abilities, aptitudes ... learning difficulties ... the locations and times at which the education ... is provided".

I do not begin to understand how local education authorities are going to be capable of planning on that scale and in relation to that complexity. Can the noble Lord start by telling me what is meant by "commissioning"? If the local authority decides that it needs another 20 places for people to study hairdressing, say, how will it go about securing that? Will it issue an instruction to one of its local colleges to provide them? If it does, what happens if all those places are taken up by someone from a neighbouring local authority? How does commissioning and securing work in practice? Can the noble Lord give us an example?

Lord Young of Norwood Green (Labour)

I thought I had endeavoured to cover that. I am happy, however, to return to the issue again. Local authorities are uniquely well placed to take on the crucial leadership to continue and increase on the improvements in participation and achievement. They will have access to detailed intelligence about the needs and aspirations of their communities through their responsibility for commissioning pre-16 education and through their ownership of Connexions. That intelligence will enable them to commission the 16-to-19 provision their learners want and need. They have also agreed that they want to work together in sub-regional groupings. They have seen the advantage of that. They already know that they cannot possibly provide every facility in each local authority. A degree of co-operation is required already. Working in sub-regional groupings, which have been agreed to, and supported by, local authorities, ought to enable them to ensure that, when they are commissioning, they are commissioning to meet the needs not just within their local authorities but across the whole of the sub-regional grouping.

The noble Lord dismissed the transfer of LSC staff but we see as being important; they are people with the appropriate skills. There may be circumstances in which local authorities may need additional help in the commissioning process. Again, the YPLA will have resources to provide efficient and economic services to local authorities. This will include the provision of data analysis to support planning and commissioning, which crucially means that the college and school need provide information only once to be used many times. I can see the importance of getting clarity on the commissioning process, so perhaps there is some value in writing to the noble Lord to give him further details. However, we believe that because of the way in which it has been structured, with the sub-regional groupings and the support of the YPLA, it will be a collaborative process that ensures that commissioning does what it needs to do—to meet the needs of learners.

Lord Lucas (Conservative)

I am not sure that I am much wiser at the end of that. I agree with the noble Lord that local authorities are in a position of great knowledge and potential leadership, and I hope there is nothing in my amendments that goes against that. What I do not see is how they are in a position to direct.

The noble Lord talks about commissioning in relation to school places and then in relation to colleges. To the extent that a local authority commissions school places, it merely makes sure that places are available without specifying in any way what should be taught. You just commission a school, which acquires a board of governors and a headmaster and then goes off and decides what A-levels and GCSEs it will offer and whether it will have a diploma or vocational qualifications. They are decided entirely by the school. But as I understand it—I am sure that the noble Lord will correct me if I am wrong—commissioning in the sense employed in Clause 40 means specifying what particular courses should be taught and available, because otherwise the word "suitable" becomes quite difficult to parse.

If what is required, as I say, is additional courses in hairdressing, how can the local authority secure it without really getting its fingers inside the operation of a college? What actually is meant by "secure"? If I have to secure the places that are available, it means that I have to ensure that they are not available to anyone else. I need them for people in my local authority area. If I am going to commission 20 new places to study hairdressing at, say, New College in Huddersfield, I am not going to have people in Manchester coming in and taking those places, because that would mean that I had not secured them. To secure them must mean not only directing the college to provide them but also directing it not to admit people from other local authorities.

Lord Young of Norwood Green (Labour)

I must admit that I am now a trifle puzzled by the noble Lord. On the one hand he wants ultimate flexibility, but on the other he is now saying that he does not really want that in his commissioning process. With sub-regional groupings, that is exactly what we need to address. Of course there will have to be a bottom-up process. It will not be the councils not taking any notice of colleges' current requirements. In arriving at the 14-to-19 partnership strategic plan negotiated by providers and local authorities, they will have to take notice. That is how they will build up a picture of the requirements. If you are serious in saying that you want young people to have the ability to cross boundaries, you have to be able to meet that requirement. The only way in which you can do it is not in the silo of one local authority but by co-operating in these sub-regional groupings that the local authorities themselves have willingly entered into. They believe that they are necessary and will meet 90 per cent of the requirements.

