Apprenticeships, Skills, Children and Learning Bill

House of Lords, 19 October 2009.

Committee (9th Day)

Baroness Walmsley (Liberal Democrat)

My Lords, I shall speak also to Amendments 265 to 269, which are grouped with Amendment 244.

The Bill does not detail the specifics of Ofqual's reporting structure and performance measurement. If schools, colleges and awarding bodies knew of Ofqual's priorities each year, they could plan their qualifications accordingly. This group of amendments would provide for that and add further checks and balances on Ofqual's activities, providing for greater scrutiny and accountability of its performance—a matter which your Lordships on all sides of the House have said is desirable.

Amendment 244 to Clause 126, which is about general duties, requires Ofqual to,

"establish specific and measurable success criteria for each of its objectives".

The next set of amendments is about Ofqual's annual report. Amendment 265 requires the annual report to state how Ofqual intends to fulfil the criteria over the next 12 months.

Amendment 266 relates to Clause 138, if it were to remain in the Bill. If the Secretary of State had used the rather controversial power to make a determination, the amendment would require Ofqual to report that in its annual report, so that the Secretary of State's actions are open and accountable for all to see. Amendment 267 requires similar reporting in the annual report if the fee-capping power has been used. Amendment 268 requires information about consultation that Ofqual has undertaken during the previous year. Amendment 268A requires Ofqual to take into consideration significant reports on its performance. We would expect Ofqual to state how it was to improve, if that were necessary—if there were some sort of criticism in the report. Amendment 269 asks the organisation to consult the public on its plans and publish and lay before Parliament an annual plan with its main objectives and priorities for the coming year.

All that may seem very prescriptive, but given that we on these Benches want to remove Clause 138, and given that the Government are resisting that rather strongly, we feel that it is important to lay out in the amendments how Parliament expects Ofqual to behave in relation to transparency and accountability. That would give Parliament the opportunity to question what is happening if necessary; of course, it cannot do that unless it has the information. This group of amendments would give it that information. None of the things that we are asking for is something that Ofqual would not want to do anyway, but it is important that we lay such things out clearly when we are setting up this system for the examination regulator. I beg to move.

Lord Lucas (Conservative)

I have tabled Amendment 262 in this group, which asks that:

"Ofqual shall publish on the internet a summary of all judgements and determinations that it makes, and of the reasons for them".

It is very important that Ofqual should seek to establish in public a detailed series of precedents and explanations of the way that it is working: first, because it should be transparent; secondly, because such transparency is vital in creating public confidence in the body; and, thirdly, because only by seeing exactly how Ofqual is reaching its decisions and on what basis it is seeking to judge qualifications will the awarding bodies have the confidence that they need to be able to innovate and bring forward new and interesting variations on their existing qualifications.

Baroness Verma (Conservative)

My Lords, I shall be brief. We support the amendment and would like to see Ofqual fulfil its functions in a transparent and accountable manner. In order to restore public faith in the examination system, people must be able to see clearly the functions and actions of the body in charge of regulating examination standards. Furthermore, it is right that Ofqual should be held to account for any failure or perceived failure in its duties. Enhanced transparency will ensure that Ofqual is held to high standards, which should make sure that our examination system is, once again, a vigorous and robust structure that displays the hard work and dedication of the students to the best possible advantage. I hope that the Minister will give a favourable reply to these amendments.

Baroness Morgan of Drefelin (Labour)

My Lords, I am delighted to respond to this short debate. I was interested to hear what the noble Baroness, Lady Walmsley, had to say in introducing this debate. At times, it was difficult to hear her because when noble Lords leave the Chamber after Questions it can be very noisy. I support what the noble Baronesses, Lady Walmsley and Lady Verma, said about the importance of Ofqual being held to account and the key role that Parliament will play. Ofqual will want to fulfil the aspirations set out in the noble Baroness's amendments. We all accept the principle that Ofqual should be independent of Ministers and accountable to Parliament. The Bill delivers that. Its provisions are modelled on those for Ofsted. It is tempting for noble Lords on all sides of the House to think of things that seem important now and write into the legislation that Ofqual should report on them. I appreciate that that is not the kind of game that we are in, but I appreciate the thought that has gone into these amendments. We should resist that temptation to create a tick-box mentality that risks Ofqual having to report on the detail of A, B and C, even if, at a later date, the X, Y and Z are more important, although I think the noble Baroness is driving at a higher principle than that. We should instead trust that the accountability arrangements will truly hold Ofqual to account for those things that are really important at the time.

Amendments 244 and 265, tabled by the noble Baronesses, Lady Walmsley and Lady Sharp, relate to success measures and my answer to them is similar. We agree that Ofqual should establish specific success measures and report against them. We would expect Parliament, probably through the Select Committees, to insist on nothing less. Indeed, the chair of interim Ofqual, Kathleen Tattersall, stated in a letter to the Public Bill Committee in another place that she intends that Ofqual will do that.

Amendments 266, 267 and 268A refer to how determinations under Clause 138 will need to be published. I appreciate what the noble Baroness is trying to say. If Ofqual were foolish enough not to report on them, Parliament would have something to say. The same might be said about Amendment 268A, which relates to reporting to Parliament about Ofqual's functions. On Amendment 267, any further guidance given by the Secretary of State on fee capping or on anything else will be published, allowing Parliament to look to Ofqual to give its view.

Briefly, on consulting on the plans, Amendment 269 risks being a bit prescriptive and going into too much detail about how Ofqual should go about its business. It is Parliament's job to hold Ofqual to account on how effectively it plans but, again, I appreciate that Parliament will want to know how it goes about its business, and the communication between Ofqual and Parliament will be key. If the Bill puts into place lots of hoops for Ofqual to jump through, Ofqual will spend its time jumping through them and not necessarily planning, but I appreciate the importance of clear communication in planning.

On the amendment in the name of the noble Lord, Lord Lucas, I caution that there is a difference between transparency and a white noise of information. There is a difficult balance to be struck, and it is important that public bodies get it absolutely right. If Ofqual spends its time publishing literally vast amounts of information, what is important may get lost in a deluge; so it may be possible to fulfil a publication requirement but not necessarily to communicate, and the effect might be to improve neither understanding nor confidence.

The noble Baroness, Lady O'Neill, argued this point rather eloquently in her Reith lectures a few years ago, in which I was very interested. She argued that transparency can create its own problems if it results in,

"a flood of unsorted information and misinformation that provides little but confusion",

although I appreciate that noble Lords do not expect something like that to happen. A key founding principle of these reforms is transparent decision-making rather than transparent information. We must be careful not to confuse the two, as these amendments would.

In the light of what I have said, and bearing in mind the communication that we have already received from the interim Ofqual, I hope noble Lords will consider not pressing their amendments.

Baroness Walmsley (Liberal Democrat)

My Lords, I am most grateful to the Minister for her reply. She is right that I do not really expect her to accept these amendments, which are probing. I am aware, of course, that the chair of Ofqual will be listening and taking note of our debates in this Committee about her powers and duties. My intention was to highlight the sorts of things that we expect to hear in reports from Ofqual and the sort of accountability and transparency that Parliament expects.

The Minister asks that we trust Parliament. To a very great extent, I do, but it has to be said that, today, Ministers have struck a blow against the powers of Parliament. The very first time that the Select Committee has tried to use its power to have a confirmation hearing about a public appointment, the Secretary of State has totally ignored it; so the Minister cannot be surprised when we seek to put into legislation what we might otherwise have expected Parliament to be able to deal with.

However, unless the Minister wishes to make another comment, I beg leave to withdraw the amendment.

Amendment 244 withdrawn.

Amendment 244A had been withdrawn from the Marshalled List.

Clause 126 agreed.

Clauses 127 and 128 agreed.

Clause 129 : Recognition

Amendment 245 not moved.

Clause 129 agreed.

Clause 130 : Criteria for recognition

Amendment 246 not moved.

Clause 130 agreed.

Clause 131 : General conditions of recognition

Amendment 247 not moved.

Clause 131 agreed.

Clause 132 : Other conditions of recognition

Amendments 248 to 250 not moved.

Clause 132 agreed.

Clause 133 : Fee capping conditions: supplementary

Amendment 251 not moved.

Clause 133 agreed.

Amendment 251A not moved.

Clause 134 agreed.

Clause 135 : Qualifications subject to the accreditation requirement

Debate on whether Clause 135 should stand part of the Bill.

Lord Lucas (Conservative)

I should be grateful for a brief illustration of how the Government expect Ofqual to use this clause. In practice, what sort of qualifications will become victim of this clause and what sort will avoid it?

Baroness Morgan of Drefelin (Labour)

I shall do my best to give the noble Lord some comfort and I will await inspiration, should that come too. Ofqual will be a risk-based regulator, which will intervene only where it judges it necessary to do so to achieve its objectives. If Ofqual is confident that a recognised awarding body can be trusted to develop qualifications without them being checked individually, it can regulate on that basis. Therefore, qualifications run by those awarding bodies would not need to be individually checked by Ofqual. It will then rely on its ongoing monitoring to ensure that standards are up to scratch, which is a major change, of which I believe that the noble Lord is aware, from the current regime under which every qualification must be checked individually. It will go from an individual qualification check to an organisational check, which is why we are saying that it will be more light touch.

However, Ofqual still has the discretion to insist on accreditation for a qualification if it decides that that is necessary. If an accreditation requirement is imposed, it means that, for example, a new qualification has to be checked or accredited before it can be awarded. This is a crucial power for Ofqual to impose extra quality control when this is needed to protect standards. For example, Ofqual could require that all A-levels are subject to the accreditation requirement, given the detailed requirements that A-levels have to meet. It could also require that all IT qualifications from "Fictional Award Body Limited" are subject to the accreditation requirement—perhaps because it had picked up concerns about the body's IT qualifications or just because it was a new market.

This clause provides for Ofqual to decide when a qualification needs to be accredited. It also builds in consultation requirements, procedures that Ofqual must follow, before it can insist on accreditation. It is a necessary part of a necessary power. I hope that with that explanation, the noble Lord will be satisfied.

Lord Lucas (Conservative)

I am grateful for that explanation. I am sorry if the noble Baroness did not know that this was coming. I see that she is nodding to indicate that she did know. In other words, she expects the power to be used rarely and cannot think of any qualifications to which it will apply at the moment. With that I am content.

Clause 135 agreed.

Clause 136 : Accreditation

Amendment 252 not moved.

Clause 136 agreed.

Clause 137 : Criteria for accreditation

Amendments 253 and 254 not moved.

Clause 137 agreed.

Clause 138 : Power of Secretary of State to determine minimum requirements

Amendments 255 to 257 not moved.

Clause 138 agreed.

Clause 139 : Assignment of number of hours of guided learning

Debate on whether Clause 139 should stand part of the Bill.

Lord Lucas (Conservative)

I have a couple of brief questions on this clause. First, how are guided learning hours to be policed? It is all very well to have this number sitting there, but as the noble Baroness will remember, one successful state school has been pioneering GCSEs in a term and successfully getting the qualification based on apparently a much reduced number of learning hours. Is the number of guided learning hours to be enforced or applied in schools, and if not, what is the point of them? Secondly, what is subsection (12) all about?

Baroness Morgan of Drefelin (Labour)

I shall respond briefly to the noble Lord's question about guided learning hours. I would expect schools, colleges and providers of courses of study leading to a qualification to ensure that the guided study hours are fulfilled. On the appropriate number of hours to be attached to a given qualification, I see the decision on that as very much part of the role of Ofqual. Indeed, I expect that to be a key contribution for it to make.

Subsection (12) means that Ofqual does not need to apply guided learning hours to the award of credits simply because credits are combined to make full qualifications, and for these purposes it is full qualifications that we are interested in. I assume that the "we" refers to Ofqual. It may be helpful if I write to the noble Lord further on this if I have not given him the clarification he is looking for.

Lord Lucas (Conservative)

I thank the Minister. A letter would be very helpful.

Clause 139 agreed.

Clause 140 : Criteria for assignment of number of hours of guided learning

Amendment 258 not moved.

Clause 140 agreed.

Clauses 141 and 142 agreed.

Clause 143 : Review of activities of recognised bodies

Amendment 258A withdrawn.

Amendment 259 not moved.

Clause 143 agreed.

Clause 144 agreed.

Clause 145 : Power to give directions

Amendment 260 not moved.

Clause 145 agreed.

Clause 146 : Power to withdraw recognition

Debate on whether Clause 146 should stand part of the Bill.

Lord Lucas (Conservative)

I want to ask a question about the powers of the appeal tribunal that is to be set up under subsection (8) covering the arrangements for a review. Is this to be an internal review or something that will have a degree of independence about it?

Baroness Morgan of Drefelin (Labour)

I thank the noble Lord for that question, which gives me an opportunity to put my remarks on the record. The noble Lord asked particularly about subsection (8). It requires Ofqual to put in place review arrangements of any decision to withdraw recognition, which is obviously a key part of the regulator's role. More detail about those arrangements is set out in subsection (9).

Like any regulator, Ofqual needs to have a range of sanctions and powers to allow it to step in and nip problems in the bud. We hope that Ofqual will not have to use these powers very often but it is crucial that they are there if needed. As I am sure noble Lords will agree, Ofqual must not be a toothless tiger.

The Bill provides a number of sanctioning powers to enable Ofqual to act in a proportionate way to safeguard standards and protect the learner. The ultimate sanction must be available to Ofqual, even though it would hope never or rarely to use it: that power is to withdraw from a body recognition to award some or all qualifications so that those qualifications are no longer regulated.

Clause 146 makes it explicit that Ofqual has the power to make such a sanction and, at the same time, ensures that it can be used only in limited circumstances and that there are effective checks on that power so that it can be used only when circumstances demand it. What are those limited circumstances? The power can be used only where the body has breached a condition of recognition and that breach is prejudicial. What are the safeguards? The clause sets out the steps that Ofqual must take before withdrawing recognition, including giving notice of its intention to do so, setting out the reasons for taking such action and taking account of any representations from the awarding body; that must be key. Ofqual must make arrangements for review of withdrawal decisions where requested to do so by the awarding body. My note does not say whether that is an external arrangement, but the fact that Ofqual must make the arrangements suggests that they are in Ofqual's gift.

Finally, if qualifications are coming off the market, we need to ensure that existing learners are protected, as noble Lords would expect. I am advised that the appeal could be either external or internal, which suggests to me that the noble Lord would like to have a letter clarifying this with perhaps more certainty.

Lord Lucas (Conservative)

My Lords, I am grateful for that explanation. Yes, I would like a letter. Certainly if it is an entirely internal matter, I would wish, perhaps, to bring it back on Report.

Clause 146 agreed.

Clauses 147 to 150 agreed.

House resumed.

Committee (9th Day) (Continued)

Lord Lucas (Conservative)

My Lords, one of the crucial functions of the Government and their agencies in respect of examinations is to assign a point score to each grade in each examination because that is the mechanism by which examinations are made comparable from the point of view of the general public judging the performance of schools and—although it is not the same authority setting the point score—to some extent for universities judging whether a student has done well enough to enter a course. However, the function of the amendment is to draw attention to the performance tables in all their various forms. Following examinations being reported under different headings, which became very diverse and confusing, whereby you had different columns for IB and vocational exams and a third column for A-level examinations, we now have a consolidated point score. That has made it possible for the performance of schools which teach a broader curriculum to be recorded in a common currency of points, particularly those schools that are introducing GNVQs and, in a constructive way, many city schools that provide a broad range of BTECs and other examinations at GCSE—and to a much larger extent at A-level.

If that is to be believable, it is important that the point setting be carried out independently of any organisation with anything to gain from setting the points to their advantage. The majority of the distortions have been caused by government, although I do not blame this Government in particular. Governments tend to introduce new qualifications and want them to be taken up. One of the ways in which they have incentivised schools to take them up is by seeing to it that they are awarded a substantially excessive number of points. At the moment some GNVQs, which are good examinations, are rated in the league tables as being equivalent to four GCSEs, when clearly in terms of the work required to complete them they are worth substantially less. This distorts the whole pattern of education.

Schools plunge into these examinations not so much because they are what are required by their pupils, but because it is the way in which the schools can be rated highly in the league tables. That is not the motivation which should lie behind a school's decision to change in this way. These examinations may well be right for their pupils, but the pupils' interests should come first, rather than how the school appears in the league tables. For the two to be matched up it is enormously important that the point setting should be independent of government and, obviously, of awarding bodies or anyone else with anything to gain from setting the points one way or the other.

I am keen that this function be transferred to Ofqual and I cannot see any reason why it should remain with government. I beg to move.

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, we on these Benches have some sympathy with the amendment, but we are worried that it would introduce a degree of inflexibility to this area and not fulfil the objective of clear transparency that the noble Lord is seeking. We are not convinced that this is necessarily the right formula.

Baroness Howe of Idlicote (Crossbench)

Although I have only just returned to the Chamber, I heard what was being said. Does the noble Lord, Lord Lucas, think that assigning points to particular pieces of information is an adequate way of examining the full range of academic skills and abilities that learners need to acquire? I should be very grateful to hear from him whether I am right to ask that question.

Lord Lucas (Conservative)

My Lords, there is no such thing as perfection in this, but the Government certainly recognise in their proposals to change the performance tables that, at the end of the day, most parents want some form of simplicity. Yes, there are a thousand different ways of measuring a school; I would not find it difficult to produce 40 or 50 relevant measures even for a primary school. If you have skill and experience, you should be looking at that and, anyway, you should be visiting a school to see what it feels like. However, while there is a need for a measure of how well a school is doing academically—I agree that you may need to split this assessment into different bits—how many should it be split into?

At primary level we have English, science and maths. Can you really lump them all together into one figure, or should we see them separately? Should we just publish the individual subjects that are taken at A-level and not try to lump them together because how can one add physics to drama? The whole process within the breadth of A-level or GCSE of allocating the same grades to totally different subjects is one which, in essence, is a compromise but it is meant to mean something; it is meant to indicate a level of difficulty, a level of achievement; and it is putting things on a common scale because they are easier to understand that way. At the end of the day, even if people want to see the complexity, they also want the simplicity. They want the overall Ofsted judgment on a school as well as the 40 or 50 different criteria by which Ofsted makes its judgment. To get down to one measure, you need a way of translating a BTEC into a GCSE. That is what the point system is for. I am not saying that in any way it is perfection but that it is a useful measure for parents who have to make decisions about schools.

Baroness Morgan of Drefelin (Labour)

I am delighted to respond to this short debate. I believe that we should consider this amendment further, consider how to take forward the aspirations of the noble Lord, Lord Lucas, and return with something on Report. Having seen some amazing physics teachers in action, I can well imagine how one could add drama to physics but I would be interested to know how one could do it the other way around—maybe a lighting-TECH or something like that.

The values put on qualifications in performance measures for schools should reflect both their challenge and their size and how much time it typically takes to study for them. Just as with qualifications standards, I do not believe that Ministers would want to interfere in setting these values, but while there is a suspicion that they might do so now or in the future, we risk undermining the credibility of the school accountability system, as the noble Lord, Lord Lucas, has explained so eloquently.

So, just as we need independent judgments on standards, in matters of school accountability, we also need independent judgments on how the size of one qualification stacks up against another. We believe passionately in the role of Ofqual as a fully independent, expert regulator of qualifications and as part of that, in the area of school performance measurement, we need Ofqual to be involved in checking and providing assurance that we have sound, objective judgments about the comparability of qualifications.

We are therefore working with interim Ofqual and the QCDA to define such a role for Ofqual in relation to the Government's achievement and attainment targets and, in future, the school report card. Perhaps I need to understand further the concerns of the noble Baroness, Lady Sharp, about inflexibility. I should be very happy to pursue that discussion before Report. To allow Ofqual to do full justice to this role, we expect that we will need to amend the Bill. I will look at this further and come back to it on Report.

Lord Lucas (Conservative)

I am immensely grateful for that reply and I look forward to Report, as I was anyway. I beg leave to withdraw the amendment.

Amendment 261 withdrawn.

Amendment 262 not moved.

Amendment 263

Moved by Lord Lucas

263: After Clause 150, insert the following new Clause—

"Joint Advisory Committee for Qualifications

(1) Ofqual shall be responsible for the day to day running of the Joint Advisory Committee for Qualifications ("JACQA").

(2) The Secretary of State may direct JACQA not to fund particular qualifications that have been approved by Ofqual, or may specify conditions which must be met before such funding is granted; and the Secretary of State shall publish his reasons for any such instructions."

Lord Lucas (Conservative)

I do not expect the Government to accept this amendment as I do not think it has a place in the Bill. However, it has the virtue of bringing into the light of legislative day this strange committee called JACQA, which exists in order to enable the Secretary of State to decide whether he will fund particular qualifications. I want to discuss it in relation to the next group of amendments because of the power which that gives to the Secretary of State—quite rightly as he is the keeper of the purse—over the whole business of which qualifications shall be taught in English state schools. As a result of the economics of the whole process, he has a strong voice in what is in those qualifications. If the Secretary of State does not like a particular qualification, he can, as he did recently, say, "No, we're not going to fund this". Even though the qualification has been passed by Ofqual and is in every other way eligible, he can say, "No, we don't want to give money to that".

That is fair enough: it is the Secretary of State's job and it is what the Secretary of State is for. It seems to me an enormously important consideration when we come to Clause 138, because it gives the Secretary of State all the control he can possibly need over the content of qualifications and how they are delivered. It gives him no specific powers, but it gives him the ultimate veto, which effectively will give him all the control that a Secretary of State could ever have, need or want. I beg to move.

Baroness Walmsley (Liberal Democrat)

I shall speak to Amendment 274, which is grouped with this amendment. We take the opposite view. In the Bill, we are setting up a system whereby the Government will decide their educational objectives; the QCDA will research and develop the curriculum; Ofqual will recognise the awarding bodies and their qualifications; and the schools will be all set to teach them. The children will then sit the exam and the awarding bodies will mark and grade them.

However, what happens if the Government decide not to fund some of the qualifications that have gone through that fairly rigorous process? It seems to us only right that when a qualification has jumped through all the hoops laid out for it and a young person wants to take that qualification, it should be funded by the department, particularly in the light of the involvement in the system of the QCDA. That is what our amendment seeks to ensure.

Baroness Verma (Conservative)

Before we get into deep discussion about the QCDA, it seems fitting to begin with a debate about the damage caused by the restrictive nature of qualifications in this country. We have tabled Amendments 273A and 273B to draw attention to what we consider to be the misguided policy of the Government.

Our Amendment 273A calls for a review of the provision of the international baccalaureate examination. This examination has upheld very high standards of qualification and it provides a rigorous and effective assessment that has held standards at a consistently high level. Our Amendment 273B calls for a review of the provision of IGCSE and Cambridge Pre-U examinations in the state sector. These examinations are increasingly being offered by independent schools rather than the traditional state-run examinations.

We have tabled these amendments not just to call attention to the success of these examinations, and certainly not to rerun debates regarding the importance of upholding standards in schools and examinations. It is true that these exams achieve all those things, but we draw attention to them in order to raise two main points. First, we believe that increased choice in examination qualifications will help to drive up standards in schools. The schools which offer these diverse exam choices know that their parents have an option about where they send their children. If the examinations offered are not up to scratch, parents can just take their children elsewhere. In line with the workings of the market, this will have a knock-on effect of ensuring that these examinations will need to uphold their standards in order to maintain their reputation and increase the numbers who select that particular exam. In the light of that virtuous spiral, encouraged by increased choice of examination, can the Minister account for the fact that despite promises to the contrary the funding for IB provision in the state sector has been removed?

Secondly, there is a widening gap in our society which is becoming more marked and one that we must attempt to bridge. It is the gap between those who can afford to go to independent schools and so are given the opportunity to take qualifications, and those who remain in the state sector and are given no option at all.

I hope that the Minister will acknowledge that disparity and will be able to update the House on the Government's intentions. We believe that it is utterly wrong that those with money should be able to go to schools where a more robust examination system is followed than those without. With that in mind, can the Minister account for the Government's decision not to fund the international baccalaureate examination? Can she also inform us of the status of the funding of the IGCSE? At the moment, without funding, the Government are effectively denying access to that exam for those in the state sector.

I am interested in the amendment tabled by my noble friend Lord Lucas, Amendment 263. We agree with the objectives behind the amendment, and I am very glad that he has raised the issue. Nevertheless, I feel that I must reserve some judgment purely because it seems rather inefficient to use one quango to administer another. One might say that if JACQA does not need to be independent, it may be sensible to abolish it altogether to save costs.

Similarly, the issues raised by Amendment 274 are useful for the debate. The question is: if the advice of JACQA does not have a bearing on whether qualifications are funded, does that not imply that it should be abolished? It would seem odd to maintain a quango that operates with all the costs that that entails but without any real function or purpose. I will listen very carefully to the Minister.