I have some sympathy with the noble Lord, as he has enabled me to explain in detail the precise nature of the commissioning process and to satisfy not only him but the Committee generally that it will be a demand-led process which will reflect the demands of learners and have flexibility. I have offered to write and further explain that process, because I think that that would be helpful.

Lord Lucas (Conservative)

But none the less what the noble Lord is saying is that the local authorities will have the power to tell colleges what courses they should teach and when and to whom.

Lord Young of Norwood Green (Labour)

I am emphatically not saying that. I do not want to be misrepresented. I am not saying that that is how it will operate. In fact, I have taken great pains to say the complete opposite—that they will be working in partnership to try to assess the nature of demand, not dictating exactly, in the way that the noble Lord has unfortunately misrepresented. Rather than our continuing this rather circular argument, I hope that the noble Lord takes my offer to write and explain further at face value, as a genuine attempt to help.

Lord Lucas (Conservative)

Yes, I will. There are one or two other points that I want to come on to. If what I said is not true, how is a local education authority to live up to the wording of lines 8 and 9 on page 23, to,

"secure that enough suitable education and training is provided"?

That is the point of my amendment. The noble Lord really has not addressed my amendment at all in its detail. For example, if I am required to "secure" that the noble Lord has an 8 ounce steak for lunch tomorrow, I have to go out and buy it.

Lord Young of Norwood Green (Labour)

I will have one more go. "Secure" means reaching an agreement with the college on how much it can deliver on each course. If it cannot deliver for all demand, of course the local authority will need to look elsewhere. So it is a collaborative process, involving discussions with the colleges about the nature of the demand and the courses that they can deliver. That has to be part of the process.

Lord Lucas (Conservative)

Fine. If the local authority "agrees with", it is getting into the interstices of a college and telling it, "We are going to fund this sort of course, and that is what you will provide". Not only that but, in order to "secure" it, it must ensure that the capacity that it has generated is not then used by people outside its area. That is what I am getting at in my amendment. The Government are placing a duty on local education authorities that will require them to interfere deeply with how individual colleges are run. The noble Lord has not disabused me of that at all.

My Amendment 91E, to add the interests and views of the learners who are supposed to be provided for to subsection (3) of new Section 15ZA, has not been addressed at all. Nor has my Amendment 102B. I do not see how a local authority can, of its constitution, without something in statute, "have regard to" the interests of people outside its area. Just a duty to co-operate with other local authorities presumes that it, as part of its duty to its constituents, will have an interest in those pupils going outside its borders. This is not how local authorities have generally behaved in the past. For instance, in the transport provision made for students who wish to attend Greenhead College, co-operative arrangements on post-16 transport have been in place for some while. Do they extend to students who want to travel from Manchester to Greenhead? No. Local authorities have chosen not to co-operate in helping students to go outside their boundaries.

We had in London some long while ago the Greenwich judgment about students travelling between one borough and another in order to get their ordinary education. That caused an immense ruckus and there are still continuing attempts by London local authorities to restrict access to their schools to pupils who live within the boundaries of the borough. I suppose that one could justify not allowing students to travel on the basis that they should not be consuming all the energy and transport fuel required to do it.

It is not part of the pattern that local authorities want to provide or use facilities beyond their boundaries. It is not part of the pattern of education in this country that specialist provision is well used and celebrated by local education authorities. Many good specialist colleges find it extremely hard to come by students. The noble Lord is living in cloud-cuckoo-land if he thinks that the Stalinist-style co-operation that he is proposing will work in the best interests of students. However, I look forward to his magnum opus coming my way. I shall be able to read out large sections of it on Report. If no one else wants to intervene, I beg leave to withdraw the amendment.

Amendment 91A withdrawn.

Amendments 91B to 91E not moved.

Amendment 92

Moved by Baroness Sharp of Guildford

92: Clause 40, page 23, line 27, after "diversity" insert "and inclusion"

Baroness Sharp of Guildford (Liberal Democrat)

I shall speak also to Amendments 97, 99 and 100, which fall in the same grouping. Before I address them, perhaps I may say that I hope that the letter that the Minister is to send to the noble Lord, Lord Lucas, will be shared with us all, as I think that we would all be interested in seeing it.

The only point that I might have made on the previous grouping was that at present the LSC commissions places at colleges, as the noble Lord well knows. Essentially, it commissions places generally for those aged 16 to 19. It does not commission specific provision, although there is some negotiation with the LSC about that. If there is excess demand, essentially the local authority negotiates with the LSC about whether funding is available. As I see it, that is where the difficulty for local authorities lies. The LSC has a very large pot of money, whereas local authorities have a much more limited pot, which frequently has many other calls on it. That is where the difficulties would arise.

I shall now address the amendments. As the noble Lord, Lord Lucas, said, we have shifted our attention from issues such as apprenticeships and time off for training to the role of local authorities in the provision of nought to 19, cradle to college, education. Here, we are looking particularly at the provision of education for 16 to 19 year-olds. That is to go back to local authorities, which will now have a new duty. In particular, under Clause 40(1) it will be incumbent on them to meet the reasonable needs of learners in the area that they serve and, under subsection (3)(b), to have particular regard to any learning difficulties that individual learners may have. To some extent, we have already rehearsed the fact that the record of local authorities in this area is, to say the least, somewhat mixed. As a result, we have sought, through a succession of education Bills in this House, to make more explicit the precise duties of local authorities in this regard. These amendments are in that tradition. They pick up the whole question of what local authorities' duties are to those with learning difficulties and they try to probe further precisely what they should be.

Amendment 92 would ensure that local education authorities have due regard to their responsibility to promote inclusion. Clause 40(4) places a duty on local authorities to act with a view to increasing diversity in education and training, which, to my mind, in government-speak means increasing the choice of courses available to the individual. However, that is not the same as inclusion, which means more attention being paid to person-centred assessments and advice and guidance in the choice of courses. Amendment 92 suggests that we should have not only diversity but diversity and inclusion. To some extent, we have spelt that out in Amendment 99 in my name and that of the noble Lord, Lord Low of Dalston, which says that local authorities need to take account of,

"good provision of information ... transparency in how the available levels of support are determined ... integrated assessment ... participation of disabled children and their families in local services; and ... accessible feedback and complaints procedures".

That spells out in greater detail precisely what we mean by inclusion.

I have a specific question for the Minister that has been put by the disability lobby relating to the responsibilities on the part of the YPLA on the issue of inclusion. Will those with learning difficulties be able to participate in mainstream courses, as much as in discrete courses? The experience of many of those involved in the commissioning of the education of those with learning difficulties is that frequently there has been provision of discrete courses but not inclusion within some of the mainstream ones. Will the Minister clarify whether it is Parliament's intention that diversity of provision should include choice of mainstream courses for all those with learning difficulties who are being funded either by the YPLA or the SFA, for those with learning difficulties who are over 25, and that it is not just the provision of special courses, so that the concept of inclusion has its true meaning? They should be able to participate in mainstream courses and specialist support should be provided in those circumstances. Amendment 92 wants inclusion to be separate from diversity. The amendment is a probing one, and we want the Government to explain what they mean by diversity in this context and spell out in more detail what might be included.

Amendment 97 is again a probing amendment to clarify how the Government intend to audit LEA compliance with their duties towards young people with learning difficulties. A robust needs analysis must be carried out to ensure that provision is an integral part of the widely supported sufficiency duty in the recent Childcare Act. When a similar amendment was debated in the Commons, the Government argued that structures were already in place to ensure that local authorities could be held to account for the delivery of these new duties in the Bill. In particular, they argued that the outcomes-focused performance management systems now set up within the framework of the local area agreements, combined with assessment and inspection by Ofsted, should provide sufficient pressures towards compliance.