Baroness Perry of Southwark (Conservative)

My Lords, I very much support Amendments 273A and 273B. At the moment, we have something of an examinations apartheid between state and independent schools, which seems to me quite wrong. Independent schools are now experimenting with the IGCSE and with the Pre-U and, so far, the results seem very promising. They are enjoyed by the young people, the young people are challenged by them and the brighter children certainly seem to thrive better with those examinations than with those on offer in the state sector. Of course it was right in the early days to restrict the spread of new examinations, but now that they are much better established in the independent sector it would make sense for the Government to extend them in the state sector as well.

Baroness Morgan of Drefelin (Labour)

My Lords, we are having a very interesting debate about the committee, which the noble Lord, Lord Lucas, described as a secretive and shadowy body. I will be delighted to shine some light on its activities through my remarks.

The noble Baroness, Lady Verma, made some assertions about the international baccalaureate, suggesting that funding for it has been removed. I can reassure her that that is not the case: funding for the international baccalaureate in state schools has not been removed. I turn to her amendments. Of course people should be able to choose from a range of high-quality qualifications, as she suggests, to help them to achieve their potential and to recognise what they have learnt. Of course the qualifications offer should be kept under review, as it is. Of course noble Lords will be interested in the Pre-U, but the Pre-U and the baccalaureate are already available in the state sector. They are regulated by interim Ofqual, so we can be sure that those qualifications will be of high quality.

The noble Baroness, Lady Perry, was also concerned about the IGCSE but, as I have said in this place once before, the IGCSE has not yet been submitted to interim Ofqual. It is not accredited and its processes for maintaining standards are not monitored. That is not to say that it will not be in future, but it would be self-defeating for Parliament to set up an independent regulator and then, in the same Bill, ask the Secretary of State to review whether maintained schools should be able to use qualifications that have not been submitted to the regulator for accreditation. We must have a system and stick by it.

Taking a step back from that, we know that the current learning offer for young people is confusing. I have taken that point from many discussions in this House. Too many qualifications fail to support the progression from learning to skilled employment and higher education that we all want to see. That is why we are looking to streamline the qualifications offer in the maintained sector into four main routes: GCSEs and A-levels, diplomas, apprenticeships and foundation learning. We believe that qualifications outside those routes should be available where they meet a need that cannot be met within the four main routes.

It is also why we have made a commitment, which noble Lords are keen to see, to review the entire publicly funded pre-19 qualifications offer in 2013. By then, we will be in a position to look at all qualifications in the offer and the contribution made by each. Limited reviews focused on individual qualifications before that date would not enable us to make sound, objective judgments. I assure noble Lords opposite that all regulated qualifications will be considered in that review.

I shall speak briefly about Amendments 263 and 274 on JACQA and the funding of pre-19 qualifications in schools and colleges. We believe that it is right that the responsibility for taking decisions on funding eligibility should remain with the Secretary of State. I appreciate what the noble Baroness, Lady Walmsley, said, but we have to disagree. It is an important principle that Ofqual's regulatory decisions should be kept separate from the policy role that the Secretary of State takes. Decisions about what qualifications to fund are policy decisions, as the noble Lord, Lord Lucas, made clear. It is for the Secretary of State to decide whether a qualification is appropriate for use in the state sector, and whether it is consistent with the national curriculum and with his or her wider strategy for qualifications. Government has a responsibility to our young people to ensure that the qualifications they study for are coherent—we will come on to that word—and provide good progression routes into further study or employment. Government also has a responsibility to the taxpayer to make sure that qualifications provide good value for money.

As the noble Lord, Lord Lucas, said, the Joint Advisory Committee for Qualifications Approval—JACQA—has been established to advise the Secretary of State on which pre-19 qualifications should be eligible for public funding. That decision remains with the Secretary of State under the Learning and Skills Act 2000. JACQA's membership has been set to ensure that views of key stakeholders—employers, universities, schools, colleges and learners—are taken into account in the advice to the Secretary of State on which qualifications should be eligible for public funding. The aim is to ensure transparency in the process, so I am delighted to have the opportunity to talk about this on the record.

The published criteria set out the basis on which decisions about public funding eligibility will be made. These criteria, along with a full explanation of its evidence-gathering and decision-making processes, are included in a new JACQA handbook for awarding organisations, which will be published later this month. I will ensure that, when it is published, it will be made known to Members of the Committee. The Secretary of State's decisions are similarly published. JACQA will also publish an annual report on its activities; the first will be in December. I can confirm today that the annual report will include a summary of those qualifications not recommended for approval and the reasons for those recommendations.

I hope, having been able to help JACQA to come out of the shadows, and with the assurances that I have given noble Lords, that noble Lords will feel able not to press their amendments.

Baroness Perry of Southwark (Conservative)

Is the IB included in the calculations for the league tables for schools?

Baroness Morgan of Drefelin (Labour)

I am receiving inspiration at the moment, which may help the noble Baroness.

Just to clarify, the funding for the international baccalaureate pilot scheme has now come to an end. Like other qualifications approved under Section 96, the IB remains eligible for funding—I think the noble Baroness, Lady Verma, was concerned about this.

The answer to the question asked by the noble Baroness, Lady Perry, is yes; the IB is included in the AATs.

Baroness Walmsley (Liberal Democrat)

My Lords, I am grateful to the Minister for her comments. As I said earlier, it may be for the Secretary of State to decide what should be funded, but he is advised on that by the QCDA, so why does he need JACQA?

Baroness Morgan of Drefelin (Labour)

My Lords, JACQA's role is to bring together cross-sectoral advice in a transparent and systematic way to advise the Secretary of State in his decision-making.

Baroness Walmsley (Liberal Democrat)

Why cannot the QCDA do that?

Baroness Morgan of Drefelin (Labour)

My Lords, we will come on to the role and functions of the QCDA. Quite different roles need to be fulfilled. JACQA is about making value judgments about funding rather than expert decisions about the curriculum, the running of national assessments, and so on.

Lord Lucas (Conservative)

My Lords, I am grateful to the Minister for her attention to my amendments. She illustrated rather neatly the power that JACQA gives to the Secretary of State and the impotence of any form of publication about what it does when she said that the IGCSE had never been submitted for approval. It was never submitted for approval because the Secretary of State, or rather the Minister for Schools, indicated that, if it was, he would not fund it anyway; so, unsurprisingly, no one has gone to the trouble of submitting these things for acceptance. However, if it was clear that the Government were prepared to fund them, they would be submitted like a shot because there is a big market for them in grammar schools. Indeed, grammar schools would take to them like a duck to water, as have many independent schools now. Particularly for bright kids, but generally for someone of a more analytical frame of mind, they are a great replacement for the rather degraded set of examinations that are GCSEs. This power is a great weapon in the Secretary of State's armoury, and I agree with the Minister that it is entirely appropriate that the Secretary of State should have it. He can receive all sorts of advice from all sorts of directions, but he must decide these things. It is his responsibility, and I am delighted that the power remains with him.

As my noble friend Lady Perry said, the IB is at a very inflated rate in the performance tables. It is rated as five A-levels, even though the teaching time for it is perhaps three-and-a-half A-levels, which, to go back to Amendment 261, is another reason why I should like there to be a proper independent rating of these things. However, I very much hope that in the future we will see arrangements whereby the state sector is again allowed to innovate. It is wonderful that independent schools are getting back to innovating, are bringing in the IB and are supporting the Pre-U and the IGCSE. But that should be happening in the state sector too, where it will require a degree of openness and encouragement.

Some things really need to be done. For example, our IT qualifications at GCSE and A-level are miserable and boring. They are stuck in the IT of 20 years ago with spreadsheets and business practices. There is no programming or engagement with the web. Certainly, there is no Web 2.0 and interactivity, which is what all the kids are doing for themselves. IT should be a wonderful, exciting examination that sets students off at pace into the outside world. Instead, it is an absolute drag and is done only by those who cannot find more interesting things to do, which is a disgrace. All that needs to happen is for innovation to be encouraged and allowed, and better examinations would emerge. For now, I beg leave to withdraw the amendment.

Amendment 263 withdrawn.

Clauses 151 to 153 agreed.

Clause 154 : Review of regulated assessment arrangements

Amendment 264 not moved.

Clause 154 agreed.

Clauses 155 to 163 agreed.

Clause 164 : Annual and other reports

Amendments 265 to 269 not moved.

Amendment 269A had been retabled as Amendment 276ZZA.

Clause 164 agreed.

Clauses 165 and 166 agreed.

Schedule 10 agreed.

Clause 168 : The Qualifications and Curriculum Development Agency

Debate on whether Clause 168 should stand part of the Bill.

Baroness Verma (Conservative)

It will come as no surprise to the Minister that the main focus of our objection to the QCDA is that it is yet another body within this deeply quango-centric Bill, during the course of which we have consistently argued for a change in the Government's approach. Rather than the quango-filled, bureaucratic tangle we have before us, we would prefer a streamlined, simple and clear-cut structure, which would be transparent and accountable.

Within such a framework we would hope to remove the need for the QCDA altogether and thus cut down on yet another agency. As the Bill stands, the QCDA is responsible for the QCA's non-regulatory functions. According to the Explanatory Notes it is designed to support,

"Ministers on developing the curriculum and related qualifications and delivering National Curriculum assessments".

It is understandable that the Government, when they removed the regulatory functions from the QCA, thought that it would be only natural to form another agency out of the remaining functions. Nevertheless, this approach is symptomatic of a government whose first thought is bureaucracy over simplicity.

We would move the functions of the QCA in relation to the national curriculum back to the Department for Children, Schools and Families, which would achieve two goals. First, Ministers who are responsible for making promises with regard to the curriculum could be held accountable for these promises. Secondly, it would carve at least one quango from this Bill and take one step towards reducing the bureaucracy that this Government have introduced.

At this year's Conservative Party conference, my honourable friend Michael Gove said:

"We need to take education out of the hands of these unaccountable quangocrats",

and so cut the waste out of the system. We on these Benches feel that removing the QCDA is an important part of these reforms. I will be interested to hear the Minister's claims that in order to have Ofqual we must, therefore, have the QCDA. We do not believe that this is the case and it is perhaps telling that this is the solution the Government have come up with—another issue, another quango.

I am fully aware that it is doubtful whether the noble Baroness will agree with our assessment of this clause and indeed this part of the Bill, but I was interested to note that Cambridge Assessment has been in touch with its legal advisers and has concluded that it would be perfectly possible to dissolve the QCA and hand its functions over to the Secretary of State. In other words, this is not a wrecking amendment. It is perfectly possible to pass a Bill that includes Ofqual but excludes the QCDA, so I hope that the Minister will consider removing this quango from the Bill. I look forward to her response.

Lord Lucas (Conservative)

My Lords, I have tabled an unconscionable number of clause stand part debates. It was an e-mailed request to the Public Bill Office which has been interpreted in absolute full. But the effect is exactly what I wanted, which is to demolish the QCDA and leave no trace of it in the Bill, although I could have drafted the last amendment, Amendment 276ZZA, rather better. I think it should refer to the QCA rather than the QCDA, which would not then exist because I would have already deleted the clauses referring to it.

My objective in this is positive. I think that the curriculum belongs with the Secretary of State. We have had a long period of the curriculum being looked after by a quango and what we have now is ever-increasing complexity and specification with less time for schools to teach beyond the curriculum, along with less freedom for teachers. This congestion and sclerosis have resulted in such things as modern languages being thrown out for lack of room because all these other things have to be taught. While quangos tend to complicate matters because they want to take into account, accommodate and include everyone's view so that the curriculum satisfies every good idea that is brought to their attention, Ministers tend to simplify. They want something that is clear, usable and focused on the sort of things they feel people care about. A Minister-led curriculum would be lighter, clearer and simpler, and would allow more time for schools and teachers to go their own way, which is very much my objective.

Baroness Walmsley (Liberal Democrat)

I think it would depend on the Minister, and I rather suspect that the Opposition's attitude to the QCDA has more to do with their expectations of future glory and the wish to bring all this back and centralise it with the Secretary of State. We do not take the same view.

I agree absolutely with the noble Lord, Lord Lucas, that schools should be freed up to innovate and not be restricted by an overly prescriptive curriculum. Our approach would be to have a minimum curriculum entitlement for all children and then a wide range of options for schools to offer what they believe would suit their children in their situation. Indeed, they have a duty to do that. However, a slightly more arm's-length body such as the QCDA advising the Secretary of State is not quite such a bad idea as the Opposition think.

Viscount Eccles (Conservative)

My Lords, it may be worth trying to assess the reality of the independence of the QCDA. It is to be a non-departmental public body. It was clearly stated in 1997, which is now getting to be quite a long time ago, that non-departmental public bodies were to be, to varying degrees, at arm's length from Ministers. However, the Explanatory Notes to the Bill state that the QCDA will report to Ministers. They do not say that it will report to Parliament, so the Select Committee procedure will be completely ignored. I can assure noble Lords that if you are in a non-departmental public body and you have some responsibility, the thing that worries you is not that you might be summoned to see the Minister, but that you might be called to appear in front of the Select Committee. Ignoring the Select Committees gives the game away as to what the accountability of the QCDA is intended to be.

An NDPB has a structure, with a chairman and a board, and is almost always said to be "independent", and, indeed, we may be given some indication of the degree of independence which the Government think the QCDA will have. In the Oxford English Dictionary, "independent" means "free from the control of". In my study of independence, I have always taken Jane Austen quite seriously. She had a clear idea of what "independent" meant and she spelt it out on more than one occasion; it was usually a desirable feature of a bachelor.

However, the question becomes: at what point does the degree of control over a body mean that you cannot any longer say that it is independent? There must then come a point where the independence is either illusory or so eroded that the game is not worth the candle, and why should anyone of real quality and experience want to be the chairman—or, indeed, a member—of such a body? This is the position of the QCDA. The Bill ties it down to a much greater degree than was the QCA tied down in the 1997 Act. The word "must" has crept into its relationship with the Secretary of State with an unprecedented Hegelian frequency, and directions are more frequent and less specific; previously confined to parts of the Act, they are now of general application.

There seem to be two reasons for this creeping erosion of independence, this centralising of control by the executive, which is recognised in the Explanatory Notes where they refer to being accountable to Ministers but not to Parliament. The first reason for the erosion is that one driving force of the third way is the secular certainty that centralised executive power in the hands of Secretaries of State is the way forward. We may—as, indeed, the Liberal Democrat Benches do—object to that, but if it is there it has to be recognised; it is no good wishing that it was not. The second reason is ministerial frustration. As policies seem not to be working—as when the decision is reached that the Learning and Skills Council needs to be abolished—so it follows that the rules governing its successor bodies must be more mandatory; Ministers need them to be so. Thus the screw turns: now we see the possibility of independence; now we do not.

Logically, if independence is an illusion—and that is revealed—and the reality is tight control by the Secretary of State leaving no room to manoeuvre, then why have a non-departmental public body? Why devalue the institution in that way? Would it not be more sensible to make the whole exercise the clear responsibility of the Secretary of State, as has been argued by my noble friends? In that way, if Parliament goes about its business properly, parliamentary accountability will be restored. The functions of the QCDA would be better discharged and accounted for if they were in the hands of the Secretary of State.

Baroness Perry of Southwark (Conservative)

My Lords, a little history might help us here. Before the 1988 Act brought in by the noble Lord, Lord Baker, there was no external body to control the curriculum. Various bodies, such as the Schools Council, could advise on, consider, discuss and launch various experimental parts of the curriculum and so on but, nevertheless, in those days the Secretary of State was the only person who could have intervened at any stage. There was no national curriculum. It was the 1988 Act—21 years ago now, so I suppose that it is celebrating its 21st birthday before it dies—that laid down a basic curriculum.

I was a great admirer of the concept of having a broad and balanced curriculum and of laying down that it should include English, mathematics, a science, a social science and so on. Much though the national curriculum has become an object of criticism and dislike by many people in recent years, we tend to forget that in its original form it was simple and broad and left an enormous amount of freedom for individual schools to experiment and innovate. It ensured that young people going through their secondary education, particularly the latter half of it, did not become too narrow in what they did. Various surveys by Her Majesty's inspectorate had found that young people might be taking five GCEs or CSEs, in the days before those were brought together, all in the same corner of the curriculum; they could all be maths and science, or all social science and history, or all English and literature and so on. That did not seem to be a very broad curriculum.

The concept of the broad and balanced curriculum that came through in the 1988 Act was a simple one that could very well have stayed in the hands of the Secretary of State. It was then handed over to the first of these many bodies that have changed so many times, the National Curriculum Council, which was then separate from examinations, and it was that quango that turned it into the nightmare that it became, with 458 different assessments needing to be made and so on. My noble friends are putting forward the concept that the matter of the curriculum should ultimately be left in the hands of the Secretary of State, rather than being handed over to a quango full of people who all have axes to grind—the physicists want special kinds of physics, the historians want a particular kind of history and so on. That is where it went wrong before and I would be nervous that we were perpetuating a system that overcomplicated, overcontrolled, took away innovation and took away the professionalism of teachers in schools.

Baroness Morgan of Drefelin (Labour)

Again, my Lords, this has been a fascinating debate. The noble Viscount, Lord Eccles, took us on a helpful journey and explained eloquently the spectrum of independence, from how Ofqual might be defined as an independent regulator through to the SFA as an agency. This debate gets to the heart of some of the differences around the Chamber.

It might have been helpful in the previous debate if I had mentioned to the noble Baroness, Lady Walmsley, that the QCDA will be a joint chair of JACQA; I had that note, so I thought that I would throw that in while I was on my feet.

The noble Baroness, Lady Perry, gave us a helpful insight into the history of how we have come to where we are. I stress, though, that on the question of the erosion of the independence of the QCA we would argue that the QCA legislation, the 1997 Act, already provides for the Secretary of State to direct the QCA or to require it to have regard to plans. There really is no significant change for QCDA provisions. Accountability to Ministers is, and will remain, clear. The noble Viscount, Lord Eccles, asked about the QCDA's accountability to Ministers and how that might affect its relationship with the Select Committee. I am absolutely confident that the QCDA will come before the Select Committee and be able to be questioned by it, as I am sure noble Lords would expect.

To those who ask whether we need a Qualifications and Curriculum Development Agency, I would attempt to explain that ministerial decisions on curriculum, qualifications and assessment policy issues need to be informed by expert and professional advice. Once those decisions have been made, we need an agency that is capable of putting them into practice and ensuring that we have high-quality curricular assessments and qualifications.

Since these advice and delivery functions are clearly accountable to Ministers, who are accountable to Parliament, it is fair to ask—as did the noble Baroness, Lady Verma, very clearly—why those functions cannot be performed within the department. There are two principal reasons why we believe that the Bill's approach is correct. First, the department's responsibility is to lead and manage the system. Its role and expertise are principally about policy and strategy. It is generally not appropriate for the department to have large delivery and professional functions in-house. This is our approach. Just as funding of teacher training is done by a non-departmental public body, similarly, the specific functions relating to the QCDA's remit sit well in an agency—an agency that will have the culture and focus to enable it to develop professional knowledge, technical skills and the kind of organisational culture that we need.

Secondly, we need transparency. Some of the functions of the QCDA need to be carried out at one step removed from Ministers—most obviously, when delivering national curriculum tests. I would be very interested to hear from the noble Baroness, Lady Verma, whether she would expect the national curriculum tests to be delivered directly by the Department for Children, Schools and Families and whether that is what is being proposed. Given the importance of test results, everyone needs to be confident that they are delivered impartially. Even with Ofqual as a regulator overseeing tests, there must not be any suspicion, however unfounded, that Ministers have an opportunity to influence the detailed delivery—by setting grade boundaries, for example. This point has been made by the party opposite in this Committee.

Like every other public body, the QCDA will need to be efficient, as we would expect the highest standards of governance. The forthcoming move of the QCDA to Coventry, for example, following the Lyons review a few years ago, will significantly reduce the agency's costs. It is simplistic to argue that the creation of Ofqual means that it is not appropriate to maintain the QCDA functions and that it is a straightforward matter to bring its functions into the department. That would be a significant mistake. We will challenge the QCDA to take advantage of its relocation to drive down costs and I am confident that it will respond positively. The QCDA will be an efficient and effective organisation at the heart of England's education system. It will not make policy; that is for Ministers.

With regard to the analysis of the noble Viscount, Lord Eccles, we are clear that the QCDA will be an arm's-length body, have independence within a clearly defined remit and be accountable. It will support Ministers in delivering policies and be accountable through Ministers, with a clear and transparent remit, reporting to ministerial remits and not going off and doing its own thing. Our approach has an extremely strong commitment to an independent Ofqual and to the appropriate governance for the delivery and expertise that we wish for from the QCDA. I hope that, with those reassurances, noble Lords will allow the clause to stand part.

Viscount Eccles (Conservative)

Clause 169 says:

"The QCDA's objective is to promote quality and coherence in education and training in England".

How can anybody do that without going off and doing their own thing? How can you find the line between policy and the delivery of policy? My father was twice the Secretary of State for Education and I thought that the Department of Education was a great department of state. I cannot accept that it should not have anybody within it responsible for any part of the delivery of the Government's policy. That seems the most extraordinary statement—that in some way we must separate the creation of policy from its delivery. It is not done in this Bill; if the QCDA's objective is to promote coherence, that is a major policy decision, I should have thought. But I cannot see how you can separate those things in such a way, which leaves one with the question of why there is a wish to separate them. Why is there a wish to erode the accountability of Secretaries of State to Parliament? How does that go down on the "Today" programme? The more one thinks about it, the more it simply does not work.

Lord Lucas (Conservative)

My Lords, I entirely support what my noble friend has just said. A fundamental problem with the Civil Service as it has emerged in the past 12 years is the continuing divorce of delivery from policy. If you operate the two separately, policy never learns from the problems that arrive in delivery, which just produces new policy with a whole fresh set of problems rather than building on what has gone before. We have seen that with this endless cycling of initiatives and destruction of institutions before they have had time to establish themselves. That must be the wrong way in which to run the Civil Service; delivery must be an integral part of the whole process of managing a department.

I agree with the noble Baroness that I would not have the Minister setting the examinations. As I said under an earlier amendment, I would have that done professionally, as GCSEs and many other examinations are done, by organisations set up for that purpose. I do not see why it has to be retained within government. However, the idea that separation produces anything other than confusion, bad policy and bad delivery is very much given the lie by the performance of this Government and department over the past 12 years.

Baroness Walmsley (Liberal Democrat)

My Lords, we take the contrary view. We think that separation is extremely necessary.

Lord Elton (Conservative)

Would one be entitled to ask what the rationale is behind that?

Baroness Walmsley (Liberal Democrat)

My Lords, I do not really think that it is appropriate to go back to debating in this group something that we have already debated in Committee.

Clause 168 agreed.

Schedule 11 : The Qualifications and Curriculum Development Agency

Amendment 269B

Moved by Baroness Sharp of Guildford

269B: Schedule 11, page 207, line 33, leave out "8 and 13" and insert "12 and 15"

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, in moving Amendment 269B I shall speak to the amendments grouped with it. The noble Baroness, Lady Perry, reminded us that before the national curriculum was introduced in 1988, there was no such thing and that examinations were set by the special assessment boards. They, incidentally, were largely influenced by universities. Indeed, going back a little further in history to the post-war period, one reason that education within the German state was given to the Länder state organisations was because we had poured scorn on the degree to which political influence had set the national curriculum in states such as the Nazi and, for that matter, the Soviet state.

The great danger of politicising the national curriculum is there; we say, carefully, that the Secretary of State has to be the one who decides, yet there are virtues in going back to the situation where the universities set the curriculum. Indeed, I believe that, in the other place, the honourable gentleman Mr Willetts has even suggested that that might be quite a good idea. From these Benches, our notion is close to that which the noble Baroness, Lady Perry, talked about on the early days of the national curriculum. We see there being some advantage in having what we call a minimum curriculum offering, because during the 1970s and 1980s there was certainly a time when schools were doing very different things, and it was quite a good idea to be able to pull it together nationally.

If there is to be some form of minimum curriculum offering, and decisions on what that offering shall be reside with the Secretary of State, it seems appropriate to us—and here I come back to what the Minister was saying—that within the department, if the Minister is to take those decisions it is surely better that those who advise him are people with some professional competence in education rather than his civil servants, whose competence is in policy and strategy, not in the professional area. If the Secretary of State is to have responsibility it therefore seems appropriate, in a way, to have some advisory body, which should on the whole comprehend the professionals rather than just being civil servants.

This group of amendments is, therefore, about who should be on the board of the QCDA. We believe that, in order to carry out its functions properly, the QCDA needs to be able to call on the expertise of people on the board with knowledge and experience in the areas of education and training with which it will largely be dealing. It is vital that it does not consist of just industrialists and accountants but some real, down-to-earth educationalists who know what is going on and are up to speed on the latest thinking.