Coming from the county of Surrey, whose children's services were judged inadequate by Ofsted, but which until that external check had been very complacent about the quality of its own provision, I have to admit that it is extremely important that these audit procedures are acted upon and are not allowed to continue without action. Amendment 97 would make sure that any such Ofsted or audit procedures are heeded and that their recommendations are followed.

Amendment 100 picks up the issue of what is disproportionate. Clause 40(5) states:

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

The amendment adds the rider,

"particularly when it is required to make provision for those with learning difficulties or other disabilities".

The Government know that the Special Educational Consortium is very unhappy about subsections (4)(e) and (5). It feels that the duty to secure a sufficient supply of post-16 education is unhelpfully qualified by a requirement that LEAs should avoid provision that gives rise to disproportionate expenditure. The probing amendment was withdrawn when the Government indicated that Clause 45 specifically states that provision is not to be viewed as giving rise to disproportionate expenditure and that an individual can challenge an LEA if it does not meet that criterion.

The Special Educational Consortium feels that this is not a sufficient safeguard, and it should not be left to the individual to enforce the duty on the LEA. The SEC is seeking further clarification from the Minister as to why the Government believe that this qualification is necessary, particularly where there is a clear duty to secure suitable education and training that meets reasonable needs of people in their area. These four amendments seek to probe a little further and clarify precisely how the Government see the local educational authority provision meeting the needs of those with learning difficulties. I beg to move.

Lord Rix (Crossbench)

There appears to be a certain amount of cross-fertilisation between the amendments of the noble Baroness, Lady Sharp, and my Amendments 94 and 143, which I hope will arrive this evening but will probably arrive on Thursday. Amendment 94 would get rid of lines 36 to 41, which the noble Baroness has been addressing, and make further substitutions available to your Lordships. I hope that my amendments will receive approval. As an interim measure, I support the noble Baroness, Lady Sharp.

Lord de Mauley (Conservative)

The noble Baroness, Lady Sharp, raises some important points. We have already held extensive debates on the merits of the transfer of duties of education of 16 to 19 year-olds to local authorities, not least on the previous group of amendments. Noble Lords will be relieved to hear that I do not propose to rerun these debates now. However, the noble Baroness has raised some important related issues in this group. If these duties are to be transferred to local authorities, which already have strained budgets and capacities, we must ensure that certain safeguards are built into the structure. As the Committee will be aware, as I have said before, and as we will be discussing later, we on these Benches have serious misgivings about transferring these functions to local authorities.

Nevertheless, if the Bill as it stands is accepted, we would wish to support those who intend to ensure that safeguards are in place to protect those who might be most at risk from budgetary or staff constraints. Amendment 92 widens the scope of the local authority's obligations, asking that it should have regard not only to diversity, but to inclusion, with which we have some sympathy. Amendment 97 requires recommendations from its own audit process and from Ofsted to be taken into account and seems sensible. In an ideal world, we would hope that local authorities would regard this as an implicit and obvious function of their duties. Will the Minister confirm that he would expect that to happen? Does he have any concerns that it might not? Will he assure us that local authorities will see this issue as a priority in order to ensure that the highest standards of education are provided?

Amendment 99 also raises concern about the delegation of those powers and duties to local authorities. It demands that they must take into account provision of information, transparency, assessment, participation of disabled children and feedback and complaints procedures. Those all appear to be sensible to ensure that if local authorities cannot cope under the strain of those duties, it does not go unnoticed. We would all agree that it is of vital importance that if a lack of capacity in a local authority has the consequence that people are not receiving the education to which they are entitled, an open and transparent process would allow that to be brought to the attention of the appropriate authority. Will the Minister tell us whether, as the Bill stands, the appropriate authority to deal with an underperforming local authority would be the YPLA?

Amendment 100 seeks to ensure that those who have learning difficulties or other disabilities are not excluded from provision simply because it may give rise to increased expenditure. I hope that that will not be the case and look forward to the Minister's response.

Lord Addington (Liberal Democrat)

I will join the Committee debate for the first time. When I looked at the Bill and the type of briefing that came through, as my noble friend suggested, it was a step down memory lane. It seemed that a type of provision that we had almost taken as read in other education Bills was being ignored. It may well be that a series of protections about special educational needs and learning disabilities are entrenched in the Bill, but it is not obvious to those outside. The noble Lord, Lord Rix, is nodding his head in agreement. Many people feel that something has been missed, and that it is missing in the tone and presentation of the Bill. I would be happy if the Minister could give us a hint that the provision is in place because the idea hinted at in "disproportionate expenditure" is that something that is simply too expensive will be removed.

I would have thought that the idea of reasonableness encapsulated in the DDA would have covered that with the cross-fertilisation of legislation. We have spent years trying to make sure that legislation applies across, yet something in the Bill seems to contradict that. People are starting to get worried. I hope that the Minister will be able to dispel a few of the demons that the Government have summoned. Are they going to make sure that arbitrary blocks will not be placed in the way of the education of those who have a slightly different learning pattern? What level does "disproportionate expenditure" mean? I do not know. In the past, it has meant something new and difficult. The Minister looks slightly perplexed, but let me assure him that I have sat in this Chamber for more than 20 years and have talked to various Ministers of various colours for whom doing something new and difficult was shocking and dreadful.

Can the Minister give us an idea of where the Government's thinking is going in the round, what they expect not to happen and how flexible they are going to be in the introduction of new technology and other things? All these things have recently been challenged in the press. I always talk about dyslexia on these occasions. We were recently told by one or two people that it does not exist. On one occasion, it was by a member of the Minister's party—he looks surprised. It is true that he was flattened by members of his own party for that; the rest of us were queuing up to do it, but they got there first. Reassurance is required here. Can the Minister assure us that the existing safeguards and the structure that we expect are in place?

Baroness Howe of Idlicote (Crossbench)

I support these amendments. It is important that we consider them both as specifics and in the wider world in which they will be applicable. A number of us have tabled amendments. My name is attached to an amendment tabled by my noble friend Lord Ramsbotham, but we are clearly not going to reach it tonight, so we shall see whether it is relevant to raise it on a different occasion. The point about inclusion raised by the noble Baroness, Lady Sharp, is crucial. Does inclusion mean that those with special difficulties will be equipped with whatever is required for them to take part in the ordinary, normal procedures of the learning process in a particular course? Auditing what is achieved by these amendments is equally important.

The other point concerns what is disproportionate extra expenditure. That has been gone into in quite some detail. Nevertheless, it is an area where we will need more reassurance that different LEAs will not interpret this phrase in different ways.

There is a lot for the Minister to take on board. Perhaps he will not be able to answer all the queries tonight. I am pretty certain that many them will come back on Report, if not the day after tomorrow when we continue our trek.

Lord Young of Norwood Green (Labour)

I turn first to the opening remarks of the noble Baroness, Lady Sharp, on expenditure. We are not talking about a small sum of money. The national figure for participation for 16 to 19 year-olds for the academic year 2009-10 is £6.8 billion, according to the Secretary of State for the DCSF. The London region has more than £1 billion. These are not small sums, and they are part of the September guarantee.

I will return to the subject of inclusion, which lies at the heart of what we are trying to do. On the one hand, people call for inclusion, which is quite right. On the other, they call for specialist provision. What we want is choice. We have to try to meet those needs. Inclusion in the mainstream will suit some young people and will be what some parents want, but not what all parents want. Some parents are just as focused on specialist provision. We have tried to meet a wide range of needs. I reassure the noble Baroness that local authorities will need to act in a way that encourages young people with special needs to exercise choice in the same way as other young people. Specific provision for choice is made in Clause 40(4)(b).

I reassure the noble Lord, Lord Rix, that we will come to his superb amendments—superb just in their structure, of course—in a later group, and will address them then. The noble Lord, Lord De Mauley, asked about local authorities that cannot cope. It will be the YPLA that assists them.

I will pick up on a point made by the noble Lord, Lord Addington, and remind him that the Bill says clearly, in Clause 40(5):

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

That should not rule out special provision. I trust that we have come a long way since the outdated attitudes to dyslexia. We have recently announced a considerable number of specialist assistants for dyslexia. I will come back to some of his points if I need to.