First, we think that the proposed board is rather too small to contain that expertise, so with Amendment 269B we want to increase its minimum size from eight to 12 and its maximum size from 13 to 15, which is not a substantial increase in size but a slight one. Amendment 269C is in fact taken straight from the Education Act 1997 and the terms of reference for the QCA, so that those who constitute the board shall be persons with experience, first, in education, as in sub-paragraph (a) of that amendment, secondly, in training or, thirdly, in the "industrial, commercial, or financial" world. However, we have added a requirement for two-thirds of the membership to have experience in all the areas of education covered by the QCDA.

Amendment 272 would require that the QCDA take account of the expertise and practical knowledge of the awarding bodies. These bodies are eager to work with the QCDA, as well as with Ofqual, and I am sure that both organisations would benefit from listening to their considerable store of knowledge.

Amendment 273 would remove Clause 171(2), to stop the Secretary of State from meddling by preventing the QCDA from working on a particular qualification, even if it thinks it necessary. Amendment 275 to Clause 184 would bring the academies into the local family of schools by ensuring that children there have the same entitlement to the national curriculum. As the Committee may know, academies may currently move outside the national curriculum. Under Liberal Democrat policy, all schools would have more autonomy over the whole curriculum, but all children would receive a minimum curriculum entitlement. I beg to move.

Lord Lucas (Conservative)

My Lords, I have Amendment 271 in this group, which does not really seem to belong with anything that the noble Baroness, Lady Sharp, has talked about, most of which I found myself approving of, having been at odds with the Liberal Democrat Benches over a couple of amendments. Even her last amendment, under the scenario she paints in which we would have a curriculum that took only half the time in school, I would approve. However, the idea that it should apply now, when we have a curriculum that takes up 120 per cent of school time? Perish the thought.

The purpose of my amendment is to draw attention to the word "coherence". It is not a term defined in art, but it seems to be the opposite of "diversity". It seems to give the QCDA the remit of trying to eliminate any new shoots which may appear and sprout off in unexpected directions, and to remove the diversity in the system. That diversity is in many ways a source of strength to the system. One can find, certainly in independent schools with their broader ability to look at qualifications, a qualification that fits any particular group of learners and replace it with something that requires a focusing-down in which everyone sings the same note. That is what "coherence" means—at least in physics. A "coherent" beam of light does not diverge. There is no diversity and everything sings exactly the same tune all the time. I find that a distressing direction for the QCDA to be given.

Baroness Verma (Conservative)

My Lords, we have made our position on the QCDA clear, so I will keep my remarks brief. I express particular sympathy with Amendment 269C of the noble Baroness, Lady Sharp. Indeed, as I made clear in the previous debate, we on these Benches do not believe that such a body as the QCDA is necessary. Nevertheless, we have advocated through the Bill the importance of including the views of those with the knowledge and expertise that comes from being involved in education, training and professional matters. If the QCDA is to exist, it is obviously sensible that it should include people with the relevant experience, knowledge and understanding to allow the quango to fulfil its functions more effectively.

I will also be pleased to hear the Minister's response to the amendment of my noble friend Lord Lucas. We agree with him that the inclusion of the word "coherence" seems strange. The curriculum should be set out in such a way as to improve standards. The body responsible for the development of the curriculum and qualifications should play an active role in seeking to create a framework which concentrates on promoting and improving standards. Does the Minister not agree that, as the objective of the QCDA is laid out in the Bill, it is important that this vital element is included and made clear in primary legislation?

Baroness Perry of Southwark (Conservative)

My Lords, it is, of course, absolutely right that the Secretary of State should have advice from knowledgeable, experienced people who have expertise in the field on which they are advising, but I am bound to say that the Secretary of State already has access to such a body. HMI, which is within Ofsted, comprises senior professionals of senior Civil Service rank. They have intimate knowledge of the system and what is happening in schools through inspection. Why cannot the Secretary of State have a small number of the most senior HMI staff within the department to provide advice, as used to happen? In that case, you would not need this quango at all.

Viscount Eccles (Conservative)

I am amazed that anybody should think that any Secretary of State would go short of advice from the education fraternity. It has always seemed to me that the one fraternity willing to give you any amount of conflicting advice was the education community. As regards the national curriculum and qualifications, which is the chicken and which is the egg? Is the national curriculum organised in such a way as to support the approved qualifications, or do the approved qualifications come out of the national curriculum?

Baroness Howe of Idlicote (Crossbench)

My Lords, this matter becomes even more complicated as time goes on. Perhaps one should stick to the old, brilliant Ofsted system, although some might question that. I certainly agree with the import of the two amendments in the names of the noble Baronesses, Lady Walmsley and Lady Sharp; namely, if there is to be a such a body we should spell out the people who will be part of it, as they have done very effectively.

Baroness Morgan of Drefelin (Labour)

I think that the national curriculum is the chicken and the assessments and qualifications are the egg. That could probably make a good essay for a budding education student. No doubt I shall hear from many of them because there are bound to be lots of people listening to these debates.

I hope that I can respond fully to these amendments. As I have asserted, Ministers need the QCDA to provide expert and professional advice and support to the development and delivery of their objectives for the curriculum, assessment and qualifications. I appreciate that many people wish to give advice to Secretaries of State about a whole host of issues. However, the QCDA is very much about bringing together that professional advice systematically, being in touch with the national curriculum, keeping it very tightly scrutinised, commissioning research and carrying out a whole host of activities which support the role of giving Ministers that professional advice systematically.

Amendment 271, in the name of the noble Lord, Lord Lucas, concerns coherence and makes a very interesting point. Everything that the QCDA does, for example on the curriculum, should be with a view to helping young people leave school with the skills and knowledge that enable them to play their part in society, and to be successful in future education or employment. QCDA cannot achieve that by looking at individual parts of the curriculum in isolation. That is where the word "coherence" comes in. QCDA should seek to ensure that, collectively, those parts provide a broad and balanced curriculum—that is very important, as the noble Baroness, Lady Perry, stressed—so that skills and knowledge in different parts of the curriculum reinforce each other. Learning at one stage of the curriculum should build on what has gone before and provide the foundation for what follows. That has been clearly articulated following the reviews of the secondary and primary curriculums. Both words—"quality" and "coherence"—need to be in the Bill.

We do not necessarily want Amendment 272 on awarding bodies in the Bill. The QCDA will be responsible for the development of draft criteria for qualifications such as GCSEs and A-levels. I want to be clear that the QCDA will act as an expert adviser to the Government on qualification policy issues, too. It could not do these jobs effectively without a strong relationship with a wide range of partners, including, of course, higher education—as the noble Baroness, Lady Sharp, made clear—employers, schools, colleges and awarding bodies. We do not need to tell the QCDA to do that; it will be easier for it to have a strong relationship with awarding bodies, particularly now that it will not be regulating them—Royal Assent permitting. I hope that we will see strong relationships developing.

On the further amendment on the Secretary of State's power to remove qualifications from the QCDA's scope, I am not sure that the Committee needs me to go into this, but if Ministers no longer need the QCDA's advice on a particular area of qualifications, it should not be obliged to keep on providing it. That probably goes without saying.

Amendment 275 on including academies in the QCDA's remit is unnecessary. Our current funding agreements require academies to inform the QCA of its assessment arrangements in respect of the core national curriculum subjects, and it would not be reasonable or proportionate in this case to legislate and hence alter the previously agreed position set out in signed funding agreements. The department already monitors the curriculum in academies before and after they open, and results show that they are improving faster than the national average, as we know very well.

The noble Baroness, Lady Sharp, talked about the importance of getting the governance right for the QCDA. Under the current legislation, the QCA board has to have between eight and 13 members, and that has served us well. It is big enough to allow for a rich mix of people but small enough to allow it to take decisions effectively. In fact, on the QCA there is strong expertise from the higher education and education sectors. There is a vice-chancellor, a head teacher, an FE principal, as well as employers. However, I appreciate the noble Baroness's concern to obtain the right involvement in the right way from the right experts. The QCDA has general duties to have regard to reasonable requirements of learners, employers and HE. You do not necessarily have to have members on the board to have regard to the requirements of learners, employers and HE. That is not necessarily the only way of ensuring that their views are taken on board at the highest levels. The QCDA will listen to those views and those of all key stakeholders. However, the comments of the noble Baroness, Lady Sharp, were very reasonable, and I am happy to continue the conversation on that issue.

I think that I have picked up most of the points that noble Lords raised and that they will consider withdrawing or not moving their amendments.

Baroness Sharp of Guildford (Liberal Democrat)

I am grateful to the Minister for her full response. On Amendment 272, I am also grateful for her assurance that the awarding bodies will be consulted by the QCDA, because they have a great deal of expertise to offer. In relation to academies, she says that the detail is tied up in the funding agreements. The difficulty is that time and again there are individual funding agreements and if you want to know what is happening you have to look at each funding agreement to see precisely what it is. I do not think that that is a satisfactory situation. It would be much better if the academies were brought within the general body of schools.

Turning to the main amendments that we put forward—Amendments 269B and 269C—I take on board what the Minister says. Of course, the Secretary of State has the expertise available to him and many of those who currently sit on the board are experts. We proposed changing the numbers because we wanted two-thirds to represent those who have expertise in education and it is much easier to get two-thirds of 12 or 15 than it is of eight or 13. It struck us that, if all three sets of expertise were represented, it would be a good idea to have slightly more people than a minimum of eight and that it would be a good idea to have a number divisible by three. I am grateful to the Minister for her positive reply, which we may talk about further. I beg leave to withdraw the amendment.

Amendment 269B withdrawn.

Amendment 269C not moved.

Schedule 11 agreed.

Clause 169 : Objective

Amendments 270 and 271 not moved.

Clause 169 agreed.

Clause 170 : General duties

Amendment 272 not moved.

Clause 170 agreed.

Clause 171 : Qualifications within the QCDA's remit

Amendment 273 not moved.

Clause 171 agreed.

Amendments 273A and 273B not moved.

Clause 172 : Qualifications: general functions

Amendment 274 not moved.

Clause 172 agreed.

Clause 173 agreed.

Clause 174 : Curriculum

Amendment 274A

Moved by Lord De Mauley

274A: Clause 174, page 99, line 35, at end insert—

"( ) The QCDA must, no later than 12 months after the commencement of this Part, review the result of the abolition of National Strategies and lay a report of that review before Parliament."

Lord de Mauley (Conservative)

Noble Lords will be pleased to hear that I can be very brief on this amendment. We tabled it to obtain within 12 months of the commencement of this part a review of the result of the abolition of the national strategies, which was announced in the Government's White Paper of June this year. This amendment is tabled on the basis that, if the Government will not heed our advice to get rid of the QCDA, it might as well do something useful. As noble Lords will be aware, we supported Ed Balls in his decision to get rid of national strategies in favour of a system that would give more power to teachers, save money and allow attention to be paid to more effective means of raising standards. If, as I hope, the Government might be persuaded on our point in this amendment, I feel that I need say nothing more, other than that we look forward to hearing the Government's suggestions on how and when such a review might take place. I beg to move.

Baroness Morgan of Drefelin (Labour)

My Lords, I can be equally economical with the Committee's time. I agree that it is important when we look at issues such as significant changes concerning the delivery of key policies such as national strategies that we review the impact of the policies. There is a policy responsibility to do so—so a job for Ministers. I would be very happy to commit to the department undertaking a review that we will report to Parliament on the impact of these changes and that it should do so when the changes have had a chance to embed. I propose that we should do this within two years of the new arrangements going live.

Lord de Mauley (Conservative)

My Lords, I am very grateful to the Minister. On that basis, I beg leave to withdraw the amendment.

Amendment 274A withdrawn.

Clause 174 agreed.

Clauses 175 to 183 agreed.

Clause 184 : Interpretation of Part

Amendment 275 not moved.

Amendment 276 had been withdrawn from the Marshalled List.

Clause 184 agreed.

Clause 167 agreed.

Amendment 276ZZA not moved.

Clause 185 agreed.

Schedule 12 : Ofqual and the QCDA: minor and consequential amendments

Amendments 276ZA to 276ZD

Moved by Lord Faulkner of Worcester

276ZA: Schedule 12, page 222, line 39, after "provisions" insert "(other than provisions conferring or imposing functions as mentioned in subsection (7)(a) or (b))"

276ZB: Schedule 12, page 222, line 41, leave out from first "order" to end of line 43

276ZC: Schedule 12, page 225, line 12, after "provisions" insert "(other than provisions conferring or imposing functions on persons mentioned in subsection (2)(a) to (c))"

276ZD: Schedule 12, page 225, line 14, leave out from first "order" to end of line 16

Amendments 276ZA to 276ZD agreed.

Schedule 12, as amended, agreed.

Clause 186 : Arrangements to promote co-operation

Amendment 276A

Moved by Baroness Walmsley

276A: Clause 186, page 104, line 6, at end insert—

"( ) In subsection (2) after paragraph (e) insert—

"(f) housing."."

Baroness Walmsley (Liberal Democrat)

My Lords, I shall speak also to Amendments 276B, 276BA, 277, 277A and 278. We now come to the children's services section of the Bill, where we tighten up the arrangements on co-operation to ensure children's well-being.

The first three amendments in my name in this group relate to housing. Amendment 276A would add housing as a consideration in the arrangements between local authorities and relevant partners for the improvement of children's well-being. Amendment 276B would extend the duty to co-operate to include local housing authorities by naming them as relevant partners for children's services authorities in England. Amendment 276BA would add registered providers of social housing to the same group as those with a duty to co-operate.

I am aware that the Government believe that local housing authorities are already included in the arrangements for children's well-being and the duty to co-operate, but I do not believe that other social housing providers are. Besides, we believe that it is not happening on the ground. There is a lot of evidence from Shelter, which briefed us, that housing can have a profound impact on the well-being and safeguarding of children and young people but that there is currently a lack of information sharing between housing and children's services and a lack of understanding of procedures and good practice on both sides, which can result in vulnerable children slipping through the safety net.

Since the Laming inquiry into the death of Victoria Climbié in 2003, priority has rightly been given to joint working. Since then, legislation and associated guidance have required local public bodies to work together through children's trusts. There is little evidence to suggest that children's trusts have wholly succeeded in improving outcomes for children so far and there is a substantial amount of local variation. This Bill is intended to address the existing limitations of children's trusts by strengthening their statutory basis. In particular, the aim is to improve the co-operation of children's services authorities with their relevant partners. That is why we want to emphasise housing.

Extensive studies have shown the major impact that bad housing has on children's life chances. Homelessness, poor housing conditions and overcrowding all have negative effects on a child's development. For example, Shelter research has found that children living in overcrowded and unfit accommodation are almost a third more likely than other children to suffer respiratory problems.

Despite the proven links between children's well-being and housing, Shelter's children's service has found that there is a lack of information sharing between local authority housing departments and children's services around preventing homelessness, mitigating the impact of temporary accommodation on children and identifying additional support needs.

Given the significant connection between housing and children's health and well-being, Shelter believes that it is vital that the new legislation specifically recognises local housing authorities as relevant partners for the improvement of children's well-being in the establishment of children's trust boards. We have added other social housing partners in recognition of the fact that many housing associations and housing trusts house thousands of needy children every year. Making specific mention of housing in the Bill would also give housing providers a stronger voice and more influence over the strategic arrangements of children's trusts. This would go a long way towards ensuring that vulnerable families in difficult-to-reach circumstances are contacted by family support and outreach workers. After all, they all need housing and they will have contact with the housing department at least, or a social housing provider, even if they have no contact with social services or other children's services.

Amendments 277 and 277A relate to the children and young people's plans, which the newly statutory children's trust boards must set up and implement. Amendment 277 would require the CTB to produce a version of the plan in the language and format that is suitable for children to read and understand. Amendment 277A would require them to consult relevant groups when devising or revising that plan.

Article 12 of the UNCRC requires that all children have the right to express their views and have them taken into account and given due weight according to their age and maturity in all matters affecting them. Clause 187 transfers the duty of preparing and implementing the children and young people's plans from the local authority to children's trust boards. Existing regulations require local authorities to consult such children, relevant young persons and families in the area of the authority as they prepare their plan and, of course, we welcome the Government's commitment to transfer this duty to the children's trust boards. But existing regulations place an obligation on the authority to publish its CYPP on its website and send the plan to its relevant partners in public libraries and so forth. While we welcome these provisions, they really are inadequate because there is no explicit requirement to make the CYPP accessible to those most affected by it—in other words, children and young people.

Research has found that, while children and young people may be increasingly consulted in the preparation of the plan, they are not always informed or told about the outcome of the consultations. Therefore, the duty to consult should be accompanied with a duty to inform the participants on the outcome of the consultation. This currently occurs for parent and partner organisations, but it does not occur for children. Awareness of the plan is low among children. We believe that the benefits for children and young people for understanding local strategies would far outweigh the costs. A summary for children would ensure that they could understand what services they could access and what local service providers were doing to improve their well-being.

Finally, a word about Amendment 278, tabled by the noble Lord, Lord Morris of Handsworth, to which I have added my name. I will leave him to make the substantial speech on this, but I would like to thank the Bill team for the time that they have devoted to this issue. I support what the noble Lord is about to say and I look forward to the Minister's explanation of what the Government intend to do about this issue. I beg to move.

Lord Morris of Handsworth (Labour)

My Lords, in addressing Amendment 278, I speak against the background of the recently published report on children's rights by the Joint Committee on Human Rights. By any yardstick, the way in which we treat our children in the UK makes depressing reading.

In 2007, UNICEF published a report assessing the well-being of children and young people in 21 industrialised counties. It covered educational achievement, health and safety, poverty, behaviour and relationships. The UK came bottom. In April 2009, the Child Poverty Action Group published a similar assessment of child well-being in 29 European countries. The UK ranked 24th, behind Romania, Bulgaria, Latvia, Lithuania and Malta. These findings were widely reported and prompted media discussion about why the UK's children were apparently so unhappy.

This amendment does not seek to place a new structural or administrative burden on the system. It merely asks that the children's trust boards have regard to the need to implement the UN Convention on the Rights of the Child when preparing its young persons' plans. I for one can see no burden here.

In December 2007, the Government published their first children's plan. It aimed to put the needs of families, children and young people at the very centre of everything that we do. It set out the Government's plans for the next 10 years under each strategic objective of the Department for Children, Schools and Families. The introduction to the plan records that it has been developed with regard to the principles and articles of the UN Convention on the Rights of the Child. It is therefore unclear on what grounds the Government might oppose this amendment. Children England and the NSPCC have suggested that the UK needs to build a culture of respect for children's rights and believe that this could be achieved by embedding the principles of children's rights in policy-making and practices.

The Joint Committee, in its report, agrees with those witnesses who emphasised the benefits of incorporating the UNCRC into British law, accompanied by directly enforceable rights. The Joint Committee also stated that it is particularly significant that all four children's commissioners in the UK, with their extensive experience of working with children, think that it would make a real practical difference to children if the UNCRC were incorporated into UK law. The Government have not persuaded the Joint Committee that children's rights are adequately protected by UK law or that incorporation of the UNCRC is unnecessary. Having signed up to the convention on behalf of children in the UK, the Government now have a duty and a responsibility to make their agreement and support meaningful in every possible way.

Baroness Verma (Conservative)

My Lords, the main thrust of the clauses is to provide for the establishment of children's trust boards on a statutory footing and give them the responsibility of providing a children and young people's plan. I have listened very carefully to the amendments proposed by the noble Baroness, Lady Walmsley, and I look forward to the Minister's response. We, too, think that it is important to address the issue of who will be the relevant partners involved in a children's trust board. I would be very interested to hear what the Minister thought about involving the local housing authority. I would also be interested to hear her views on involving local GPs and Sure Start centres on the boards.

It is a point of fundamental importance that merely making the boards statutory will not solve any underlying problems. We also need to address the issue of who sits on the boards and who the significant, useful and relevant partners should be. We have therefore tabled Amendments 276AA and 276C. A demand for the independence of academies has been constant from these Benches so, again, the amendments are designed to ensure the autonomy and independence of the academies.

We believe that it is essential that academies should have the right to be represented on children's trust boards. It may be mutually useful for them to be represented there. Nevertheless, we believe that academies are independent organisations and should not have a duty of co-operation with the boards. The Independent Academies Association has expressed concern about the duty of having to be a relevant partner, when surely it would be more productive to turn that duty into a right, which would allow them, to cite the White Paper, to be,

"able to influence the strategic direction, commissioning and delivery of services for children".

As a right, academies would have their independence preserved, but would also have the capacity to be relevant and useful partners. I await the Minister's response with interest.

Baroness Morgan of Drefelin (Labour)

My Lords, this is again an important and stimulating debate as we move on to talk about children's services, the Bill's provisions for children's trusts and the children and young people's plan.

I start by focusing on Amendments 276A, 276B and 276BA, proposed and spoken to by the noble Baroness, Lady Walmsley, which concern housing. I put on record the importance of good housing and its impact on the well-being of children and young people and acknowledge that decent housing is a major factor in improving children's outcomes. I join others around the Committee in paying tribute to the work that charities such as Shelter do to promote issues of concern about housing—in this case, the impact on the quality of life for children that poor housing can have. I therefore fully support the aim of those three amendments to ensure that housing is integral to the work of children's trusts. It is important that the amendments allow us to have that debate.

The five Every Child Matters outcomes are what we mean by children's well-being, and we expect local services to work together more effectively to deliver them. The addition of services such as housing to the list of outcomes is therefore inappropriate, but I agree that good housing will be an important contributory factor in delivering the Every Child Matters outcomes.

The noble Baroness, Lady Walmsley, pointed to the fact that housing authorities are already captured by existing legislation. Top-tier and unitary authorities are the establishing authorities and district councils are relevant partners in children's trusts. Their housing departments are therefore already involved. However, the Government recognise that housing departments need to get more engaged; I support the noble Baroness in her remarks on that. I can reassure her that the new statutory guidance, going out for consultation shortly, will state that the chief executive, along with the director of children's services, should ensure that those links are forged and are working well.

We also recognise the important role that registered social landlords play. Through the children and young people's plan regulations, we intend to require children's trust boards to consult them when drawing up their plan. Also, the new statutory guidance will seek to ensure those responsible for housing locally are involved in the work of the children's trust board itself. The noble Baroness, Lady Walmsley, was especially concerned about the lack of information-sharing between local housing departments and children's trusts. I make clear that we are strengthening statutory guidance there. Through the comprehensive area assessments, we will assess whether the new arrangements are working effectively in practice. That is an important development to watch.

Turning to Amendments 276AA and 276C, I can assure the Committee that the clauses do not threaten academies' independence. I can reassure the noble Baroness, Lady Verma, in that regard. Adding academies to the list of relevant partners empowers them—in the way that I think that she is looking for—not only in local strategic decision-making, but also in forging strong links with other children's trust partners.

Although Amendment 276C would give academies the right to be represented on the children's trust board, that is different to the automatic representation that would be given to academies as relevant partners. Under that amendment, academies could choose not to be represented on the board. That could leave academies, which educate some of the most vulnerable children in our country, outside the most important partnership in the children's services world.

We are about empowering academies. I can assure the Committee that that is about better outcomes in services for young people and their families by making services integrated, accessible and available, not about academies losing their autonomy. Yes, we are requiring academies to work with children's trusts, but let me be clear: we expect children's trusts to engage positively with academies, as with other schools. There will be significant benefits from that way of working.

As a post script to my response to those two amendments, I remind the Committee that the consultation conducted last year into legislative options for strengthening children's trusts gave a clear steer that academies should be included on the same basis as maintained schools.

On Amendment 277, we wholeheartedly support the principle that the noble Baroness, Lady Walmsley, promotes of involving children and young people. I am happy to place on the record a clear commitment to set out in statutory guidance that we will expect children's trust boards to produce a child-friendly version of their children and young people's plan. That represents a significant strengthening of the current position.

On Amendment 277A, I am happy to confirm that the indicative regulations, which we have sent to Peers, will be placed in the House Library. They set out the different groups and bodies that we intend the children's trust board to have to consult when preparing the children and young people's plan. The statutory guidance will also emphasise the need to consult widely when preparing the plan.

I shall pick up on another point made by the noble Baroness, Lady Walmsley, about the importance of consulting young people. We recognise that the genuine participation of children and young people is vital for the success of the children and young people's plan, as our indicative regulations will show.

I now come to the powerful contribution made by my noble friend Lord Morris and the noble Baroness, Lady Walmsley, regarding the UNCRC. I am happy to put on record again a clear commitment to reference the convention in statutory guidance to which the local authority and its relevant partners must have regard. We will also look to offer practical advice and guidance to children's trust boards on how to ensure that their children and young people's plan is consistent with the principles of the convention.

We may have the opportunity to debate again—I hope we do—the Government's commitment to the convention. We are strongly committed to the implementation of the convention. We have had some very positive feedback on our approach to the children's plan and the UNCRC within that. However, the responsibility for implementing the convention lies with the state. In general, treaties and international conventions are not incorporated into UK law, as happens in some other countries. Our approach to the UNCRC has been to implement it through a combination of policy initiatives, guidance and legislation. The children's plan brings that together coherently.

Our primary concern is to focus on the outcomes that the convention requires and their delivery. Using specific pointers and instructions in guidance will be very successful in achieving the kind of change that is required to have regard to the convention in legislation. It is an extremely significant step forward for those who are concerned to see the UNCRC progressed in this country. For example, we plan to state in the guidance that children and young people should be engaged in line with Article 12 of the UNCRC, which states that, as the noble Baroness, Lady Walmsley, wants, children have the right to say what they think should happen when adults are making decisions about them. I believe this is a significant step forward. I am happy to put this clear commitment on record, and I hope that with that the noble Baroness will withdraw her amendment.

Lord Morris of Manchester (Labour)

I thank the noble Baroness, Lady Walmsley, for her support for Amendment 278. I thank the Minister for her clear expression of support for and commitment to the UN Convention on the Rights of the Child. On the basis of the guidance that she is intending to offer to trust boards in the preparation of their plans and on other policy issues, I shall not move my amendment.

Baroness Walmsley (Liberal Democrat)

My Lords, I am most grateful to the Minister for her reply to all the issues covered by this group of amendments. It is very gratifying that the Government accept the importance of housing in relation to the well-being of children. I thank her for mentioning that the guidance will ensure that the links are made stronger and that they will be assessed in the comprehensive area assessment. I am also delighted that she confirmed that social landlords will be consulted and brought more into the family of organisations that are working on the well-being of children.

I am staggered by the suggestion that academies should not have the duty to co-operate in this matter. Safeguarding children is not an option. It should be the duty of all relevant bodies. I thank the Minister for what she said about the child-friendly version of the Children and Young People's Plan, which was very gratifying, and also about the consultation with the relevant groups. I echo what the noble Lord, Lord Morris, said in welcoming the commitment she gave about the statutory guidance and the practical advice to children's trust boards on the compliance of their plan with the convention. As she rightly said, it is the responsibility of the state to comply with the convention that it has signed. However, I would have thought that part of that compliance would be ensuring that the convention was implemented by every relevant body in the state. It is very appropriate that that should be done, and I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment 276A withdrawn.

Amendments 276AA to 276C not moved.

Debate on whether Clause 186 should stand part of the Bill.

Lord Elton (Conservative)

This clause amends Section 10 of the Children Act 2004. I would like to leave a thought in the Minister's mind for her to reflect on between now and Report. It was stirred in me by hearing the noble Lord, Lord Morris, refer to the question asked by convention officials about why British children were so much less happy than others. That made me remember a large symposium brought together by the honourable Member in another place Diane Abbott, in which it emerged that children in large parts of London felt safer in the streets that they did at home or school. Section 10(4) of the Act lists those who are to be regarded as relevant partners with local authority children's services. It includes the police, probation and the youth offending team. The absence of the magistracy in some form needs to be thought about for two reasons: first, they would have something to contribute and, secondly, they would have a great deal to learn. It is very important that those who sentence young people understand the framework in which they have been living and to which they will be sent to live. I hope the Minister will bear that in mind if I put something down on Report.

Baroness Morgan of Drefelin (Labour)

As ever, I am very happy to think carefully about the contribution of the noble Lord.

Clause 186 agreed.

Clause 187 : Children's Trust Boards

Amendments 277 to 278 not moved.

Clause 187 agreed.

Clause 188 : Targets for safeguarding and promoting the welfare of children

Amendment 278A

Moved by Baroness Walmsley

278A: Clause 188, page 109, line 23, at end insert—

"( ) In section 66(4) of the Children Act 2004 (c. 31) after "section" insert "9A and"."

Baroness Walmsley (Liberal Democrat)

My Lords, I rise to move Amendment 278A, and I can be brief. Clause 188 inserts a new Section 9A into the Children Act 2004 in relation to setting targets for safeguarding and promoting the welfare of children. My intention is to make the first determination of these targets a matter for the affirmative resolution of Parliament to allow them to be properly debated, not just nodded through. This is a vitally serious matter in which many Members of Parliament take an interest since we still have far too many neglected and abused children in this country, as well as far too many needless child deaths. The Children Act 2004 contains a provision for a first set of regulations to be subject to affirmative resolution: the sunset provision on private fostering. My amendment is very simple; it refers to that provision and relates it to the first determination of the safeguarding targets. I beg to move.

Baroness Morgan of Drefelin (Labour)

My Lords, I hope that I can respond to the noble Baroness in 338 words, while in no way diminishing the importance of her concerns.

We agree with the noble Lord, Lord Laming, that setting statutory safeguarding targets is a necessary step in the drive to improve safeguarding and child protection in all areas, as the noble Baroness has already suggested. We also agree with the spirit of this amendment; it is absolutely necessary that the proposed targets are appropriately considered and consulted on. However, it is not necessary to achieve this through the affirmative procedure, and I hope to persuade her of that.

While I understand why the noble Baroness proposes that the regulations should be subject to the affirmative procedure, this provision, as she suggested, follows its equivalent in Section 1 of the Childcare Act 2006, under which the Secretary of State sets early-years targets in accordance with regulations. That regulation-making power is subject to the negative procedure rather than the affirmative procedure. We set this out in our memorandum to the Delegated Powers and Regulatory Reform Committee, which is content with our approach.

We have expressly specified in the Bill the matters which the regulations on safeguarding targets may address. These include the subject matter of targets, the periods to which targets might relate, and the procedure for setting targets. These issues have already been discussed as part of the National Safeguarding Delivery Unit stakeholder consultation workshops that were held over the summer, and I assure the noble Baroness that they have been very comprehensive and inclusive. The next stage will commence shortly when we launch a public consultation on the new package of safeguarding indicators and statutory targets.

It is right to consult fully on the details and to listen very carefully. We have listened very carefully in the generation of the documents for consultation. We will outline our proposals in this area, including the indicators against which targets would have to be set, the periods to which the targets would relate, and the procedure for setting them. As I have stressed, we have already consulted stakeholders on the development of our proposals for revised safeguarding national indicators and new statutory targets, and we are committed to continuing public dialogue and consultation on the regulations.

Given the extensive programme of consultation that we have embarked on and propose to undertake in the future, I hope that we will be able to proceed without the need for the affirmative procedure. Obviously that is entirely in the gift of this House—the committee will no doubt have a view on this, and I in no way wish to detract from the importance of these indicators—but we are also working closely with local authorities and stakeholders, and we need to have momentum to make this happen.

Baroness Walmsley (Liberal Democrat)

My Lords, I thank the Minister for her reply. Certainly the opinion of the Delegated Powers and Regulatory Reform Committee is very important in these matters, and all the consultations which the Minister has been at great pains to explain give me a certain amount of reassurance, but this is a bit technical so I will carefully read the Minister's reply in Hansard before deciding whether to press her further on the matter. In the mean time, I beg leave to withdraw the amendment.

Amendment 278A withdrawn.

Clause 188 agreed.

Clauses 189 and 190 agreed.

Amendment 279

Moved by Baroness Walmsley

279: After Clause 190, insert the following new Clause—

"Arrangements for seeing children separately

After section 16 of the Children Act 2004 (c. 31) (LSBs: supplementary) insert—

"16A Arrangements for seeing children separately

(1) The children's services authority shall secure that, when any child who is the subject of either—

(a) an investigation under section 47 of the Children Act 1989; or

(b) a child protection plan agreed by the Local Safeguarding Children Board,

and who is visited by his or her key worker, the child shall, if practicable and reasonable in the circumstances, be seen separately from his or her parent or care-giver.

(2) The key worker referred to in subsection (1) is—

(a) in the case of subsection (1)(a), the lead social worker appointed by the children's services authority; and

(b) in the case of subsection (1)(b), the key worker appointed by the Local Safeguarding Children Board.""

Baroness Walmsley (Liberal Democrat)

My Lords, I am afraid that I cannot guarantee to be quite so brief this time.

This amendment requires that a child who is the subject of either a Section 47 investigation or a child protection plan shall be seen by the key worker separately from the parents or carers. Section 47 requires the local authority to make inquiries, where a child is suspected to be suffering or to be likely to suffer significant harm, to enable it to decide whether it should take any action. A child protection plan is drawn up when the local safeguarding children board decides that the child is at risk of significant harm.

The amendment does not envisage the child being subjected to any sort of medical or forensic examination or interrogation. I thought that I would make that clear right from the start. However, experience of a large number of sad cases has shown that it is essential that the key worker's opportunity to get to know the child or to hear from the child is not compromised by the presence of the parent or carer.

Currently there is no law on seeing children separately. However, I accept that both legislation and guidance note the importance of obtaining children's views and perspectives. Section 53 of the Children Act 2004 placed a new duty on local authorities to ascertain and give due consideration to the wishes and feelings of children before providing services under Section 17 or making decisions under Section 47 of the Children Act 1989.

I also accept that in Working Together to Safeguard Children, the statutory guidance on child protection, there is emphasis on the central importance of the child in safeguarding procedures. In paragraph 5.4, the guidance comments:

"Some of the worst failures of the system have occurred when professionals have lost sight of the child and concentrated instead on their relationship with the adults. The child should be seen by the practitioner and kept in focus throughout work with the child and family. The child's voice should be heard and account taken of their wishes and feelings".

In paragraph 1.28, the guidance emphasises that assessing the risk of significant harm,

"depends on communicating effectively with children and young people, including those who find it difficult to do so because of their age".

Furthermore, in paragraph 5.62, local authority children's social care has the lead responsibility for Section 47 investigations, which,

"should always involve separate interviews with the child who is the subject of concern".

In paragraph 5.109, the key worker appointed under a child protection conference should,

"regularly ascertain the child's wishes and feelings",

and, in paragraph 5.119, the child protection plan should be,

"explained to and agreed with the child in a manner appropriate to their age and understanding".

So I am not saying that there is nothing in guidance; far from it—all these things add up to a strong imperative to see the child separately—but the facts of the terrible deaths of Baby Peter and others indicate that this is not enough. It should be a legal duty for three reasons. First, seeing the child separately from the parent is the only way in which the key worker can reliably fulfil their new statutory duties under Section 53 of the Children Act 2004. Secondly, seeing the child separately is central to the effective protection of children, a fact acknowledged by the Secretary of State, Ed Balls, in his press conference statement on the death of Baby Peter. Thirdly, it is clear from the three official overviews of child serious case reviews that guidance on the need to see children is not sufficient. These overviews all note that there is little to no evidence that the children who were subsequently murdered or injured were ever seen or talked to directly.

The study of serious case reviews in 2003-05 discusses the lack of focus on the child and children not being seen alone, and comments, on page 91:

"This also applies to babies who are not yet able to speak for themselves and can be ignored".

A skilled and experienced social worker can detect from the state of the baby and the way in which it interacts with the carer the sort of relationship that it has with the carer. The baby really does not need to be able to speak.

The obligation on agencies to share information is already in legislation. Seeing the child separately from their carers is just as important as sharing information, and many more children would have been protected from harm if their key workers had done so. Such a law would help key workers in their extremely difficult task of simultaneously supporting parents and policing them. It would allow the key worker to explain to parents that they are simply following the law when requesting to see the child alone and that this does not necessarily imply a lack of trust in the parent. The amendment would identify the bottom line; namely, that the child is the client in these circumstances, not the parents.

This amendment was debated in another place, where the Secretary of State, Mr Ed Balls, claimed that the matter was already in statutory guidance. However, in his argument that the amendment is unnecessary, he relies on the remark in paragraph 5.62 of Working Together to Safeguard Children that Section 47 inquiries,

"should always involve separate interviews with the child who is the subject of concern".

Apart from that, there is no mention of seeing the child separately. However, this amendment is not about formal investigations under Section 47. It is about key workers establishing a continuous, professional relationship with at-risk children separate from the carers. The Secretary of State suggests that the law enables social services to take emergency action if the parents refuse to allow the child to be seen alone. That is irrelevant, since they will seek such emergency power only if they have in the first place sought to see the child alone and have been refused.

This is not the time to be mealy-mouthed and claim that current statutes are sufficient. They are clearly not and the poor, little corpses of numerous children in the graveyards of this country are proof positive of that fact. It is time for the Government to listen to children in need, rather than to parliamentary counsel, and do something about it. I beg the Minister to take the lead and accept this amendment. I beg to move.

Lord de Mauley (Conservative)

My Lords, the noble Baroness, Lady Walmsley, makes her point very strongly. The evidence clearly suggests that it is all too easy for the signs to be hidden and for the issues to remain undiscovered if a child is able to be seen only with a parent. I will be very interested to hear whether the Minister thinks that it would be more suitable or helpful to institute a system whereby children are seen separately from their parents.

Baroness Howe of Idlicote (Crossbench)

My Lords, I very much support this amendment. As has been powerfully put over to us by the noble Baroness, Lady Walmsley, it seems to me that we have plenty of evidence of things having gone wrong for far too many young children. In particular, I want to think about the way in which children can be seen separately. More often than not, the families who cause problems are strong in their behaviour and the defence that they put up. Something that has always worried me is why on earth two social workers do not carry out the visit and be of sufficient support to each other when facing a difficult situation.

I do not think that what happened in another place is satisfactory. I hope that we can get a much stronger reaction from the Minister. I did not intervene previously, but some very powerful changes have been accepted. We have heard about the importance of the use of human rights, children's rights and so on, which will be even more important in future. This provision is fundamental and I warmly support it.

Lord Elton (Conservative)

This is of very great importance, which is sufficient to justify the elevation of this provision from guidance to statute, particularly as the statute, as I understand it, applies only to investigations under Section 47, which is only half the story. Recent history makes a great case for the Minister to answer if she is going to reply in the same terms as her colleague at the other end of the corridor.

Baroness Morgan of Drefelin (Labour)

I am delighted to respond to this important discussion. The noble Baroness, Lady Walmsley, has identified an extremely important step or principle, which should underpin the approach taken by children's services when engaging with vulnerable children. This is an important point in our deliberations. I do not wish to be facetious, but it would be possible to put something in statute, as well as in guidance, and still no action is taken. We have to do all those things. I will say why we do not need this on the statute book.

For me, this is about how we make the right statutory guidance and make it happen. The message that came through to me from the report of the noble Lord, Lord Laming, was how you go about doing it. "Just do it" was one of his mantras. However, I am for ever in the business of dialogue, as noble Lords have realised through this Committee stage. When the safeguarding clauses were introduced in the other place we made reference to the current provisions set out in statute and guidance designed to ensure that, where appropriate, local authority social workers see children separately from their parents and caregivers. The noble Baroness, Lady Walmsley, referred to the comments made by my right honourable friend, Ed Balls. But we know that there are concerns that, however strong the legislative and guidance framework is, this will not in itself ensure that all children are seen alone when appropriate. We have to think about how we will make that happen. We need to ensure that all children are seen alone, when appropriate, that their wishes and feelings are ascertained and that they are protected from harm in every circumstance.

The progress report of the noble Lord, Lord Laming, emphasised the importance of children being seen and their family circumstances being understood through their eyes. It is absolutely right that we tackle this issue of professionals losing sight of the child, which, as we have heard, again and again comes from the feedback and analysis that we see from serious case reviews. This is in line with the Government's statutory guidance, Working Together to Safeguard Children, which sets out the local authority's responsibilities when children are the subject of Section 47 inquiries and of child protection plans.

We have committed to publishing revised guidance later this year and we will make sure that seeing the child, alone when appropriate, and ascertaining their wishes and feelings are placed at the centre of undertaking Section 47 inquiries and implementing child protection plans. We will also emphasise that the social worker should record each visit to a child. I know that there is a debate about the level of paperwork and bureaucracy to which social workers are subject, but we are committed to the important step of record keeping. Where the child is not seen alone during such a visit, the social worker should record why not, which is an important step.

As we know, social work is a profession under significant pressure at the moment. There are significant challenges in capacity and in quality, which is well understood in this Committee. We cannot solve these problems necessarily through more legislation. We are addressing them through investment in, among other things, a support programme for newly qualified social workers to ensure that they have appropriate case loads and the high quality supervision that they need to develop into social workers who can prioritise the face-to-face engagement with children, and make good, professional judgements, as part of a strong profession, about the best way to work with parents and families.

We are also investing in the training and development of managers, as well as encouraging returners back to the workplace by creating new, advanced professional roles within the marketplace that will keep the best social workers at the front line. We are committed to building on this with a comprehensive reform of social work and, most important as this Bill progresses through Parliament, we will look at the report of the Social Work Task Force which is due soon.

As I have said, social workers have an incredibly difficult job to do, and it is vital that the child's wishes and feelings are taken into account. Section 53 of the Children Act 2004 amended Sections 17 and 47 of the Children Act 1989. As a consequence, local authorities are already required, so far as is reasonably practicable, to ascertain a child's wishes and feelings about what services might be provided or what action should be taken to safeguard and promote their welfare. It is about how we translate statutory guidance and requirements into practice.

We are revising the guidance entitled Working Together to Safeguard Children 2006 to make clear the responsibility of local authorities' child social workers and what kind of support and improvements are needed in the field. We are looking at new arrangements for the comprehensive area assessments of local areas, which were introduced in April 2009. Under these, Ofsted will undertake an annual inspection of each local authority's contact, assessment and referral centres. This is an important lever for driving up standards as part of the new arrangements for comprehensive area assessments. We will see a programme of inspection of services for looked after children at least once every three years. These inspections will include sampling of case files where visits to the child have taken place and whether it has been recorded that the child has been seen alone. The inspectors will look at gathering reviews of children and their families and thus provide a check on practical arrangements, which I believe will provide a significant step forward.

I shall close by saying that in no way are we complacent about the amount of work that needs to be done in order to promote a comprehensive safeguarding framework in this country so that the concerns that the noble Baroness, Lady Walmsley, is talking about are tackled as a matter of course. I hope that, with those reassurances, the noble Baroness will consider withdrawing her amendment.

Lord Elton (Conservative)

While the noble Baroness is considering whether to do so, might I say to the Minister that I for one will be exceedingly interested to see the reaction of the voluntary agencies engaged in this sort of work as well as that of the professional bodies. I would like to be able to do that before I make my mind up on the issue. If the noble Baroness is minded to withdraw her amendment now, we might be able to return to it.

Baroness Morgan of Drefelin (Labour)

My Lords, one of the most important steps in the revision of the "Working Together" guidance, which as noble Lords know is the Bible that governs interactions between the different agencies engaged in promoting safeguarding, is that of the statutory sector and the professional bodies working in partnership with the voluntary sector. It is essential that those views and perspectives are borne in mind so that we take up the opportunity to learn from experience in the field, particularly from tragedies such as the death of Baby Peter.

Baroness Walmsley (Liberal Democrat)

My Lords, I can say to the noble Lord, Lord Elton, that the voluntary agencies are right behind us in their support of this amendment. I thank the Minister, but I have no illusions about the fact that having this on the statute book will ensure that no child is killed by its parent or carer ever again. However, we have to ask ourselves why it sometimes happens that children are not seen alone. We have to do all we possibly can to make sure that social workers have everything they need in place.

I give the Government credit for the fact that they are recruiting more social workers, there is better training, and that only recently the noble Lord, Lord Laming, launched a new programme to provide specialist training in this field for newly qualified social workers in order to give them more confidence to deal with these issues. There must also be better supervision, and I know that the Government are doing something about that. However, they cannot say that they have done absolutely everything if they do not give social workers this particular tool. It will enable them to explain to parents why they must see children alone. The Minister talked about making a record of whether the child had been seen, and if not, why not. That will simply not do. In such a case, emergency powers must be sought to ensure that the child is seen. The noble Baroness used the phrase "as far as is reasonably practicable". Again, that is not enough when a child's life is in danger. She also told us about Ofsted and the comprehensive area assessments that will find out whether local authorities have been ensuring that their social workers are seeing children alone, but again that is all after the event. It is all very well, but it only highlights when things have gone wrong. That is too late because by then we have a dead child.

I take this issue very seriously and your Lordships might have detected how passionately I feel about it. I shall read carefully what the noble Baroness has said and decide whether to find a way of returning to this matter at the Report stage. We have to do every single thing it is possible to do. I repeat: I have no illusions that this is a magic bullet, but if we have not done all we can, we will blame ourselves. In the mean time, I beg leave to withdraw the amendment.

Amendment 279 withdrawn.

Clause 191 : Arrangements for children's centres

Amendment 280

Moved by Baroness Garden of Frognal

280: Clause 191, page 110, line 40, at end insert—

"( ) at which intergenerational learning activities for parents and children are provided"

Baroness Garden of Frognal (Liberal Democrat)

I shall speak also to Amendment 281. I thank the Minister for the detailed draft indicative regulations and statutory guidance on Clauses 191 and 192 which have recently been sent through. We all know the evidence that educating parents, in particular educating mothers, provides children with a better start in life. Many studies have shown that you can often predict the educational attainment of children by looking at the levels their parents reached. In particular, if parents receive education and support in the skills and knowledge needed to be a good parent, that inevitably benefits the child.

According to proposed new Section 5A(2) in Clause 191, children's centres exist to meet the needs of,

"parents, prospective parents and young children in the authority's area".

While they may focus on the child, they are also de facto centres for adult education. This amendment was suggested to us by the National Institute for Adult Continuing Education which does valuable work in adult education in other areas. The amendment clarifies that family learning is legitimate and appropriate for children's centres, and recognising this in legislation will strengthen this rather than risking it becoming a marginalised afterthought, or even being seen as an improper activity. Family learning enables parents to discuss not only parenting and childcare skills, and to understand their children's development, but also should provide an opportunity for them to reflect on their own careers in the labour force and how they may need or want to upskill or reskill in order to offer better lives to their children. Family learning plays a significant role in delivering the skills for life agenda of language, literacy and numeracy, and statutory recognition that it has a place in children's centres would allow it to become more effective. Educating parents is good for children. This is a probing amendment and we would welcome some reassurances from the Minister.

Amendment 281 requires each Sure Start children's centre to have a designated lead on child safeguarding, as schools are required to do. This would be particularly helpful in the multi-agency context of the children's centre as early identification of dangers to children could quickly lead to multi-professional intervention. This follows on from the words of my noble friend Lady Walmsley on the previous amendment; these are all linked issues. Understanding the early indications of child neglect or abuse can require considerable skill and experience. We know of cases where many experts have missed the signs in the children who have sadly died, where identification and strong action might have prevented tragedy.

The amendment has been suggested by Action for Children, which provides many of the children's centres. It has noted that within some SSCCs each agency has a separate file for each child. It believes that this is a very risky practice that has already been identified in some serious case reviews. It can be impossible to build up a full picture of the situation when each professional has only one or two pieces of the jigsaw and we strongly recommend better interaction between professionals. We need SSCCs to have a designated lead who has proper training, clear lines of accountability for safeguarding and access to all the relevant information. There should be an expectation for recording and sharing information. The role of SSCCs in child protection is key to this and should be acknowledged. I look forward to the Minister's reply. I beg to move.

Baroness Howe of Idlicote (Crossbench)

My Lords, I support these amendments. My name is attached to one amendment but I am equally enthusiastic about the others.

The noble Baroness's comment that educating parents is good for children is entirely right. It takes me back to an early visit that I made to a Sure Start centre, where the school was thoroughly involved in the process of catering for the parents who could come along. We should not forget that many parents who were not enthusiastic about their own education would often happily do as requested and drop their child at a particular point because they were not allowed beyond that, so we cannot expect them to much appreciate how things have changed since then. Now we have schemes where the adult can learn IT skills or go in for art classes and do the kinds of things that they might have been deprived of doing as a child; and/or they can work with their own children in the nursery classes on learning through play, which we are now back to hearing about as the way forward in every sense. I thoroughly support that kind of approach.

I fully support the other two amendments in relation to the safeguarding side of things and the requirement that community services must include health visiting and community mental health services. It is crucial to recognise that these centres could be other places in which early signs of special needs could be detected and worked on. I support the amendments.

Lord Elton (Conservative)

I hope that the noble Baroness will be able to tell us a little more about these institutions. I assume that they are for children of pre-school age, although I cannot see it in the Bill; probably I have looked in the wrong place. I wonder how long they will be open for. Is it term time or is it in the summer, when the parents are under greatest pressure? I thoroughly endorse what the noble Baroness, Lady Garden, said about—I do not like the word—intergenerational interaction, but we tend to forget that many parents have had no proper childhood themselves and have never learnt even how to play. Single children of single parents in deprived areas who have not had access to playgroups and the like start hugely handicapped when they become parents themselves, which they are apt to do in teenage years. They are therefore in need of emotional as well as intergenerational skills within their own generation.

This could be a lifeline to many children, because the art of loving and caring parenting is like a golden chain; once it is broken, once a child does not have it, they do not have it to hand on and it has to be restored. There is no effective way of doing that at the moment except in institutions, which are never well geared to do it. If these gatherings of adults can, with the child, instruct the parent on how to be a mother or a father, that would be a great step forward.