I understand the concerns that the Special Educational Consortium and others have about Clause 15ZA(4)(e), which requires local authorities to make best use of their resources and avoid provision that gives rise to disproportionate expenditure. We will debate that in more detail in a future group. For now, I will concentrate on Amendment 100. It is an important principle that public bodies must make best use of their resources. Local authorities must commission provision in a way that provides value for money, as the LSC is currently required to do. Section 2 of the Learning and Skills Act 2000 contains a similar provision.

I reassure the Committee that the clause is not about excluding young people—particularly the most vulnerable—from access. The duty of local authorities to secure education and training for all young people, including those with learning difficulties and disabilities, is set out clearly in new Clause 15ZA. For the avoidance of doubt, subsection (5) makes it clear that provision is not to be considered disproportionate just because it is more expensive than comparable provision. Amendment 100 would emphasise that this safeguard should apply particularly where it concerns provision for learners with learning difficulties and disabilities. However, this safeguard is intended to apply not just to young people with learning difficulties and disabilities, but to all young people, such as teenage mothers or young people with behavioural problems who may require additional support. For that reason, we would prefer not to single out one group, however important, in the Bill.

I agree with the sentiment behind Amendment 97, which would require local authorities when commissioning provision under Section 15ZA of the 1996 Act, to take account of recommendations which arise from their internal audit processes and from any assessment and inspection by Ofsted. But these are essentially operational matters that relate to how local authorities fulfil the four tests in subsection (3) of new Section 15ZA. I am not persuaded that they should feature in the Bill.

However, it may be helpful to set out how, in practice, we will ensure that local authorities take account of these important issues. All local authorities will have to abide by statutory guidance issued by the YPLA through the national commissioning framework. On the quality test, local authorities will be expected in making their commissioning decisions to take account of a range of data on the quality of providers, including performance indicators within the Framework for Excellence, Ofsted inspection findings and providers' own self assessments. They should use this information to set out clear expectations of the standards of performance expected, and support and challenge good schools and colleges to become excellent, as well as provide a focus on underperformance. Local authorities' own performance of their duty to ensure best value in commissioning will also be informed by internal audit reports, as well as best practice reviews by the Audit Commission.

I understand the intention behind Amendment 92, whichwould require local authorities when securing provision under Section 15ZA, to act with a view to encouraginginclusion, as well as the diversity of provision.Requiring local authorities to promote diversity of provision does not mean that we are turning our back on our long and successful policy of ensuring that mainstream schools and colleges are inclusive and accessible to young people with learning difficulties and disabilities. We want to ensure that learner choice is respected and that appropriate provision is made available to all young people. It is the learner who should be at the centre of the system and their needs that should drive commissioning decisions, as I endeavoured to make clear in the previous debate. There are many examples of mainstream further education colleges making arrangements to ensure that their mainstream courses are accessible for learners with learning difficulties.

However, as we have discussed before, there will be some young people for whom this type of provision is not appropriate and who will require specialist provision, perhaps delivered by a specialist college. Later, in relation to Clause 45, we will debate amendments also tabled by the noble Baroness, Lady Sharp, which I believe stem from a concern that this specialist provision should be maintained.

It is important that we strike a balance here and I am reluctant to accept the addition suggested in Amendment 92 as it risks sending the message to local authorities that inclusion is always the correct approach and that specialist provision should not be made available when appropriate. However, I hope what I have said will reassure the Chamber that we are committed to provision that is high quality and accessible to all learners, that there is much good work being undertaken in this area and that, by putting the learners' needs and choices at the centre, Clause 40 as currently drafted will support this.

Amendment 99 deals with a number of important matters concerning the local authority's role, particularly in respect of learners with learning difficulties and disabilities. While in my view we already have the legislative bases covered, I certainly agree with the sentiment behind the amendments that we must ensure that the duties imposed through legislation are delivered on the ground.