Lord de Mauley (Conservative)

My Lords, I have listened carefully to the explanation given by the noble Baroness, Lady Garden, of her proposed requirement for what Amendment 280 calls "intergenerational learning activities" and to what the noble Baroness, Lady Howe, and my noble friend Lord Elton have said. The noble Baroness has raised some interesting issues and I look forward to what the Minister has to say.

Amendment 280C would mean that health visiting services and community mental health visitors were included among the services that may be provided through children's centres. We strongly agree that health visitors should be an integral part of an approach to children's services, particularly for children of a very young age. The decline in health visitor services is very troubling and it is right that the noble Baroness has highlighted this area.

I am not sure whether I heard her give an explanation of Amendment 281, which I understood was in this group. I do not know whether she would like to say anything on it. Having said that, I look forward to the Minister's response.

Baroness Garden of Frognal (Liberal Democrat)

My Lords, I think that I did speak to Amendment 281, which is about the SSCCs having a lead for safeguarding.

Baroness Morgan of Drefelin (Labour)

My Lords, the noble Lord, Lord Elton, gave a good account of how valuable the contribution of a children's centre can be. He might find helpful the proposed new Section 5A(4) in Clause 191, which sets out the purposes of a children's centre. Should any noble Lord wish to visit a children's centre between now and Report, I am sure that we can arrange for such a visit to take place. This will enable noble Lords to see the kind of work that goes on in children's centres, although I am sure that many already will have done so.

As to Amendment 280, I agree that many children's centres already work with local providers, offering learning activities to improve parents' employability and running family literacy, language and numeracy programmes. For example, the London Borough of Merton is developing a purpose-built intergenerational centre, bringing together a wide range of partners from the public and third sectors. This will be built around a planned children's centre and is due to open operationally in 2010. The building is located close to two schools and is to offer a base to sustain and develop intergenerational projects. In addition to a day nursery and meeting and interactive areas, there will be a kitchen for joint food preparation activities. I remember debating a few years ago how young people were losing the ability to cook and how difficult that was, so that is a great idea. There will also be space for horticultural activities and, if that were not enough, an adventure playground as well. I am off to Merton.

In Oldham, the lifelong learning service used family learning impact funding to develop its work with parents living in local refuges. The courses are delivered mainly in children's centres—another example of children's centres being the hub of the community—in particularly deprived areas of Oldham. There is so much going on; I do not want to leave anyone out, but we have over 3,000 children's centres around the country now.

On Amendment 280C, the Childcare Act 2006 already places duties on relevant partners—including, the noble Lord, Lord De Mauley, will be interested to know, the primary care trust—to work together with the local authority to provide better integrated services relevant to young children, parents or prospective parents. That will, of course, include health visiting.

Clause 191, the noble Baroness, Lady Howe, will be pleased to hear, will require partners to consider whether those services that include health visiting and community mental health services should be provided through a children's centre. We are developing statutory guidance, as noble Lords will not be surprised to hear, for local authorities and primary care trusts on how to consider which services to deliver through children's centres, because they are such a wonderful opportunity. In both cases, we think that it is right to leave it to local partners to determine where to locate these services so that they best meet the needs of local children and their families, but one cannot imagine a better candidate than the children's centre.

On Amendment 2,081—sorry, on Amendment 281; please let us not have Amendment 2,081. I do not think that I could deal with that.

Lord Young of Norwood Green (Labour)

It just feels like it.

Baroness Morgan of Drefelin (Labour)

With regard to the department's guidance on children's centre governance— an important issue, as the noble Baroness, Lady Howe, has said—this practice already reflects our expectation that centre managers, in conjunction with the local authority, should have in place a lead person to ensure that every member of staff is competent in their knowledge of child protection. We will use future statutory guidance to remind local authorities that each centre should have a designated lead on safeguarding. We have also asked Ofsted to pilot arrangements for inspecting children's centres where safeguarding will be a key part of the inspection and will limit the overall judgment of the quality of the leadership and the management of the centre.

I hope that this will offer the kind of reassurance that the noble Baroness is looking for. As I have said, though, I am always in dialogue mode.

Lord Elton (Conservative)

My Lords, the Minister said that every person working in a child centre should be up to strength on child protection. At this point, we need to remember that there is a great danger in this field that people will be prevented from giving the comfort that children need when they are hurt, frightened or lonely. This is a big issue; if you cannot give a hug to a child without being thought to be a paedophile, the child suffers, as does the adult. This is proliferating around the country. It may be unnecessary and it may not flow from statute, but it is certainly a reality. I hope that the department and the Minister will be addressing this and will be able to tell us something about it later on, whether in debate on this Bill or otherwise. This is something that we neglect at our peril.

Baroness Morgan of Drefelin (Labour)

The point that the noble Lord touches on is a challenging one. It is important for all people who work with young children—I think that the noble Lord is concerned particularly about settings involving young children, because there you are more likely to find a child who trips and needs a hug when they get up, and so on—that we get the training and support right for staff who work in these settings. That is why our department has a children's workforce strategy looking at these exact questions: what are the judgments that staff need to make and the competencies that they need to have in the various settings in which they work? What is the core knowledge about information sharing and so on that all people who work with children need to have? I would be happy to give the noble Lord more information about that.

Lord Elton (Conservative)

My worry is not information sharing but physical contact—the ability to pick up a child who has grazed their knee, to put them on your own knee or whatever. This is not just in child centres; it is in schools and throughout society. Matt of the Daily Telegraph, who so often puts his finger on the pulse, had a cartoon the other day of a child at his 18th birthday party being congratulated on having finished being a boy and instead becoming a suspected paedophile. It is a horrible situation; there are times now when one cannot express one's compassion without at the back of one's mind being afraid of being labelled as having some other motive. That is much more general than we are ready to acknowledge.

Baroness Morgan of Drefelin (Labour)

With regard to the specifics that we are talking about, in children's centres, I support the noble Lord in raising those concerns in the way that he has. We had a Question a while ago about music teachers—the House was concerned that they should be able to lay a hand on a pupil's shoulder in order to guide them—and I was able to be clear that nothing should prevent a teacher from appropriately touching a pupil. We need to support teachers and people who work in children's centres to do that. We would expect the member of staff who was the safeguarding lead to provide exactly that kind of advice and guidance to the team in a children's centre.

Baroness Garden of Frognal (Liberal Democrat)

I thank the Minister for her reply and welcome her reassurances on the greater integration of the services—including the health services, as the noble Baroness, Lady Howe, has set out—and the importance of involving parents. I also welcome her acceptance of Amendment 281 and share her relief that it is not Amendment 2,081. This would have been a rather longer Session had it been so.

I also thank the noble Lord, Lord Elton, for his words—the "golden chain" of parenting is a wonderful concept—and for raising his concerns about the role of adults and children. There was a sort of subtext to the first amendment suggesting that, if parents and children were all within the context of a children's centre, it might be easier for both adults and children to develop proper relationships that they were comfortable and confident with in an appropriate surrounding.

I also thank the noble Lord, Lord De Mauley, for his support for additional health visitors. I am slightly concerned because I understand that the Conservatives have plans to pay for extra health visitors by cutting outreach workers in children's centres. Outreach workers play a vital role in this and we would like to see additional health visitors without the cuts there.

I thank all those who have contributed to this debate and I beg leave to withdraw the amendment.

Amendment 280 withdrawn.

Amendment 280ZA

Moved by Baroness Howe of Idlicote

280ZA: Clause 191, page 111, leave out lines 16 to 22 and insert—

"(1) English local authorities must make arrangement to ensure that children's centres have governing bodies.

(2) Such governing bodies must establish a parents' forum.

(3) Regulations may impose additional obligations and confer powers on any such governing body.

(4) Regulations may also make provision about the staffing, organisation and operation of children's centres."

Baroness Howe of Idlicote (Crossbench)

My Lords, I thank the Minister and the Bill team for the helpful discussions that one had towards the end of the vacation, as I suppose we could call it, and for their subsequent helpful correspondence. I also declare an interest as president of the National Governors' Association. We have not heard a great deal so far on governors, but maybe they are about to come into their own.

The background to all this goes back as far as February 2000. Following the death of Victoria Climbié and the subsequent report by the noble Lord, Lord Laming, the Government set out their intention to reform the provision of children's services. At the time, the Children's Minister, Margaret Hodge, said:

"We want to give parents and families greater support. Integrated teams of professionals working in and around children's centres and schools will bring services more directly to families".

Children's families were certainly a central part of the Government's response and there has been much successful work—we have discussed some already this evening—in such centres. At the National Conference for Sure Start Children's Centre Leaders in March 2008, Beverley Hughes, the Minister of State for Children, Young People and Families, said that,

"a Centre can build pride and confidence in a deprived neighbourhood, with potential to act as a base for all kinds of additional activities to benefit the whole community ... links with local primaries are clearly particularly crucial; the stronger these are, the more likely it is that you will be able to help the children in your Centre to make a successful transition when it is time for them to start school".

That came up in the previous set of amendments, as your Lordships know.

The Bill seeks to embed this success by placing such centres on a more secure footing. Indeed, the Government acknowledge that such centres might have local governance arrangements at some unspecified point in the future. I have to admit that that side of it continues to puzzle me: it would be much more sensible to set up the arrangements and bring them into force at an appropriate time—but at least to have them in the Bill.

My amendment would make that aspiration a reality. It would remove the suggestion in the Bill that local authorities "may" create governing bodies for children's centres and replace the option with a requirement. There are four points. Proposed new subsection (1) would make it a requirement for local authorities to create governing bodies to have responsibility for children's centres. Proposed new subsection (2) would require those governing bodies to establish parents' forums. Proposed new subsection (3) would allow governing bodies to be given additional powers and obligations via secondary legislation. Proposed new subsection (4) would allow arrangements for the staffing, organisation and operation of children's centres to be changed by secondary legislation.

The rationale for all this is that many children's centres are collocated on school sites, and the intention is that the majority of centres will be collocated as the programme is developed. Children's centres have very close relationships with neighbouring schools. Currently, such centres are funded and co-ordinated via the local authority. The local children's trust has a co-ordinating role for the centres, with strategic priorities being set by the trust.

The vast majority of school governors support this form of provision, but many are concerned about the poor governance of children's centres and the loosely defined responsibilities and funding in place in many areas.

The entire thrust of Every Child Matters policy has been, and is, that services should be delivered and co-ordinated as close to families as possible. The advisory model proposed in the Bill gives those local families no real power to tailor such services to local need. Local governance, following strategic priorities set by the local children's trust, would give local people a real input into these services.

There is an additional point: schools with specific funding routes and accountabilities are being asked to work with children's centres and, in so doing, are taking on serious responsibilities. These schools and the governing bodies within them find themselves working with management arrangements and structures that are very different from those of the school.

School governing bodies attempting to develop partnership working with children's centres have been frustrated by the process. One governing body described running into "a wall of bureaucracy" when it attempted to work with a children's centre. Another complained that decision-making was distant and remote, when the rationale for the programme stresses the importance of neighbourhood teams.

One answer to a questionnaire on this issue sent by the NGA to governors illustrates the case. The question was what issues of concern governors felt had yet to be resolved. There came the answer:

"We feel we need clear terms of reference that set out what the local authority, the Partnership, the children's centre advisory board (still to be set up)"—

incidentally, how many of them have been set up where there are children's centres? That is one of the issues. Perhaps the Minister can give me answer—

"and the Management of the centre do, and are responsible for, in relation to children's centres".

The second question was:

"Do we need a set of Standard Operating Procedures to cover site/pedagogical relationships between Children's Centres & Schools?".

The answer was:

"We feel we do not need a set of SOPs, because we would then be interfering with the management of the centre and that would not be an advisory capacity. Any more direction would make us responsible without the authority for the finance".

The clear conclusion of most of the NGA responses to the questionnaire, when members were asked to comment, was that clear governance—possibly joint governance with the governing body of a partner school—would offer the best solution for children's centres. Any such governing body would need a mechanism to consult families, which is why the NGA supports the formation of parents' forums for these centres. Local governing bodies for children's centres would deal with these problems and be in line with the Government's wish to focus children's services at the neighbourhood level. Local governing bodies for children's centres make even more sense when children's centres and schools are collocated. Common governance arrangements would surely make strategic planning and local consultation simpler and more effective.

There is no timescale for the amendments, as I said earlier, but once the legal requirement—the "must" rather than the "may"—is in place, it would be for the Government to consult on when such arrangements would come into focus. I hope that the Minister will be able to give rather more assurance to the NGA and those supporting this approach that the Government will take account of this. I beg to move.

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, my name and that of my noble friend Lady Walmsley are attached to Amendments 280A and 280B, but I assume that Amendment 280ZA has superseded them, since one would pre-empt the other and Amendment 280ZA is much more satisfactory. Perhaps I may say from these Benches how much we support all that the noble Baroness, Lady Howe, has said. She is absolutely correct that what is wanted is a clear, consistent set of rules, that the sensible thing is to have a proper governing body rather than just an advisory board, that the voice of the parents should be heard very clearly and that, therefore, within that governing body there should be established something equivalent to a parents' forum.

Lord de Mauley (Conservative)

My Lords, the noble Baroness, Lady Howe, and the noble Baroness, Lady Sharp, have raised some very interesting issues. What are the Government's intentions with regard to the regulation-making powers contained in new Section 5B of the Childcare Act? When might we reasonably expect to see draft regulations on this topic? On the assumption that that is not going to be before Report, can the Minister explain how she expects the centres to be governed, including how independent that governance will be? We think that it is very important for parents to be involved in children's development and education. It will be interesting to hear what the Minister thinks of the amendment and its reference to the parents' forum concept.

Baroness Morgan of Drefelin (Labour)

I thank the noble Baroness, Lady Howe, for a very full and interesting account of the questions around governance and children's centres. I hope that I can offer her some reassurance. We are very committed to some pretty similar aspirations, but we do not necessarily agree on the way. I am not sure, having just looked behind me, whether the noble Baroness is going to be pleased with what I have to say, but I shall do my best.

I agree—and I am keen to put on record—on the benefits of effective governance in children's centres. We want parents and prospective parents to feel close to the services that centres deliver. More than that, we want them to know that their views are listened to and valued and that the services are designed around their needs.

The proposals to establish advisory boards for children's centres contained in this legislation recognise that children's centres will continue to grow and evolve, and that at some point in the future, for all the reasons that the noble Baroness set out, they may require governing bodies in their own right. I believe that our proposals to establish those advisory boards will bring opportunities for local people to influence the services that children's centres provide and encourage accountability of children's centres to local people, but without expecting too much, too soon, of children's centres. That is not by any means to undervalue their potential; many children's centres are still at an early stage of development. Our regulation-making powers, to which the noble Lord, Lord De Mauley, referred, will enable us to introduce governing bodies if, after careful consideration, it seems appropriate.

To be fair, and to be clear with the Committee, we have not yet determined a timescale. There are no firm plans at this stage to introduce statutory governing bodies. I implore the Committee to understand the range of children's centres and of stages of development that they are at. While many children's centres already have parents forums, which play a significant role in shaping services, many centres work closely and sensitively with parents in other ways. While the Bill does nothing to prevent parents forums when centres want them locally, we would not want to impose such forums on all centres, as this might disrupt other existing, successful ways of consulting parents.

Finally, I am happy to assure the noble Baroness that new Section 5C will require local authorities to include people representing the interests of parents in the local authority's area as members of advisory boards. That is the clear connection for which the noble Baroness is looking. In addition, new Section 5D will require local authorities to consult before opening a children's centre, making significant changes to services provided through children's centres, or before closing a centre. Our statutory guidance will stress that local authorities should ensure that they consult parents in these circumstances. That is absolutely right. I hope that, with those reassurances, the noble Baroness will consider withdrawing her amendments.

Baroness Howe of Idlicote (Crossbench)

Before I make my final comments, can the Minister address the question that I asked about the children's centres that are set up already? How many of them have the advisory boards?

Baroness Morgan of Drefelin (Labour)

I am not sure that I can. However, only a few weeks ago we saw the 3,000th children's centre opening. Of course, that is a huge achievement in services for children of pre-school years. I have fantastic inspiration here from the box, which says that I need to write to the noble Baroness on that question—so it was really worth waiting for. With the indulgence of the Committee, I had better sit down.

Baroness Howe of Idlicote (Crossbench)

My Lords, I am most grateful to the noble Baroness for the assurance that she will write to me. The very fact that there are 3,000 centres in existence is a great tribute, but I cannot say that I am other than disappointed at what I have been told. These centres are not only crucially important but really quite large bodies, which will need very professional and organised governing bodies, or the equivalent. The extent to which the situation has been left, literally, in limbo, with nobody knowing how it is going to develop, is going to be of concern to everybody.

I cannot guarantee that I will not come back to this at Report, but I am grateful for the help of the team and the Minister. I am equally grateful to the noble Baroness, Lady Sharp, for her support, and to the noble Lord, Lord De Mauley. I hope that, between us, we will all keep this issue in mind and come back to it on Report. I beg leave to withdraw the amendment.

Amendment 280ZA withdrawn.

Amendments 280A to 280C not moved.

Clause 191 agreed.

Clause 192 agreed.

Clause 193 : Children's centres: safeguarding children

Amendment 281 not moved.

Clause 193 agreed.

Clause 194 agreed.

Clause 195 : Free of charge early years provision: budgetary framework: England

Amendment 281A

Moved by Baroness Walmsley

281A: Clause 195, page 118, line 4, at end insert "including the protection of centres of excellence"

Baroness Walmsley (Liberal Democrat)

Clause 195 sets out the budgetary framework for the provision of early years education for young children in England. An enormous number of regulations is referred to in this clause. The concern that this amendment seeks to probe is how these regulations will ensure that local authorities use their new powers to fund early-years providers in a way which safeguards centres of excellence. There are many extremely good providers of early-years education. Local authorities that have them in their areas know who they are. Many of them are maintained nurseries, headed up by highly qualified, specialist early-years teachers. Some of them are run by the voluntary sector and some of them are private.

We believe that quality early-years provision can be delivered only when the staff are well trained to understand how children's brains and personalities develop and how to respond to them when they reach each stage of development. There has been much debate about this in the press in the past week, particularly since the Cambridge primary review was published. I believe that education that takes account of child development and how children learn best is what is needed to help children fulfil their potential and avoid turning them off education for good. But this expertise comes at a price; my concern is that those settings that have the vision to employ teachers with their knowledge and expertise are not disadvantaged by the new arrangements. I hope that the Minister can reassure me that local authorities will be able to ensure that these centres of excellence do not suffer under Clause 195. I beg to move.

Lord Young of Norwood Green (Labour)

My Lords, we want to see a level playing field and to create a fairer system of distributing early years funding across all providers by improving the fairness and transparency in how that funding is allocated to providers who deliver the free entitlement. Funding should be based, primarily, on participation rates and not the number of places available. That will enable additional funding to be targeted at the most disadvantaged children.

A presumption against the closure of maintained nursery schools is already clearly set out in statutory guidance. Maintained nursery schools are required by law to have a head teacher, and we have stated clearly in guidance that this cost should be reflected in the new funding arrangements, meaning that they are still likely to be funded at a much higher level than any other early years setting. I noted carefully the point that the noble Baroness, Lady Walmsley, made about the centres of excellence. We do not have a legal definition for those centres, but in listening I understood the point that she made and, indeed, I share her view about the importance of child development.

Clearly, the quality of staff and settings are key drivers for improving children's outcomes and narrowing attainment gaps. That is why we want to encourage local authorities to incentivise and reward maintained, private, voluntary and independent providers—I stress this—for quality provision. We feel it is right that settings with a higher quality of staff should attract more funding, but not that some settings should be given high levels of ongoing financial protection when they could be supported to make reasonable efficiency savings, thereby enabling redirected funding to reach many more children.

I hope this gives further assurances that the introduction of this clause is not a threat to the future of maintained nursery schools, or of any other high-quality provision, but that it is, rather, designed to support quality improvement across all early-years settings. I trust that, in the light of those assurances, the noble Baroness would feel capable of withdrawing the amendment.

Baroness Walmsley (Liberal Democrat)

I thank the Minister for his reassurances, and I am particularly reassured by what he said about the extra cost of employing a fully-qualified head teacher. Also, he said that the funding will be based on participation rates, which gives me great comfort. Because parents know a good thing when they see it, the centres of excellence will, I suspect, be the most highly subscribed and so be able to stay open. With that, I beg leave to withdraw the amendment.

Amendment 281A withdrawn.

Clause 195 agreed.

Clause 196 agreed.

Schedule 13 agreed.

Clause 197 : Power to require LEAs in England to obtain advisory services

Amendment 282

Moved by Baroness Sharp of Guildford

282: Clause 197, page 119, line 2, leave out "the Secretary of State" and insert "Ofsted"

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, in moving Amendment 282 I shall also speak to Amendment 283. With these two amendments, we move onto the next part of the Bill, which is about schools. Chapter 1 of Part 10 concerns the intervention by the Secretary of State in local education authorities when a large number of their schools are underperforming. The purpose of this amendment is, first, to ensure that where the Secretary of State intervenes to take over the education services of a local authority—because it is running a disproportionate number of low-performing schools—the judgment on whether a school is low-performing is not the peremptory one of the National Challenge, based on raw performance data, but the more considered judgment of Ofsted, which looks holistically at the school's overall performance. Ofsted also takes into account the population it serves and the difficulties it may face in serving a particularly disadvantaged or, perhaps, an ethnically and linguistically diverse population.

The second purpose is, similarly, that the question of whether a local authority has a disproportionate number of such schools is, again, to be a matter for Ofsted to decide in its local area agreement, rather than for the Secretary of State to decide and step in. I am sure that the Minister will tell us that the Secretary of State would not step in without consulting Ofsted, just as it happened with Haringey and Baby P. Nevertheless, if that is the case, why should we not have Ofsted instead of the Secretary of State in the Bill?

Baroness Howe of Idlicote (Crossbench)

My Lords, I certainly support these amendments, and I very much hope that they will get a favourable response.

Lord Young of Norwood Green (Labour)

My Lords, our intention with Clause 197 is to ensure that all schools and LEAs are aware that we will not accept poor performance in schools. We will ensure that any decision to direct a local education authority to obtain advisory services is supported by robust evidence—such as data on attainment, pupil progression in relation to reasonably expected standards, and standards previously attained by pupils there or at comparable schools—and is not, as suggested, wholly dependent on the Secretary of State simply guessing, without careful assessment, which LEA is underperforming. The noble Baroness, Lady Sharp, asked whether we will provide guidance or criteria to define what we mean by disproportionate. I cannot commit that we will provide a full definition but, following consultation in the revised "schools causing concern" guidance, that consultation will, of course, be extended to Ofsted.

Before a direction is made, representations will be obtained from an LEA, which will need to be able to provide assurances that it has the capacity to secure school improvement. It should be noted that the Secretary of State's direction in these circumstances, and the requirement for the LEA to take advisory services, is a means by which we are offering support in the form of external educational experts to bolster the LEAs ability to support their schools and drive up standards.

These amendments would mean that it is not the role of the Secretary of State but rather the responsibility of the Office for Standards in Education, Children's Services and Skills to judge whether standards of performance at a school are unacceptably low and thus whether an LEA maintains a disproportionate number of poorly performing schools. It is imperative to remember that the Secretary of State, not Ofsted, is responsible for school standards—and that he is accountable to Parliament for them. We think that is what precludes Ofsted from being involved in this process. The Secretary of State sets targets and annually collects the data, and therefore maintains a legitimate overview of standards and of those schools where there is low performance. Given that responsibility, he must have the freedom to make the ultimate decision when he deems that standards in a school or schools are low, and thus whether an LEA has the capacity to secure rapid and sustainable school improvement for the pupils in an area.

I stress that we do not anticipate that the Secretary of State will make this decision in isolation, or that this power will necessarily be used at the first instance. I can give noble Lords the assurance that Ofsted will be consulted where it is deemed necessary. We must remember that our goal here is to ensure that all children have access to a high standard of education, and that they are able to reach their full potential. I would therefore hope that, in the light of those assurances, the noble Baroness, Lady Sharp, will feel capable of withdrawing the amendment.

Baroness Sharp of Guildford (Liberal Democrat)

I am grateful to the Minister for his response. We are not seeking to change the fact that it is in the power of the Secretary of State to intervene; that is in subsection (1), which remains. We are seeking to alter it only through our subsection (2),

"where it appears to the Secretary of State that ... a local education authority",

is maintaining,

"a disproportionate number".

We are saying that who judges whether the number should be disproportionate and whether they are actually underperforming should be a matter for Ofsted.

I come back to the comparison that I made with the Haringey case, where the Secretary of State intervened—somewhat peremptorily—but looked to Ofsted to advise him on that. As the Minister said, he would take account of all those statistics but would look to Ofsted to advise him on those things. The point that I made—if Ofsted is going to be doing it, why not put it into the Bill?—remains. However, the issue is not worth pursuing now, and I beg leave to withdraw the amendment.

Amendment 282 withdrawn.

Amendment 283 not moved.

Clause 197 agreed.

Clause 198 : Powers in relation to schools causing concern: Wales

Debate on whether Clause 198 should stand part of the Bill.

Lord Elton (Conservative)

My Lords, briefly, the Minister will remember my declared interest in the mechanism by which the Welsh Assembly Government are drawn into the Bill. I wish merely to know whether Schedule 14, which is set out by this clause, has its origins in Cardiff or London; and, if it has its origins in London, whether representations were made by Cardiff and whether the Welsh Assembly Government were satisfied with the reply that they got.

Lord Young of Norwood Green (Labour)

My Lords, I am desperately seeking inspiration from my left. There has been consultation with the Welsh, apparently.

Lord Elton (Conservative)

If I hear nothing further, I will assume that the Welsh Assembly Government were satisfied. If they were not, I am sure that they will let me know.

Clause 198 agreed.

Schedule 14 agreed.

House resumed. Committee to begin again not before 8.31 pm.

Committee (9th Day)(Continued)

Baroness Walmsley (Liberal Democrat)

My Lords, I shall speak also to Amendments 286, 288, 288AA, 289 and 290. This group of amendments relates to the clauses about complaints against schools. We on these Benches share the Government's position that wherever possible complaints should be dealt with quickly and effectively at the school level. Such a process should be simple and as non-adversarial as possible. The focus should be on a quick resolution rather than a drawn out bureaucratic process in line with other statutory complaint processes for children. We therefore welcome the provisions that allow for parents and pupils to pursue complaints against a school and, if necessary, refer the matter to the local commissioner. This is significant progress towards implementing Article 12 of the UN Convention on the Rights of the Child in the education system; that is, the right for children to have their views heard.

While we on these Benches believe that it is important that parents and pupils who have a genuine complaint against a school have appropriate channels for obtaining satisfaction, we have considerable reservations about the system proposed by the Government. We do not want this to be a moaners' charter or something that takes up a lot of the time of head teachers of good schools. We have therefore laid Amendment 283B, the effect of which is to prevent the local commissioner substituting his judgment for that of the head teacher unless it relates to a function prescribed in regulations. We would really like to know what is meant by a "prescribed function" and what sort of function it is. It is important that the new system should not be used by very determined parents to have one more try to get what they want. There has been some experience among appeals panels relating to exclusions and admissions that every tier of possible complaint will bring in an additional batch of such complaints.

We need to avoid the danger of the head's ability to maintain good order and discipline being undermined. It is a matter of balance and reasonableness, which I accept is difficult to legislate for, but the test of reasonableness must apply. In other words, the local commissioner should be able to substitute his judgment only if the school's decision or behaviour was unreasonable by the commonly held standards of the profession.

The noble Baroness, Lady Verma, has tabled Amendments 284 and 285, about which we have some concerns. In these amendments, the local commissioner would be prevented from considering complaints about behaviour, the enforcement of school rules, or fixed-term exclusions. While we normally uphold the principle that the judgment of the head teacher should operate in these matters, it is not beyond the bounds of possibility that the head teacher might behave unreasonably in these matters. The noble Baroness's amendments would therefore weaken the right of redress and take away the flexibility of the local commissioner, so we do not support them.

Amendment 286 seeks to include academies in the arrangements for complaints to be heard. It seems wrong, especially as the number of academies grows, that children attending such schools should not have recourse to the local commissioner in the same way as their neighbours do. Why have academies been excluded, and what recourse do parents of academy pupils have if they have a serious complaint against the school?

We will not move Amendment 288, in the light of the Government's Amendment 288ZA about vexatious complaints, which we welcome.

In Amendment 288AA, we address the right of the commissioner in certain circumstances, to be prescribed in future regulations, to extend the hearing of complaints to former pupils. The amendment would restrict this to circumstances in which it is in the public interest to do so. We are concerned that parents who have exercised their right to remove a child may retain an indefinite right to make complaints against their child's former school. Some situations just cannot be resolved to everyone's satisfaction, and we cannot have this sort of thing hanging over the heads of schools indefinitely, so will the Minister indicate what will be in the regulations?

Our Amendment 289 would ensure that when a parent refers a complaint to the local commissioner, he must allow the child the opportunity to comment on the matter. We cannot know about children's experiences or hope to secure their best interests without asking them their views and listening to their perspectives. The amendment would ensure that, where children want to participate, the local commissioner will hear them and use their views to inform both the conduct of the investigation and the forming of their judgments. It would be an essential safeguard to ensure that children have the opportunity to remain engaged rather than risk becoming excluded throughout the local commissioner's investigation. The amendment would not force a child to speak to the local commissioner where the child feels uncomfortable or chooses not to express an opinion. However, it would place a duty on the local commissioner to ask them whether they would like to contribute to the investigation.

Amendment 290 would place a duty on the local commissioner to ensure the provision of an advocate to children and young people who make complaints about a school if they so wish. An advocate is an independent person who assists a young person to make his or her voice heard. Independent advocates have operated in children's social care services since the late 1980s, following revelations of abuse and mistreatment in children's homes. There is growing evidence that advocacy not only improves decision-making processes for children but safeguards their well-being. Advocates can demystify the process, raise the child's understanding of the consequences of their view, help the child to express himself and support local resolutions through processes of arbitration and conciliation. Advocacy can be particularly helpful for disabled children, who face particular barriers to having their voice heard. As Sir William Utting put it in People Like Us: the Report of the Review of the Safeguards for ChildrenLiving Away from Home:

"Children sometimes need someone with whom they can talk through a problem before deciding how best to deal with it".

Those are wise words. I beg to move.

Baroness Verma (Conservative)

My Lords, we are broadly in favour of these clauses and the role which they give the local commissioner. I think most would agree that it is very important to empower parents with due knowledge, understanding and control over what happens to their children at school. We should also acknowledge that it is useful, indeed necessary, to have some fixed process by which complaints can be made and addressed. At the moment, complaints which cannot be satisfied by the governing body of a school go directly to the Secretary of State, which is impractical and unnecessary.

Nevertheless, as we have made clear time and time again, it is crucial that the rights and hard work of teachers are not dismissed. Any complaints system, by its very nature, is bound to be messy. This is even more true of a system which will come into force only when the complaint has risen above the level of the school's governing body. Many factors have to be taken into account and the decision will not always be easy, nor will it always seem fair.

It is therefore important to begin with a system which seems to strike the right balance between the rights of the parents, the rights of the pupil and the rights of the teachers. Teachers must be allowed to exert their authority and should have the power to enforce school rules without constant second-guessing. We on these Benches think it is crucial that our teachers are afforded the professional respect they deserve. To this end, we have tabled Amendment 285, which would mean that any decision taken to enforce the published school rules cannot be taken to the local commissioner and waste his valuable time.

The school rules are there for all to see and, within the context of the school, surely it is right that teachers should be able to take proportionate action to enforce them. Does the Minister accept that we must trust the professionalism and expertise of our teachers to be able to do this? It may be that there are specific instances where a bad decision is made and action needs to be taken by parents. But in those circumstances, is the Minister saying that the only way of taking these specific complaints forward would be through the local commissioner?

Our concern is that without narrowing the remit of complaints, teachers will not be able to impose the discipline which they need in order to get on with their main job of teaching. We accept that there is a balance to be found. Parents and pupils should have the right to complain against improper actions, but teachers must be allowed to impose discipline. We are concerned that without the proviso of being able to enforce the school rules, the Government are attempting to legislate against the professionalism of the many because of the impropriety of a few. Is existing legislation in place to deal with those who abuse the powers given to them to enforce the school rules? For the rest, does she agree that we should extend professional trust to teachers?

In this vein, we have also tabled Amendment 287, which asks that the local commissioner must be satisfied that the complaint is not vexatious before investigating a complaint. We are therefore delighted that the Government have decided to concede this point and include these important words in the Bill. I should like to thank the Bill team for their hard work and effort which saw them coming to see our side of the argument. The National Union of Teachers cited this as a key concern and so welcomes its inclusion in the Bill.

We have tabled Amendment 288C in order to probe the power of the local commissioner to disapply the time limit. Can the Minister give us any examples of when this might be necessary? Furthermore, does this power mean that all records will have to be kept indefinitely just in case the time limit is to be disapplied and a very old complaint reopened? In employment cases—the Minister may correct me if I am wrong—the limit is three minutes—I mean, three months. That is the red wine speaking. Does the Minister feel that a different structure should be in place for school complaints?

We have also tabled Amendment 284, which would restrict further what complaints can go to the local government commissioner. Appeals panels, which hear cases regarding permanent exclusions, already exist. These can overrule decisions made by teachers and do so in a quarter of cases. Half of those pupils are returned to the same school from which they were excluded. That is no way to encourage discipline or to support teachers in their difficult task of securing discipline before they even begin to teach. I should like also to declare my support for Amendment 283B, which was tabled by the noble Baroness, Lady Walmsley. It would be very useful to have appropriate regulations and guidance on these matters in order to ensure clarity for all concerned.

We should be clear that, on the whole, we support the measures in these clauses. Nevertheless, key changes should be made and therefore key questions must be asked in order to make sure that the complaints procedure is effective and, more important, that it achieves the correct balance between the right of parents and pupils to complain and the duty of teachers to be able to enforce discipline without constantly having their professional behaviour called into disrepute.

Lord Elton (Conservative)

My Lords, I endorse what my noble friend has said, particularly about the right of appeal to return to a school. I am very concerned about the high proportion of appeals which are allowed. The Minister can no doubt remember her school days, which are a good deal closer to her than mine are to me, but I have taught since then. When other pupils see a pupil who has rendered their lessons difficult if not impossible to follow because the staff cannot control him or her so their behaviour disrupts the lessons, and they see the same person come back in triumph some days later against the wishes of the teacher, the effect is very poor. It undermines entirely the authority of the teacher and restores the interruptions to the education of the other children. The situation is what it was before.

Lord Lucas (Conservative)

I want to support for the most part my noble friend's amendments. On Amendment 285, concerning the published rules of the school, it is important that any arrangement upholds the school rules, but I do not think it is necessarily fair that a pupil has to be bound by rules that are introduced after they have joined the school. Changes to the dress code in particular may be imposed arbitrarily by the head of the school after a pupil has made the decision to join so that he or she is faced with no choice but to obey that rule. It is reasonable under those circumstances that the right of appeal can be exercised against it because that pupil did not have the choice of avoiding it by going to a different school. I would put a time limit on this and say that school rules cannot be appealed against if they were in force when the pupil applied to join the school, when it would have been the decision of the pupil or his or her parents to accept them.

With regard to discipline, again it is important that this mechanism should not be able to reopen disciplinary decisions. I would not go along with the exact wording of my noble friend's Amendment 284 where it states "relating to" because these problems often involve some kind of disciplinary procedure, although often the nub of the problem is elsewhere, such as the failure of the school to deal, for example, with bullying or recognise a special educational need. So I support the spirit of the amendment, but not the exact wording.

As the Minister is the person to whom these complaints are sent, can she tell us what the two or three most frequent reasons for complaint are?

Baroness Morgan of Drefelin (Labour)

I am interested in the noble Lord's question because I asked it myself. These complaints go to the Secretary of State so I do not see them. I thought I had the answer here, so by the time I reach the end of my remarks, I may be able to help. I will do my best to deal with the points that have been raised.

The noble Lord, Lord Elton, mentioned the effect on the authority of the teacher if a pupil complaint is upheld. The local government officer will uphold the decision only if the school has already acted reasonably. I am sorry, it is not the red wine in my case, but perhaps I am in need of a cup of coffee. I apologise to the Committee. The LGO will uphold the complaint only if the school has acted unreasonably. We cannot accept a situation where a pupil has no right of redress when a school has acted unreasonably. However, we all expect that schools will act reasonably 99.9 per cent of the time. I have attempted an explanation but I am sure noble Lord will come back to me. He is already.

Lord Elton (Conservative)

Perhaps the noble Baroness can seek inspiration as to the proportion of appeals made against exclusion which are carried and the pupils returned. If they are as high as we hear, I am concerned.

Baroness Morgan of Drefelin (Labour)

My Lords, we have that information and I shall furnish the noble Lord with it. I cannot do so at the moment—I shall have to write to him—but I know that information is available.

In setting up the independent complaints service we want to make sure that parents and pupils whose complaints have not been dealt with fairly and properly have an effective route to seek redress. At the same time, we are committed to ensuring that this service will not undermine the authority of schools or place any additional burdens on them. It is a delicate balance to strike.

I am delighted that noble Lords have responded positively to our amendments on vexatious complaints. We do not want to encourage vexatious complaints, about which teaching unions have been concerned, and I am glad that we can be accommodating on that issue.

As to whether or not a school's authority may be undermined, which is the spirit behind Amendments 284 and 285, I emphasise again that what we are doing will not undermine a school's authority. Schools will continue to agree their own behaviour policies and rules, which is absolutely right. They are the best bodies to do this and nothing we are doing will prevent them doing so. However, the service has to be able to consider complaints which relate to school rules. Not all schools apply their rules as they necessarily intended and surely pupils should have some route of redress in those areas. But where those rules and their implementation are reasonable and lawful, as the noble Baroness, Lady Verma, would expect, there would be no expectation that they should be changed. The noble Baroness can be reassured about that. This is not about asking good schools to do anything that they are not already doing; it is about asking all schools to continue to strive to improve, to learn lessons where issues have led to formal complaints, and to go forward in the way we expect.

The noble Baroness, Lady Walmsley, asked about the prescribed functions of the head teacher. We will outline in regulations the functions of the head teacher, including their functions in relation to discipline. The functions for which a head teacher may be the subject of a complaint will be set out in regulations under Clause 199(2). I can reassure noble Lords that before we make these regulations, as you would expect, we will consult with stakeholders—including, importantly, teacher unions and parent representative bodies—on what might be included.

The noble Baroness, Lady Walmsley, was concerned as to whether academies should be included in the service. Order-making powers under Clause 215 will allow us to bring academies into the service in the future. However, there are good reasons for deciding not to include them in the first place. They are schools facing significant issues, and many schools face challenging circumstances. Academies are often the solution for those longstanding problems in disadvantaged areas, and this represents a huge challenge for academy leadership. It would not be helpful to add to this by asking academies to help us to iron out the processes and structures of the service in these early stages, given that academies already have robust complaint procedures through the independent school standards regulations.

If parents are not satisfied with the response to their complaint, it is heard by a panel that must include one person who is independent of the management and running of the school. There are processes there to offer safeguards to those wishing to complain in the context of an academy.

On the question of disapplying normal conditions for the hearing of complaints, with regard to Amendment 288C, the local commissioner has some discretion to hear complaints if they are not made in writing or within the normal 12-month period. Sadly, not all parents are literate and there may be situations due to illness or incapacity where meeting the 12-month deadline might not be possible. I reassure noble Lords that the intention here is not to open the door for long-gone pupils to resurrect grievances from their school days. The testing phase will consider the circumstances when the commissioner might need to use that discretion. Again, we will work with teaching unions and others to ensure that we are all clear on the criteria that the service might use.

On Amendment 288AA, I hope I can reassure noble Lords that the intention behind Clause 200(6) is to give some limited flexibility. It is conceivable that a pupil may have a valid complaint about a school's handling of their exam results but would be prevented from complaining because they have since left. We will need to continue consulting with stakeholders and will of course draw on the findings of the testing phase. None the less, I am sure that Parliament, in the shape of the Committee, will have an opportunity to scrutinise these as regulations too.

On Amendments 289 and 290, regarding the involvement of pupils, let us remember that this is a service for pupils as well as for parents. I reassure noble Lords that, as a matter of course, the service will involve pupils if it feels that they are of an age and understanding to be able to voice their opinion. I assure noble Lords that there is nothing in the Bill that restricts the use of an advocate where the service feels it appropriate; for example, in the scenarios that the noble Baroness mentioned, such as for a child with disabilities. It is important to note, though, that advocacy may not be appropriate in every single case. If the legislation provided that the service must provide advocacy, the service would have to do so in every case, regardless of whether or not that was appropriate.

In his current role, the commissioner has staff specifically trained in dealing with complaints from young people. These are considered and dealt with quickly. He also issues guidance aimed at young people that is easily available so that they are aware of what is available to them. We expect him to continue to do so with complaints about school issues.

With these assurances, I hope that noble Lords will consider not pressing their amendments.

Lord Elton (Conservative)

I have a small suggestion to make, if it is not disruptive to the flow of the argument, about enforcing the school rules. There is overwhelming evidence that schools in which the pupils contribute to and agree to the school rules when they are formulated are much more orderly and better conducted than those where they do not. Would it be possible to introduce a convention or guidance that stipulates that, where a case involves rules in a school which have been agreed and contributed to by the pupils, there should be a presumption in favour of the enforcement of those rules rather more strongly on other occasions? That is something to think about. I have seen the difference that it makes. I assure the Minister that anything we can do to encourage the practice will be fruitful.

Baroness Morgan of Drefelin (Labour)

As the noble Lord suggests, there is a strong body of evidence to support his remarks. Home-school agreements, too, have been a very effective way of ensuring that young people understand and adhere to the rules.

I am aware that I did not respond to the question of the noble Lord, Lord Lucas, about the two or three most frequent complaints. I am advised that they are: SEN provision not being fulfilled—no surprise there, I am sure—about which there are approximately 900 complaints per year; pupils being bullied by other pupils, at approximately 120 complaints per year; and fixed-term exclusions not being applied fairly, which again is no surprise, at approximately 200 complaints per year.

Baroness Walmsley (Liberal Democrat)

My Lords, I am grateful to all those who have taken part in this short debate. I must say to the noble Lord, Lord Elton, that he took the words right out of my mouth: I was going to make that very point about consultation with pupils; indeed, I seem to recall that, about two or three years ago, a Bill went through your Lordships' House wherein we managed to persuade the Government that pupils must be consulted on a school's behaviour policy. That went into a Bill, did it not?

Baroness Morgan of Drefelin (Labour)

I hate to disappoint the noble Baroness, but I think that it was only a year ago.

Baroness Walmsley (Liberal Democrat)

Oh, dear, it seems like three years ago. That is in legislation already, and it is very good practice. All the best schools consult their pupils and bring them along with the management team.

I am most grateful to the Minister for telling us what will happen with academies. I understand her point that it is perhaps a little early to bring some of the academies into the process. She is quite right that they are often dealing with the most vulnerable children with the most difficult needs. As long as some kind of complaints process is in place at the moment, we would very much like to see the academies eventually brought into the main system when appropriate.

On what happens when a pupil has left, the Minister gave an example which I admit had not occurred to me; that is, when it relates to the pupil's exams and they have left the school. We look forward to the opportunity to scrutinise the regulations on that.

I was grateful for the Minister's confirmation that pupils would be involved if they made a complaint, that they would be given all the information that their parents would be given by the commissioner and that the commissioner would be able to provide an advocate where he felt it appropriate. It is important that the resources are available to provide that advocate, especially for children who find it difficult to make their views known. It is a service which does a lot of good. I beg leave to withdraw the amendment.

Amendment 283B withdrawn.

Amendments 284 to 286 not moved.

Clause 199 agreed.

Clause 200 : Power of Local Commissioner to investigate complaint

Amendments 287 and 288 not moved.

Amendment 288ZA

Moved by Baroness Morgan of Drefelin

288ZA: Clause 200, page 121, line 5, at end insert "; or

(b) if satisfied that the complaint is vexatious."

Amendment 288ZA agreed.

Amendment 288A had been withdrawn from the Marshalled List.

Amendment 288AA not moved.

Amendment 288B had been withdrawn from the Marshalled List.

Clause 200, as amended, agreed.

Clause 201 : Time-limit etc for making complaint

Amendment 288C not moved.

Clause 201 agreed.

Clause 202 : Procedure in respect of investigations

Amendment 289 not moved.

Clause 202 agreed.

Clause 203 : Investigations: further provisions

Amendment 290 not moved.

Clause 203 agreed.

Clauses 204 to 217 agreed.

Clause 218 : Interim statements

Amendment 291

Moved by Baroness Sharp of Guildford

291: Clause 218, page 131, line 21, at end insert—

"(5) This section applies if—

(a) the quality of education provided in the school for children with special educational needs has been inspected by an appropriately qualified person who has received training in inspection provision for children with special educational needs; and

(b) the quality of education provision provided in the school for children with special educational needs is reported to be of at least equivalent quality to the education provided in the school for all pupils.

(6) The Secretary of State shall issue regulations specifying how a person may be considered to be appropriately qualified for the purposes of subsection (5)(a)."

Baroness Sharp of Guildford (Liberal Democrat)

I shall speak also to Amendment 292. We are proposing these amendments on behalf of the Special Education Consortium and the National Deaf Children's Society. Schools that get a good or excellent rating from Ofsted may have their normal Ofsted inspection put off for at least a year and have a "quick check" or a "health check". These two bodies are very anxious to ensure that schools do not get the health check without their special needs facilities being inspected by somebody who is qualified to inspect them. There is some evidence to show that schools that have been rated "good" or "excellent" sometimes have facilities for children with special educational needs that are not up to scratch, and they are very anxious to ensure that those schools are not given special treatment and allowed to put off their inspection without the authorities being absolutely clear that they are serving the more disadvantaged pupils and making sure that facilities for those pupils are up to scratch. I beg to move.

Baroness Verma (Conservative)

My Lords, time and again, the theme of provision for those with special educational needs has been cited as an area that needs closer attention to detail in this Bill. We have heard many learned and erudite speeches and debates on the topic. The Government have also taken many amendments on provision for special educational needs or disabled people away to have a think and, one hopes, to come back on Report with something structured and workable. We want to ensure that no one is allowed to fall through the gaps or be left out in the cold. Bearing that in mind, I hope that the Minister will consider Amendment 291 very carefully.

Lord Young of Norwood Green (Labour)

My Lords, as I am sure the noble Baroness will appreciate, some time has passed since this amendment was tabled, and there have been a number of significant developments since then which are relevant to it. First, the new school inspection arrangements, with their strengthened focus on pupils with special educational needs and disabilities, are being implemented in schools across the country, starting this term. Secondly, the Lamb inquiry has, at the request of the Secretary of State, published an interim report addressing the specific issue of whether legislative measures are necessary to strengthen these arrangements in respect of pupils with special educational needs and disabilities. That report welcomed the new framework, but recommended that it should be underpinned by a duty on Ofsted to report on special educational needs and disabilities as part of school inspection. The Government have accepted this, and are committed to bringing forward this measure at the earliest opportunity. These developments provide an important context for considering this amendment.

The noble Baroness rightly focuses on training of inspectors, an issue which Brian Lamb also considered in his August report. He recommended that training arrangements should indeed be strengthened, but did not conclude that legislation was needed to achieve this. We agree with that position, although we warmly support the noble Baroness's view on the importance of the training.

Inspectors' expertise is routinely updated through a wide-ranging programme of professional development that regularly involves special educational needs and disability, while Ofsted is further enhancing its training arrangements so that school inspectors are provided with training on this important matter annually. It will respond formally following the publication of the final report of the Lamb inquiry, which is expected shortly.

The noble Baroness, Lady Sharp, asked whether an interim statement should be issued where pupils with special educational needs and disabilities are judged not to be learning and progressing as well as pupils more generally. I believe that I can reassure the noble Baroness on this important matter. Under Ofsted's new arrangements, a school will only be eligible for an interim statement—and a longer interval between inspections—where its previous inspection report shows the learning and progress of pupils with special educational needs and disabilities to be either "good" or "outstanding". Any school which is "satisfactory" or "inadequate" in that respect will continue to be inspected within a three-year period. I hope that we cannot have a situation where a school might be assessed as generally good but where the SEN portion of that school would be only satisfactory. This provision would not allow it to have a longer period, so I hope that we have reassured your Lordships in that respect.

On Amendment 292, proposing that academies should also receive the report, local authorities have no responsibilities in respect of academies so it would be inappropriate to impose a legal obligation for an academy's reports to be sent to the local authority. However, I can reassure the noble Baroness that because each academy must have at least one local authority representative on its governing body, and the reports will be placed in the public domain, local authorities will have access to those reports. In the light of these reassurances, I hope that the noble Baroness will feel capable of withdrawing the amendment.

Baroness Sharp of Guildford (Liberal Democrat)

I thank the Minister very much; that was a totally adequate and very satisfactory reply. I am extremely grateful to him for giving me all the reassurance that we need on this issue. As he says, time has moved on; we have had the interim report from Brian Lamb and are expecting the final report. As the Minister rightly points out, the new inspection regime has been introduced and we are now getting far more emphasis on special educational needs. In the light of all his reassurances, I beg leave to withdraw the amendment.

Amendment 291 withdrawn.

Amendment 292 not moved.