It may be helpful if I set out the sort of service that young people with learning difficulties and disabilities should expect to receive and I will deal with each of the five elements of the amendment in turn. On information, young people with learning difficulties and disabilities will be able to go to their local Connexions service, or have it come to their school, for advice and guidance between the ages of 13 and 19, or up to the age of 25 if they have an assessment of learning difficulties. In line with the quality standards, they can expect to receive additional guidance and support, including a transition plan from year 9 of school and a Section 139A assessment at year 11, or later if needed, to ensure that they are able to progress and achieve in the route of learning they choose.

On transparency and integration of the assessment process, as a result of the Bill, young people with learning difficulties or disabilities can expect that the same local authorities responsible for assessing their needs will also be responsible for ensuring that their needs are met up to the age of 16, as they are now, and beyond. That will ensure greater continuity of support.

On child and parental involvement, young people and their parents can expect to have a key role in the development of their transition plan and to review it annually with their Connexions adviser or other lead professional. The learning difficulty assessment under Section 139A will build on this process. The draft statutory guidance, which is currently out for consultation, will mean that parents and carers can expect to have an important role to play in the assessment process. That is surely something that we all want. Every effort should be made to ensure that the young person understands the purpose and process for carrying out the assessment. If implemented, the guidance will mean that the assessment report should identify the provision, the provider and the programme of learning that young people need to progress. It should also include the support that they need to access learning provision. For example, if it is felt that the most appropriate placement is with a mainstream college, specialist provider or an apprenticeship, this should be stated in the report. The outcomes of all these assessments will feed into local, regional and national planning processes. The national commissioning framework will require local authorities to take account of the outcome of young people's assessment reports.

On complaints, where young people or their parents feel that an assessment has not been carried out appropriately, or where it is felt that the provision made available does not meet the requirements set out in the assessment report, they may already complain to their local authority and then to the Local Government Ombudsman. Rather than constructing a new bureaucratic structure to deal with complaints, we think that it is better to use these established mechanisms. We will ensure that young people and their parents are aware of their rights to complain and of where they can access advice and support in exercising that right.

I will give as an example of inclusion Kensington and Chelsea College. It has made adjustments to the standard curriculum to deliver a photography course that is accessible to deaf learners. This has proved particularly successful and is being accessed by a number of learners. The college also holds information, advice and guidance sessions aimed particularly at young people with learning difficulties and disabilities. The sessions provide access to interpreters and support workers and enable learners to consider the full range of courses available at the college and to talk to teachers about what they involve. The college sees this type of consultation and conversation as key, as it enables young people, alongside college staff, to think about their own limitations and how they get around them with support, so that they can get the most out of their time in college.

In conclusion, at local authority level, the duty in Clause 40 will also be part of the existing local authority performance management system. In addition, the YPLA holds the final agreement to fund local commissioning plans. Plans endorsed by the regional planning groups will be considered by the YPLA to ensure, at a national level and across each of the regions, that the best balance of provision has been achieved to meet young people's needs. I hope that, on the basis of these assurances, noble Lords will be persuaded not to press their amendments.

Baroness Sharp of Guildford (Liberal Democrat)

To a degree, I am reassured by what the Minister has said and I thank him very much for the full answer that he has given on these various amendments. His point—that the learner needs to be at the centre of the system—is the key issue here. I questioned him about participation in mainstream activities and he quite rightly pointed out that the key issue is choice on the part of the learner. There are some, however, who, rather than being sent off to special classes because they have learning difficulties, actually want to be included. We all know that, in that sense, the concept of inclusion is very important, both in terms of building one's own self-confidence and in terms of one's feeling of one's own stature within society. So this is important.

I am grateful to the Minister for spelling out the ways in which he sees these different services panning out. In terms of the year 9 and transition assessments, the record of local authorities on those with learning difficulties is not a good one and we have yet to see how far this system, which under Clause 40 extends the old system of assessments through to young people from 16 to 19, will go. We live in hope that the new assessments will translate into something meaningful for these young people. However, as I say, I am grateful to the Minister for his full reply and I beg leave to withdraw the amendment.

Amendment 92 withdrawn.

House resumed.