Clause 218 agreed.

Clauses 219 and 220 agreed.

Schedule 15 agreed.

Clauses 221 to 234 agreed.

Clause 235 : Power of members of staff to search pupils for prohibited items: England

Amendment 293

Moved by Lord De Mauley

293: Clause 235, page 139, line 36, after "possessions;" insert—

"( ) has reasonable grounds for suspecting that a pupil at the school may have an item that, in the judgement of the member of staff, may present harm to other pupils, staff or teachers;"

Lord de Mauley (Conservative)

My Lords, there are a great many issues in this group of amendments, and I hope that we shall manage to address them all fully. This section of the Bill expands the powers to search that are laid out in the Violent Crime Reduction Act 2006. It specifies a further list of items that can be searched for in a school or further education college. That list comprises alcohol, illegal drugs and property suspected of being stolen.

Our Amendments 295 and 303, and Amendment 297, tabled in the name of my noble friend Lord Lucas, call into question the validity of having a very specific list of items for which these search powers can be used. We argue instead that teachers should be able to use the powers to search for anything that is against the published school or college rules. Surely every school has a set of rules; as long as they are published and easily accessible, there seems little excuse for pupils not to be aware of them. Taking that into account, does the Minister not agree that teachers should have the power to enforce those rules in order to maintain discipline in the classroom, and so be able to concentrate more fully on teaching?

It may be that the item causing disruption is not on the list in the Bill, and may not be dangerous. However, it may be something that is against the school rules and causing disruption or disturbance to the point of having a detrimental effect on teaching. The examples that spring to mind may be things like pornography, or something merely disruptive such as the latest craze of new toy.

The first reason for the amendment, therefore, is that we want to allow the maximum possible scope for teachers to be able to use their discretion to enforce discipline and create an environment suitable for teaching and learning. The second reason is one that we have brought up time and again: we must trust the professionalism of our teachers to use these powers. I am not saying that we feel that there should be a free power of search without consent for any item at all but, if there is a school rule that bans an item, then it is surely right to trust the teacher to search for it. Otherwise, what is the strength behind such rules? Pupils will know that their rights help to protect them against even having to obey the rules. What sort of an environment does this create in the classroom?

Our Amendments 293 and 296 offer a slightly different approach. They expand the search powers to include any item that could be constituted as risking imminent harm to the pupil or any other person. These amendments have been suggested by the National Union of Teachers and, on Amendment 296, we have also been given the support of the noble Baroness, Lady Walmsley. We have tabled these amendments as another option for defining when the powers of search without consent can be used. We feel that teachers should be able to exercise their own judgment about when they feel that it is advisable to search a pupil and, here, we suggest that this would be when the item in question poses a threat of imminent harm.

The Minister may say that this power is too flexible and vague. Well, yes, it is flexible, because we feel that we should be able to trust to the professional discretion of the teacher to know when the powers can be used. As for "too vague", it would be perfectly possible to provide guidance and information about what can and cannot be searched for. This does not, however, have to be laid down in primary legislation. Such guidance may not cover every instance, but surely it would be more appropriate than an inflexible list of prohibitions, which would prevent teachers searching for something they consider to be a risk of imminent harm. Teachers would not have to be left unguided, but they could be left to use their own judgment.

I extend my thanks to the Minister and her Bill team for all the effort that they have put in to listening to our concerns over this matter. We welcome the fact that they have attempted to answer our worries by tabling a group of amendments that allow the list of items that can be searched for to be extended by regulation, but we feel that this does not go far enough. It does indeed increase the flexibility of the list, but unfortunately does not answer the main principle of our concern, which is that we should trust the professionalism of teachers. Any power to search should reflect this, and teachers' responsibility for the health, safety and welfare of pupils under their supervision and care.

Our Amendment 294 would ensure that CCTV footage may be used by members of staff to ascertain whether there are reasonable grounds to use the search powers. I am assured that the Minister may be able to give us the reassurances that we need on this count, and I look forward to her reply.

A second issue, which has also been raised by the National Union of Teachers, regards who should have to prove that the use of the powers of confiscation was lawful. We have tabled Amendment 305 because, currently, the burden of proof as to whether a confiscation is lawful or not lies with the teacher and not the pupil. Amendment 305 would alter the Education and Inspections Act 2006 so that a person who "seizes, retains or disposes" is assumed to have been acting lawfully until it is proved otherwise. The National Union of Teachers is concerned that, if the burden of proof is on the teacher to prove himself or herself innocent, they will be unwilling to use these disciplinary powers. This may have the knock-on effect of reducing discipline in schools still further, and taking away from valuable teaching time. It is crucial to an effective school that teachers are able promptly to search pupils for forbidden items without fear of legal investigations.

In another place, the Human Rights Act was cited as a reason for the burden of proof being laid at the door of the teacher. Seizing, retaining and disposing of a pupil's property, it was suggested, is an infringement of that pupil's rights. Therefore, it was said:

"Members would agree that there must remain an overriding obligation on school staff to act lawfully and reasonably".—[Official Report, Commons, Apprenticeships, Skills, Children and Learning Bill Committee, 26/03/09; col. 847.]

This is obvious. Everyone is in agreement that confiscations should be lawful; the issue at dispute is on whom the burden of proof should rest. According to the National Union of Teachers, it is clear that,

"the law should not assume that teachers who confiscate have done wrong until they prove that they have not".

I look forward to the Minister's response on that.

I would also be interested to hear the Minister's response to the amendments tabled by my noble friend Lord Lucas, particularly relating to the fact that a person who seizes controlled drugs or stolen articles should have a direct and clear choice about whether these should be handed to a police officer or be disposed of. Amendment 302C would allow teachers clear discretion; items may be handed over to the police but do not have to be. It seems to me that there are important considerations to be taken into account here. Do the police need to be involved in every incident of this kind at a school? Is this the best use of their time? I await the Minister's words about that amendment and about the Minister's own amendments on this.

Many of the amendments tabled by the noble Baroness, Lady Walmsley, in this group address teacher training with regard to being able to carry out effective and legal searches. I can see the reasoning behind these amendments. They may mean that teachers feel better equipped to carry out searches and that parents feel reassured that teachers are operating firmly within the legal guidelines. It would certainly be useful, for example, to have a clear idea of what was meant by each of the other items on the Government's list. Nevertheless, the National Union of Teachers has expressed to us concerns that this undermines the principle that teachers can be trusted to use their own judgment in these matters. The legislation should be there to protect teachers who exercise their authority to discipline pupils, not to make them use these powers in a different way.

I anticipate a healthy debate on these matters. I look forward to hearing all contributions and the Minister's response.

Baroness Walmsley (Liberal Democrat)

My Lords, I rise to speak to Amendments 297ZA, 300, 301, 302 and 303ZA, in my name. The issue of searching children and their property is a difficult one. The Government insist that Sir Alan Steer recommended the extension of the existing powers. However, I recall the Minister telling us in this House when those powers were first introduced that no further powers would be sought until Sir Alan had reviewed the operation of the existing powers and published a report. I do not recall seeing such a report and I do not believe that a private report to the Government is good enough. However, we have to deal with what the Government are proposing today, wherever it came from, and it has to be admitted that they have already made some sensible concessions.

My concerns expressed in Amendment 297ZA relate to the safety of the teacher where he or she is doing a search without consent. The pupils may be objecting violently, so it is important for both the teacher's sake and the pupil that the teacher has appropriate training in these situations. Anger can be defused with proper management. Attitude and body language can all add up to a situation that is either carried through without a problem or a situation that blows up into something uncontrolled.

In addition, as my amendment says, a teacher must know what he is looking for, if we are allowing him to look for drugs; otherwise, he may not know crack from a sherbet fizz. Although some teachers may be familiar with today's drugs, I suspect that most are not. It is really important to their credibility that they know what they are doing. There will be nothing worse for a teacher's reputation in the school than being laughed at by the pupils if he confiscates something quite innocuous. Amendment 303ZA is exactly the same thing but relates, in Clause 237, to teachers in colleges of further or higher education. I would encourage teachers not to carry out such searches unless their CPD had properly equipped them to do so.

We on these Benches wish to ensure that no teacher can be forced to carry out searches unless they are willing to do so, unless, of course, that is their job because they are a member of the school's security staff. I am grateful for the Minister's assurances in her letter of 15 June 2009, but I would like to have it from her own lips for the record. I say in parentheses how sad it is that we now have to have schools with such a thing as security staff.

The Bill places the burden of proving that a seizure, retention or disposal was lawful on the person who carries out the seizure or disposal. This is a serious disincentive to the use of the power. It means that a teacher who uses it could be the subject of legal proceedings in which he would have to prove that what he had done was lawful. Our Amendment 300 would mean that to be lawful a seizure would have to comply only with new Section 550ZC. I hope that this would protect the teacher from cases brought under the Human Rights Act and would have a similar effect to that of Conservative Amendment 305.

Amendments 301 and 302 would ensure that only a member of the school's security staff could seize items found during a search, even if he did not conduct the search, and that he should be able to make the decision as to how to deal with any items found. This would reduce the potential liability of ordinary teachers and put the onus on properly trained security officers to seize and dispose of items.

On some of the amendments tabled by other noble Lords, I have a great deal of sympathy with the idea that the items should include only those that might cause imminent harm—indeed, I have put my name to one of the amendments. Will the Minister consider including that criterion in the eventual regulations that specify what these items should include?

I am afraid that I have no sympathy with the amendments about things that are against the school rules. For example, chewing gum may be against the rules, but it would be a bit over the top to use these powers to search for it. After all, this is not Singapore.

However, for their own protection, teachers should hand over any drugs that are found to the police; otherwise, they would be open to suspicion that they wanted to keep the drugs for their own consumption. None of us would want that. If drugs are found on the premises, most schools already involve the police. That is probably the right approach—while drugs are still illegal.

Baroness Howe of Idlicote (Crossbench)

My Lords, the Government have already made a number of concessions. One of the main issues should be the safety of teachers, which is why I support the emphasis of the noble Baroness, Lady Walmsley, on training in these areas. We must not forget that, when you are using any form of physical restraint, some children will have come from homes where they would consider that that was an immediate assault on them and react to it as such, as has been found when restraint is used in juvenile offender institutions.

The list of prohibited items is already extensive, including offensive weapons, knives, blades, drugs, alcohol and so on. The additional amendments appear to be a catch-all for anything that a school wishes to designate as harmful. That might then include things such as pornography, moral harm and so on. Who would make decisions on whether harm is moral, physical or both? They are difficult areas to decide on.

However, all of us share the concern for the teachers themselves, many of whom are reluctant to use these powers because of the potential for litigation against them. Incidentally, I agree entirely about drugs, which must be handed to the police. However, it would not be a waste of public resources for the school to call in the police when there is a difficult issue. They clearly have the powers and training to carry out these sorts of searches. On that basis, I support the amendments that I have spoken to.

Lord Lucas (Conservative)

My Lords, I am grateful to various noble Lords for addressing my amendments. It makes it much easier for me to go through them. I can see that Amendment 297 will not gain favour with the Liberal Democrats, but my general approach is that we should trust schools and teachers; we should not bind them in red tape as though they did not know how to behave. By and large, teachers and schools will conduct themselves sensibly. Any school that went in for excessive amounts of searching would soon find its discipline and morale breaking down. Such matters have to be handled sensibly and with caution. If one trusts schools, schools must also trust their pupils and, if the system of trust breaks down, one is in deep trouble.

I am in favour of giving schools a fairly wide brief as regards the circumstances in which they can search. I believe that they will use it wisely. Hooking schools on technicalities just because we have not thought what the next problem will be and what will cause problems is foolish.

I also agree with what my noble friend said about protecting teachers, although I have not addressed that in my amendments. It is enormously important that teachers should be presumed to be in the right and should not be presumed to be wrong when they undertake what is a difficult and tricky task of persuading a pupil to let themselves be searched. We ought to start by trusting teachers.

In Amendment 297B, which would leave out lines 40 to 43 on page 140, I address the concept of schools' security staff. I live in a cosseted world and I do not think that I have ever been into a school that employs security staff, other than perhaps a caretaker—for example, members of staff whose job is nothing but security, as defined in subsection (8) of new Section 550ZB. They are not teachers who have had training, but people who are employed solely for security reasons, as if our schools are to have bouncers walking around. I do not think that, even temporarily, that is the right way for a school to deal with a difficult situation or that it is right to have that as a constant feature of a school. I accept what the noble Baroness says about training teachers to do that. This ought to be done by teachers—the people with whom the pupil is familiar, someone who knows the pupil, who knows how to handle the pupil and who has been trained in such things—rather than by some security apparatchik who presumably spends most of their time sitting in a dark room watching telly, waiting for that one time in three months when someone blows the whistle because they want to check whether a boy has a knife. I question the idea of confining the powers to specialist security staff.

Amendment 302A and the subsequent amendments relate to the discretion of teachers not to call in the police. As noble Baronesses have remarked, this is a difficult area to get right and they have favoured calling in the police on every occasion. I prefer to see the school and teachers in loco parentis. There are occasions when it should be in a teacher's discretion not to place on a child's record what is an extremely difficult black mark to eradicate. To be caught in the possession of drugs means that you will never be allowed to go to the United States as a result. You are dropping the child down a deep, black hole if you get them involved in a conviction for carrying drugs when perhaps all they have done is something foolish, idiotic and teenage.

I want to trust teachers and to give them the kind of discretion that I expect schools and head teachers in the private sector ordinarily to exercise. When I see a drugs bust and 33 kids from Winchester had up for possessing pot, I do not believe that tipping all 33 children into police cells for the night is the right way to treat them. The school is there to look after them as a parent and it must judge whether the behaviour is idiocy or serious. I agree that that is difficult.

I shall not press the amendment but, given the opposition from noble Baronesses whose views I greatly respect, I shall think and inquire about it. However, I believe that automatically tipping children into the hands of the police because of something that happens at school is a difficult way for a school to behave towards its children. It changes the spirit of the school and it is a difficult ask of the parents to consign their children into the hands of such uncaring and thoughtless institutions.

Baroness Morgan of Drefelin (Labour)

The extension to the existing power to search for weapons to cover alcohol, illegal drugs and stolen property will further ensure the safety and well-being of learners. It will also allow staff to deal with less serious incidents where the involvement of the police is, as the noble Lord, Lord Lucas, explains unnecessary and where incidents require an immediate response.

In extending the scope of the power—the noble Lord, Lord De Mauley, talked about school rules—noble Lords have called for a power which ranges more broadly. I want to reassure noble Lords that the clause already covers most items that could fall into the category of harm that the Committee has discussed. It enables an authorised member of staff to search a pupil for any article made or adapted for use to cause injury, or intended by the person having it with him to be used to cause injury. Alcohol and illegal drugs are potentially harmful to learners and disruptive to school or college life, both of which will be specified for the first time under the new search powers. These, together with the power to search for stolen items, are things that schools have told us—and, yes, Alan Steer has reported—they would be most likely to need to search for. We have strong reservations about introducing a broader search power either through the definition of harm or the published school rules of the institution. It is vital to remember that searching without consent is a serious infringement of the right to privacy under Article 8 of the European Convention on Human Rights and is justifiable only under the specific terms set out in that article.

We must ensure that the powers that enable those searches to take place also ensure that they are undertaken reasonably and proportionately. Earlier, we were talking about the UNCRC concerning the rights of the child. It is fair that we should continue to think about how we work with and support young people; it seems reasonable that here, too, we should act reasonably and proportionately.

The more open-ended the power to search, the harder it is to justify the infringement of human rights. Our approach has been endorsed by the Joint Committee on Human Rights. That is an important balance that we have been able to strike. Furthermore, it is important that school staff are clear about what they can and cannot search for. Otherwise, we risk causing confusion and uncertainty in schools. That would produce the opposite effect from what the noble Lord, Lord De Mauley, wants—empowering and trusting teachers.

The noble Lord, Lord De Mauley, asked about items such as pornography—violent or extremist literature was also referred to in the other place—and why they are not included. We have no evidence yet that a power to search for those items is needed. Of course, Ministers could consider legislating to extend powers in the regulations further if and when a need was identified. We know that alcohol, illegal drugs and stolen items are specifically highlighted, especially by the 2008 report to the Secretary of State by Alan Steer, which we have already discussed.

We need to trust schools, and there needs to be a two-way trust between pupils and teachers and teachers and pupils—and between the Government and teachers. Their rules can be perfectly reasonable; I accept that absolutely, but it does not necessarily follow that a search without consent for any item contrary to those rules is reasonable. The point of limiting the scope of the clause to five specific items—knives, other offensive weapons, alcohol, illegal drugs, and stolen items—is that we want to promote clarity and proportionality. The example of chewing gum given by the noble Baroness, Lady Walmsley, was a good one. Another example might be earrings. In a lot of schools with which I come into contact, earrings are strictly prohibited for very good reasons.

The noble Lord, Lord De Mauley, asked specifically about the burden of proof on teachers. I shall come to that when I address other amendments. I recognise the noble Lord's argument that it is impossible for us to predict what schools may need to search for in future. That is why I shall speak to the government amendments—I will not go through the whole list. They will create a regulation-making power to add to the list of prohibited items, as I just suggested. That will maintain the safeguards and clarity of a specified list while allowing the list to be extended if a justifiable need arises. I believe that that meets the concerns of noble Lords opposite. That regulation-making power will be subject to the affirmative procedure, to ensure a proper level of parliamentary scrutiny.

The noble Baroness, Lady Walmsley, talked about training. I have sympathy with her arguments, especially about Amendments 297ZA and 303A. However, it is unnecessary to provide a specific requirement for training in the Bill. Our current guidance on screening and searching of learners for weapons, which we intend to revise and strengthen, advises that no one should do a search without training. That is in the guidance. It is unnecessary to introduce a blanket training requirement for all staff. The training needs of individual staff are rightly the decision of the head teacher. Heads are best placed to decide about training, taking account of roles, previous experience, job responsibilities and the context of the school. These provisions require a head teacher to authorise a particular member of staff to undertake a search, and when doing so the head teacher would want to be satisfied that he or she is competent to do so.

The noble Lord, Lord Lucas, and noble Lords on the Liberal Democrat Benches spoke on the confiscation and disposal amendments. Members of security staff fulfil significant roles. It would be great if schools did not need to have their support, but they make a great contribution to schools around the country. Schools can choose to have searches without consent conducted exclusively by members of security staff. Furthermore, school security staff are the only members of staff who the head teacher may require to conduct a search. Teachers may choose not to conduct a search if they feel uncomfortable in doing so. We touched on this point at Second Reading.

Where other authorised members of staff conduct searches and seize items, it is right that they, as the persons actually conducting the search and seizing the items, have power to use reasonable force. We are firmly of the view that it would not make sense to delegate the power to use force in conducting a search. We also do not want to limit to security staff the power to seize items and to use force in doing so. We are keen to ensure that head teachers have the flexibility that they need.

The noble Lord, Lord De Mauley, asked why the burden of proof is on the teacher rather than the pupil. Confiscation is interference in the human right to property. It is a serious matter. I know that the noble Lord is aware of that. The teacher needs to show that confiscation was justified, which is why Section 94 of the Education and Inspections Act 2006, entitled "Defence where confiscation lawful", is framed the way it is. It is not the same as putting a criminal burden of proof on teachers. I am advised to remind the Committee of that point.

The noble Lord, Lord De Mauley, also asked about when items are expected to be handed to the police. Guns and knives must be handed to the police; there is discretion about whether alcohol and confiscated drugs are handed to them.

Turning to Amendment 297B, which the noble Lord, Lord Lucas, referred to, I do not believe that it would be correct for a head teacher to be able to direct any members of staff who did not have school security as a main part of their duties to search against their will. There may be instances where a teacher does not feel comfortable exercising his power to search; for example, where he feels there would be a risk of physical harm. In such circumstances, it will be more appropriate for school security staff or, on extreme occasions, police to conduct the search.

No noble Lord referred to CCTV, but I have a note here that states that on finally turning to Amendment 294, I should reassure noble Lords—if they had mentioned CCTV—that staff would be able to view CCTV evidence where they have suspicion of a prohibited item being on school property. I think that was a matter of concern to the noble Lord, Lord De Mauley.

The noble Baroness, Lady Howe, made the point that defining harm is very difficult, and cited the example of moral harm. I very much agree with her contribution. Given my explanation, which was rather longer than I would have liked, I hope noble Lords will feel able not to press their amendments and will support the government amendments.

Baroness Walmsley (Liberal Democrat)

My Lords, I listened very carefully to what the noble Lord, Lord Lucas, said about the idea that any drugs that are found should be handed over to the police: that that would result in tipping young people into the criminal justice system in some way. I find that suggestion particularly worrying. The noble Lord said a lot of the things that I have often said myself in other contexts. The suggestion is not necessarily what I would want to happen if drugs were found—it might be the right thing to do or it might not—but I remain concerned about the potential for suspicion falling on a teacher who chooses not to hand the drugs over to the police. Perhaps we can have a word about that between now and Report.

The noble Lord, Lord Lucas, has completely changed my opinion that drugs should always be handed over to the police. Maybe I am naive, but I had not really thought about the fact that that would necessarily tip a young person into the criminal justice system. That would not be the right thing at all. Perhaps we can talk about that issue between now and Report and see whether there is some way in which we can make sure that staff are protected should they make that judgment.

Lord Lucas (Conservative)

My Lords, I support the noble Baroness on that. The phrase "dispose of" is careless, but there should be some way in which that can be done so that no member of staff is suspected of retaining the stuff.

Baroness Morgan of Drefelin (Labour)

I am very happy to do as the noble Baroness suggests.

While I am on my feet, I will try to be clearer than I may have been before. Teachers do have the discretion to decide whether or not to call the police. This is set out in new Section 550ZC(4) of the Education Act 1996 on the option to dispose of controlled drugs, and in new Section 550ZC(5)(b) of that Act on the option to return a stolen article to the owner or to dispose of it. However, I am happy for us to discuss this further between now and Report.

Baroness Walmsley (Liberal Democrat)

Can we make it clear that, if drugs are found, they cannot be given back to the pupil but must either be disposed of before a witness, to ensure that they have been disposed of, or given to the police if the matter is really serious and that is the right judgment?

Lord Lucas (Conservative)

My Lords, I think we all knew at school that the stuff that was confiscated from us was used, although perhaps it was not quite the stuff under discussion.

Lord de Mauley (Conservative)

My Lords, I thank the noble Baronesses, Lady Walmsley and Lady Howe, for their contributions. They made some very valid points. If I may say so, it was very refreshing to hear the noble Baroness, Lady Walmsley, say that she had changed her mind. That was very helpful and just demonstrates how useful these debates really are.

I thank my noble friend Lord Lucas for his support, and I strongly agree with his comments on the need to trust teachers. This really is the critical point here—it is the point which the National Union of Teachers makes—and we are setting off down a dangerous path if we put that trust at risk.

Having said that, I thank the Minister for her amendments and her words, about which I will need to think very carefully before Report. For this evening, I beg leave to withdraw the amendment.

Amendment 293 withdrawn.

Amendment 294 not moved.

Amendment 294A

Moved by Baroness Morgan of Drefelin

294A: Clause 235, page 140, line 14, at end insert—

"(f) an article of a kind specified in regulations."

Amendment 294A agreed.

Amendments 295 to 297B not moved.

Amendment 298

Moved by Lord Hunt of Wirral

298: Clause 235, page 141, leave out line 8

Lord Hunt of Wirral (Conservative)

My Lords, we have tabled Amendments 298 and 299 because, as we said in the previous debate, we firmly believe that we should place much more trust in the personal judgment and responsibilities of our teachers. These amendments would mean that neither the searcher nor the witness to the search of a pupil at school has to be of the same gender as the child. We have tabled these amendments for two main reasons. First, it is of vital importance that we trust our teachers. They are professional people who have already been through all the security checks necessary to become a teacher. We must not assume that even after that every teacher has to be restrained in some way and that without the law in place we would see a large number of cases of teachers abusing this power.

The Minister may argue that this legislation is in place to help protect teachers from parents and children who are waiting in some way to accuse teachers of misconduct. My experience is that legislation based on the worst-case scenario very rarely becomes good legislation. Secondly, there is a very practical element to these questions. Does the Bill as it stands really mean that four teachers, two of each gender, would be required on every school trip which took girls and boys, and where prohibited items might be present?

There is also the problem that, particularly in primary schools, there is an overwhelming lack of male teachers. Figures from 2008 show that, in local authority maintained nursery and primary schools, only 14 per cent of full-time teachers were male and 86 per cent were female. Recent figures from the General Teaching Council for England show that 27 per cent of primary schools in England have no registered male teachers. In that situation, what should female teachers needing to search a male child do? Why should they be put in a position where they cannot do anything because the assumption is that if you search a child of a different sex you must be doing something wrong?

This assumption pervades our society at the moment, which is probably one reason why so few male teachers work in primary schools. I found a quotation from Mick Brookes, the general secretary of the National Association of Head Teachers. He said:

"One of the reasons they are put off is the assumption that, if you're a male working in a primary school, there is a fair chance you will be accused of something some time or other".

Finally, the Minister must accept that we are talking about a search power which would only ever require a pupil to take off an outer layer of clothing and there would always have to be a witness.

It is for those reasons that we have tabled amendments to this clause. We welcome the fact that the Government have taken on board many of the concerns expressed. We are very pleased that they have decided to come back to us with some new thoughts and have tabled their own amendments which would increase the flexibility and would allow the witness to be of a different gender from the child, or the student at an FE college, if it was not "reasonably practicable" to find a witness of the same sex. That is a step in the right direction, but does not go as far as we would like.

Nevertheless, I should like to take this opportunity to thank the Minister and her Bill team for the hard work that they have put into this difficult area. We are grateful for the government amendments which we now accept, but we would like the Government to go further. I beg to move.

Lord Geddes (Conservative)

Before putting Amendment 298, I must advise the Committee that if it is agreed to, I will not be able to call Amendment 298A due to pre-emption.

Baroness Morgan of Drefelin (Labour)

I do not think that I have ever risen to speak at the point of changeover of chairmen before, and I am not sure of the protocol.

I thank the noble Lord, Lord Hunt, for his remarks. During the Recess we were able to have discussions about these issues and respond to the concerns raised both in those meetings and during the debates in another place. As a result we are bringing forward amendments in response to concerns about the low proportion of male teachers in primary schools. For this reason, I propose to speak to the amendments tabled in my name which remove the requirement that a witness to the search be the same gender as the learner being searched where this is not practicable. I hope that noble Lords agree that this strikes an appropriate balance, but I gather that the noble Lord, Lord Hunt, does not agree that it does so. However, we are talking about getting the balance right in realistic school situations without weakening the important safeguards in place for learners and, as he suggests, for staff as well. There is a need to maintain consistency across school establishments.

We recognise the difficulties that these safeguards present, particularly to primary schools. However, the powers would be used only rarely in primary schools and the protection these safeguards provide are important for both pupils and staff. They will help to maintain the powers in place to ensure discipline and the orderly running of schools. I appreciate the noble Lord's comments, but we have made moves towards what I believe will strike the right balance. With that, I hope that the noble Lord will feel able to support the government amendments and not press those tabled in the names of his noble friends Lady Verma and Lord De Mauley.

Lord Hunt of Wirral (Conservative)

My Lords, I am grateful to the Minister for her positive and constructive response. She is moving a little on this, but this does not mean she has to stop doing so. What I hope is that between now and the Report stage, she might give even further thought in particular to the difficulty of defining what is reasonably practicable. We can think of all sorts of circumstances in which this does have to go a little further than that. In the mean time, we shall reflect carefully on the points made by the noble Baroness, and I beg leave to withdraw the amendment.

Amendment 298 withdrawn.

Amendment 298A

Moved by Baroness Morgan of Drefelin

298A: Clause 235, page 141, line 8, leave out "and"

Amendment 298A agreed.

Amendment 299 not moved.

Amendments 299A and 299B

Moved by Baroness Morgan of Drefelin

299A: Clause 235, page 141, line 10, leave out "of the same sex as P" and insert "; and"

299B: Clause 235, page 141, line 10, at end insert—

"(d) must ensure that the other member of staff is of the same sex as P if it is reasonably practicable to do so."

Amendments 299A and 299B agreed.

Amendments 300 to 302B not moved.

Amendment 302BA

Moved by Baroness Morgan of Drefelin

302BA: Clause 235, page 142, line 4, at end insert—

"(6A) Regulations may prescribe what must or may be done by a person who, under subsection (1), seizes an article of a kind specified in regulations under section 550ZA(3)(f) (or an article which the person has reasonable grounds for suspecting to be such an article)."

Amendment 302BA agreed.

Amendment 302C not moved.

Amendments 302D to 302F

Moved by Baroness Morgan of Drefelin

302D: Clause 235, page 142, line 12, at end insert "and regulations made under subsection (6A)"

302E: Clause 235, page 142, line 34, at end insert—

"( ) Regulations under section 550ZC(6A) may make provision corresponding to any provision of this section."

302F: Clause 235, page 142, line 34, at end insert—

"( ) In section 569 of the Education Act 1996 (c. 56) (regulations)—

(a) in subsection (2) after "this Act," insert "other than one falling within subsection (2A),", and

(b) after subsection (2) insert—

"(2A) A statutory instrument which contains (whether alone or with other provision) regulations under section 550ZA or 550ZC may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.""

Amendments 302D to 302F agreed.

Clause 235, as amended, agreed.

Clause 236 agreed.

Clause 237 : Power of members of staff to search students for prohibited items: England

Amendment 302G

Moved by Baroness Morgan of Drefelin

302G: Clause 237, page 143, line 24, at end insert—

"(f) an article of a kind specified in regulations."

Amendment 302G agreed.

Amendments 303 to 303A not moved.

Amendments 303B to 303D

Moved by Baroness Morgan of Drefelin

303B: Clause 237, page 144, line 20, leave out "and"

303C: Clause 237, page 144, line 22, leave out "of the same sex as S" and insert "; and"

303D: Clause 237, page 144, line 22, at end insert—

"(d) must ensure that the other member of staff is of the same sex as S if it is reasonably practicable to do so."

Amendments 303B to 303D agreed.

Amendment 304 not moved.

Amendments 304A to 304D

Moved by Baroness Morgan of Drefelin

304A: Clause 237, page 145, line 17, at end insert—

"(6A) Regulations may prescribe what must or may be done by a person who, under subsection (1), seizes an article of a kind specified in regulations under section 85AA(3)(f) (or an article which the person has reasonable grounds for suspecting to be such an article)."

304B: Clause 237, page 145, line 25, after "and (5)" insert "and regulations made under subsection (6A)"

304C: Clause 237, page 146, line 3, at end insert—

"( ) Regulations under section 85AC(6A) may make provision corresponding to any provision of this section."

304D: Clause 237, page 146, line 3, at end insert—

"(2) In section 89 of the Further and Higher Education Act 1992 (c.13) (regulations etc)—

(a) in subsection (3) after "other than" insert "one falling within subsection (3A) or", and

(b) after subsection (3) insert—

"(3A) A statutory instrument which contains (whether alone or with other provision) regulations under section 85AA or 85AC may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.""

Amendments 304A to 304D agreed.

Clause 237, as amended, agreed.

Clause 238 agreed.

Amendment 305 not moved.

Amendment 306

Moved by Baroness Walmsley

306: Before Clause 239, insert the following new Clause—

"Powers of members of staff to use force in schools

(1) Section 93 of the Education and Inspections Act 2006 (c. 40) (power of members of staff to use force) is amended as follows.

(2) Omit subsection (1)(c)."

Baroness Walmsley (Liberal Democrat)

My Lords, I shall speak also to Amendments 307, 307ZA, 307BA, 307BB and 307D.

We move now to the issue of recording and reporting the use of force in schools. None of us wants to see members of staff using force on a child in school but we have to accept that sometimes teachers find themselves up against some very difficult situations and restraint becomes necessary to avoid a child injuring himself or another person, and teachers need clarity on this matter. However, we have some concerns about the way in which Clause 239 will operate, so we have tabled a group of amendments to tease this out.

Amendment 306 would remove,

"prejudicing the maintenance of good order and discipline",

from the list of purposes for which force may be used on a pupil. Since the Government first considered these powers there has been a development in the Court of Appeal. The judgment in R(AC) v Secretary of State for Justice 2008 established that rules allowing children in secure training centres to be restrained to ensure good order and discipline breached Articles 3 and 8 of the European Convention on Human Rights, interpreted in line with the UN Convention on the Rights of the Child. My amendment gives the Government the opportunity to revise their proposals on the use of force in schools in line with this judgment. Section 93 of the Education and Inspections Act 2006 allows staff to use reasonable force in three circumstances, including maintaining good order and discipline. My amendment would remove that and I urge the Committee to accept it.

Amendment 307 would introduce a regulation-making power for the Secretary of State concerning behaviour management training for members of staff in schools. This amendment is supported by the Children's Rights Alliance for England, the Children's Society, the National Children's Bureau, the NSPCC and Treehouse—as was the previous one—because they know, from all their practical experience with children, that situations where restraint might have been necessary can be avoided by well trained staff. If they were trained in de-escalation techniques, risk assessment and safe ways of using force where necessary, respecting children's rights and dignity, we would have a much better situation and much less need for this sort of intervention, which should, of course, always be the last resort.

The training should be a proper accredited course. Staff in secure training centres and children's homes are required by law to undergo such training. It has not heretofore been regarded as being necessary for school staff; however, if the Government are to introduce these new powers, it becomes very necessary. I hope that the Minister will accept my proposal.

Amendment 307ZA allows the Secretary of State to give guidance to the governing body of the school about these recording and reporting powers, and the governors must have regard to it. If that is done, the governors will pay attention to this matter and develop a protocol in the school to which parents will be invited to sign up. It is important that pupils should also be made aware of this protocol. We need openness and accountability here.

With regard to using physical interventions with a pupil with SEN, the child's particular needs should be reflected in their individual education plan or behaviour plan. Where an individual protocol is in place, arising from a risk assessment, different levels of intervention may have been specified as being foreseeable. Parents should be shown, and agree to, such a protocol before it is necessary to use it. For other children, this is a matter in which the governors should take a serious interest.

Amendment 307D would insert the same amendments into Clause 240, relating to further education colleges.

Amendment 307BA tries to raise the bar a little with regard to those incidents that fall under the duties in Clause 239 to record and report the use of force. In our view, small incidents that do not infringe upon the children's well-being, rights or dignity should not impose a duty to record and report. Amendment 307BB suggests that it should be down to the discretion of the head teacher to decide which incidents are of such seriousness that it is in the child's interest to both record them and report them to each parent. Reporting them to a violent parent could result in a child being beaten at home for getting into physical violence. The head teacher must have some discretion in this; head teachers know their children, and we should trust them.

The Government have included "significant" in line 17 on page 146. Will the Minister explain to the House what she means by that term with regard to the discretion and judgment of the head teacher? None of us wants to impose a heavy burden of unnecessary reporting and letter-writing upon a busy head, while at the same time we want to protect children's rights. It is important that legislation gets the balance right so that there is a chance of the whole thing operating sensibly in practice on the ground. I beg to move.

Lord Hunt of Wirral (Conservative)

My Lords, our Amendments 307A, 307B and 307C are designed simply to probe the Government's intentions behind this section of the Bill. Amendment 307A would leave out lines 17 to 19, thus probing the requirement to record each significant incident where a member of staff used force on a pupil. Amendment 307B probes the meaning of the word "significant", while Amendment 307C would leave out lines 25 and 26, which probes the need to record the incident as soon as is practicable.

We have tabled our amendments and participate in this debate to probe the Government's intentions. We agree with the Government that it is important to ensure that our pupils are protected from abuse of power and that our teachers are protected from false accusations. We are, however, concerned that a statutory duty to record and report every significant incident may not be the best way to achieve this.

The National Union of Teachers informs us that,

"current NUT guidance to its members includes advice that procedures should be in place for the recording of significant incidents involving use of physical restraint by staff on pupils and that parents should generally be informed".

Given this, can the Minister inform the Committee of the reason for introducing a statutory duty? Is it in reaction to any particular issue or incident? We would advocate that teachers be allowed to exercise their own professional judgment with regard to what incidents should be recorded and reported to those at home.

We support Amendment 307BB, put forward by the noble Baroness, Lady Walmsley, which, as she explained, would mean that while all "significant" incidents were still recorded, the head teacher could use his or her discretion in deciding whether it was appropriate to inform the child's parents. There may be occasions, as the noble Baroness explained, where the child is at risk of more harm from angry parents if they are informed of every incident whereby a member of staff has to use some amount of force on a pupil to maintain discipline. In those circumstances, it would surely be more appropriate for the head teacher to be able to exercise discretion and make a suitable judgment about the possible dangers posed to a child if the information was passed directly to their parents, instead of a blanket requirement which took no account of specific circumstances or particular situations.

Like the noble Baroness, I would like to hear a little bit more about the meaning of "significant". It would be useful to have some examples of what would have to be recorded under this provision and what would not. With this in mind, I again express my support for the amendment moved by the noble Baroness, Lady Walmsley, which in effect asks for guidance on the type of incidents which are intended to be covered.

Part of our concern about the provisions centres around the worry that teachers are already under a large amount of strain, particularly bureaucratic strain. We should surely seek to decrease, not increase, this burden. Surely everyone wants to avoid any unnecessary and excessive bureaucracy. Given that, does the Minister think that recording and reporting these incidents is a necessary burden? Are the Government not concerned that, with the increase in bureaucracy, they may invite a disincentive for teachers to keep order?

The National Union of Teachers has expressed concern that the new duties to record and report incidents will,

"not offer teachers any higher level of protection from allegations from students or parents which are malicious or unfounded".

Can the Minister reassure the National Union of Teachers on this count?

Our Amendment 308 in this group would mean that a member of staff retained the right to use force as a physical restraint if the pupil attempted to leave the room where they were subject to a disciplinary penalty outside school sessions. The Minister will doubtless recognise the motive behind the amendment, as it has been a constant theme throughout our discussions on this part. The powers to discipline a pupil should be given back to teachers, and we should trust their professional judgment to be able to exercise it.

The amendment responds, in part, to a concern that teachers are now regularly unable to enforce detentions and other punishments because the pupils can simply leave the room and teachers have no power to stop them for fear of litigation and a desire to protect their jobs. How is discipline supposed to be enforced in these circumstances? Would it not be far better to have a system with clear boundaries, enforceable sanctions and immediate resolutions? Instead, we have a confusing mess of guidance, regulation and general fear of litigation. Within the confines of the system, it is very difficult to enforce discipline at all. I look forward to the Minister's response.

Lord Lucas (Conservative)

My Lords, listening to this debate on the use of force against pupils, part of me has been here and part of me has been 50 years ago, thinking what a pleasure it would have been to have my teachers spend so much time filling out incident report books.

Baroness Howe of Idlicote (Crossbench)

My Lords, I have enjoyed listening to this debate, because it raises some important and difficult issues. I want to wait to hear what the Minister has to say, but with reference to Amendments 306 to 308, I am a little concerned about the number of teachers who would have to undergo this type of training. It would appear to be rather expensive, but, if it is really the best way forward, perhaps it is worth doing. On Amendment 306, the maintenance of good order and discipline at school or among pupils educated at the school, during a teaching session or otherwise, is a pretty tricky area. I would not want to see Amendment 308, with the use of physical prevention on a pupil leaving the room. I am all for using your authority, as far as is humanly possible, but physical prevention of somebody leaving a room is really going a little too far. I shall wait to be reassured on those issues by the Minister.

Baroness Morgan of Drefelin (Labour)

My Lords, I shall do my best to respond to all the important points that noble Lords have raised. I start with a question that the noble Lord, Lord Hunt, asked, about whether the new clauses were in response to a specific incident. They are. There was a case a few years ago, although I do not wish to deluge the Committee further with information, in which an autistic girl was restrained many times without her parents being informed, which caused considerable concern and distress and has prompted us to look very carefully at the policy. I should be happy to write to noble Lords, giving some background on that very sad case.

I start by looking at the core recording and reporting requirements in Amendments 307A, 307C and 307D. It is right that teachers and lecturers have the power to use reasonable force in appropriate circumstances, to protect those in their care. I think that that is understood in the Committee. Such incidents can be distressing to learners and staff. Of course, as the noble Baroness, Lady Walmsley, said, we would hope that this was a matter of the last resort. It is appropriate, therefore, that a clear and contemporary report is made of each significant incident—and I recognise the importance of the word significant—and that a report is made to parents. This will act as a safeguard for both learners and for staff, who will be better able to refute malicious and inaccurate accusations. I am sure that that is what already happens in the vast majority of good schools. Recording and reporting is already a good practice which most schools and colleges follow. Making it a legislative requirement will ensure that best practice is applied consistently.

The meaning of "significant" is an important question, which Amendments 307B and 307BA both probe; however, it is important to maintain a sensible balance. We would not want schools to have to make a report every time a teacher stopped a pupil who was leaning back in a chair or falling over, for example. That is why the use of the term "significant" is essential. We are working with our social partners to clarify the criteria that constitute "significant" and will set that out in our statutory guidance.

The question of discretion is also important and is probed in Amendment 307BB. I appreciate fully the strength of feeling on whether head teachers should be able to exercise their discretion in reporting significant incidents of the use of force—again, there is the importance of "significant". I believe, however, that the clause as drafted gets it right in requiring that parents must be told when a significant incident has occurred, which comes back to that important definition.

Where the relationship between the parent and child is so fraught that such a report might have adverse consequences for the pupil or student, the clause would not prevent the report from reaching the parents through a third party—for example, the local social services department. Our first priority is the protection of vulnerable children. Ensuring that parents or guardians know what has happened to their children in school is an important means of providing that protection. If they do not know, how can they play any part in ensuring that issues are addressed? In a tiny minority of cases, we would expect alternative arrangements to be put in place for the parents to be informed.

Amendment 306 would remove the power to use force to maintain good order and discipline. While the use of force must always be a last resort, it is important that teachers should have the option of using reasonable force to maintain authority in their classes—for example, to remove a disruptive child from a classroom. To forbid such action would lead to pupils being able to defy teachers' authority and to disrupt other pupils' learning without redress, which I am sure we must all agree we do not want to see.

On the concern expressed by the noble Baroness, Lady Walmsley, following the completion of the Smallridge and Williamson review, an Appeal Court judgment, as the noble Baroness said, ruled that force could not be used for the maintenance of good order and discipline in secure training centres. We do not, however, accept that banning it in schools is right as schools are, surely, a fundamentally different environment from the secure estate. Young people in the secure estate lack the home support that most pupils enjoy. They are in a closed environment and more likely to be alone with the staff members when force is being used on them than pupils in school.

The paramount importance in schools of ensuring good order and discipline, in order that children can learn, is key. It is simply not acceptable for one disruptive pupil to be able to cause mayhem in a lesson. In some cases, while I understand the concern expressed by the noble Baroness, Lady Howe, on this, the use of force to get the pupil out of the classroom may be the only option. Without that power, the disciplinary authority of teachers would also be fatally compromised.

I shall finish on training, an issue that the noble Baroness, Lady Walmsley, raises again in Amendment 307. We recognise the importance of appropriate training for school staff in the use of force. Our existing guidance on the use of force highlights the importance of good training and recommends that schools set out their approach to relevant training in their use-of-force policy. Our guidance makes clear the principle that force should be used only as a last resort and covers de-escalation techniques, in the very way that the noble Baroness mentioned. As she knows, it is all about reducing risk and ensuring that proper risk assessments are made.

The noble Lord, Lord Hunt, discussed detentions in referring to Amendment 308. School staff already have the power to use reasonable force to prevent a pupil from committing an offence, causing injury, damaging property or prejudicing the maintenance of good order and discipline. In circumstances where a pupil walking out of a detention would clearly undermine good order and discipline, a member of staff would be able, if they judged it appropriate, to use reasonable force to prevent them from leaving.

It is absolutely right that teachers should have the powers and tools that they need to keep good order in the classroom. Importantly, however, we must ensure that teachers know about the powers that they already have, which are pretty comprehensive. I hope, having addressed concerns, particularly around the key issue of the definition of "significant", and our work with social partners—the teaching unions and professional associations—to ensure that we get this right and strike the right balance, that the noble Baroness feels able to withdraw her amendment.

Baroness Walmsley (Liberal Democrat)

My Lords, I am grateful to all noble Lords who have contributed to the group and I thank the Minister. Can she tell us when we will get to see the statutory guidance on "significant"? I take it, from what she said, that it is for the head teacher to judge what "significant" means. Is that correct?

Baroness Morgan of Drefelin (Labour)

I hope that I will be able to give the noble Baroness some positive news on when she will be able to get the guidance.

My goodness! Again, there is a quality of service because we are working on such a special and important Bill.

I am going to disappoint the Committee. I am advised that the statutory guidance will not be available before Report. However, I am sure that we will be able to keep the noble Baroness informed of how discussions are going with social partners.

Baroness Walmsley (Liberal Democrat)

I thank the noble Baroness for that. I am somewhat reassured by what she said about training. It is terribly important, as she perhaps agrees.

On maintaining good order and discipline, I fail to see why it is not appropriate to use force to maintain good order and discipline in a secure training centre but it is in a school. The noble Baroness says that it is a completely different context and that the young person is more likely to be alone with a member of staff in a secure training centre. On the other hand, this situation is more likely to happen in a secure training centre because of the nature of the personnel involved. I warn the Government: I am absolutely sure that there will be a test case on this. It is inevitable.

On detention, I am distraught to hear that a teacher would have the right to use physical restraint to stop a child walking out of detention. If I had to use physical force to stop a child walking out of a room, I would regard myself as having failed completely in exerting my authority over that child; the last thing that I would do would be to demonstrate that through the use of force. What does one do? Wrestle them to the ground to stop them going out of the door? It is completely mad and self-defeating. However, with those comments, I beg leave to withdraw the amendment.

Amendment 306 withdrawn.

Amendment 307 not moved.

Clause 239 : Recording and reporting the use of force in schools: England

Amendments 307ZA to 307C not moved.

Clause 239 agreed.

Clause 240 : Recording and reporting the use of force in FE colleges: England

Amendment 307D not moved.

Clause 240 agreed.

Amendment 308 not moved.

Clause 241 : Co-operation with a view to promoting good behaviour, etc.: England

Amendments 309 and 310 not moved.

Clause 241 agreed.

Clause 242 agreed.

Amendment 311

Moved by Lord Lucas

311: Before Clause 243, insert the following new Clause—

"Support for home education

Support for home education

(1) The Secretary of State shall establish a body to be known as the Home Education Consultative Committee (the "HECC").

(2) The Secretary of State shall appoint to the HECC such persons as he considers appropriate.

(3) The Secretary of State shall consult the HECC whenever he intends to make proposals that will have an effect on home educating families.

(4) The HECC may undertake investigations into areas of policy or practice in relationships between the government and the home educating community.

(5) The HECC may produce and promote guidelines and examples of good practice in relationships between the government and the home educating community.

(6) The HECC may make proposals to the Secretary of State for changes in practice or policy of home education."

Lord Lucas (Conservative)

This was put down as a placeholder in case we got to the point where anything crept in from the Government's side on the subject of home education. However, I think that it has its own value. In the next Session we shall doubtless consider home education in detail so I do not want to trespass on that now, but there is a history in this country of a lack of contact and comprehension between Government and home educators. This is not the case in Scotland, where there is a settled arrangement whereby an intermediary body has developed which allows the home education community to communicate satisfactorily with the Scottish Government, and by and large things there proceed pretty well. Here when the Government announced their Badman review, I think that more than 2,000 home educators sent in individual views, and being home educators they were individual views and not copied out of some round robin. The Government must have found it impossible to deal with that variety, depth and passion of view. As a result, the home education community feels, probably quite rightly, that its views were ignored, although I do not blame the Government because I cannot see how a civil servant can ever be expected to get their mind around such an extraordinary variety of opinions and produce a coherent briefing for a Minister. What is needed is some form of intermediary body.

I do not at all hold to the particular plan that I put down here; that was a case of working something out on paper to see what reaction I had to it. There has been a good deal of hostility to it from the home education community, as I expect there would be to any plan. Nevertheless, I hope that the Government will express themselves open to an initiative in this area and say that they would welcome such an intermediary body if it could be created, or something that would enable the home education community to speak effectively to Government, and then perhaps if there is a known willingness something will happen. I beg to move.

Baroness Walmsley (Liberal Democrat)

My Lords, as the noble Lord, Lord Lucas, is substantially keeping his powder dry until the next stage, so will I.

Baroness Verma (Conservative)

My Lords, on 2 April this year in another place, my honourable friend Michael Gove asked the then Minister, Jim Knight,

"what percentage of (a) girls and (b) boys are receiving home schooling in each local authority area, broken down by ethnic group".

The Minister answered:

"The information requested is not collected centrally".—[Official Report, Commons, 2/4/09; 1342W.]

I understand that this is the case at the moment. Does the Minister consider that it might be useful to have a clearer picture of how much schooling occurs in this country? Moreover, might it not be useful and relevant in formulating the structure of education in this country to know who favours home schooling and what their reasons are for it? I will listen to the Minister's response with great interest.

Baroness Morgan of Drefelin (Labour)

My Lords, I am sure that the noble Baroness, Lady Verma, is absolutely right—it would be very helpful to know in a lot more detail the numbers and profiles of families and young people who are educated at home. There are wide-ranging figures from some 20,000 up to 100,000 plus. However, as the noble Lord, Lord Lucas, has said, there is a lot of interest in the whole question of home education and how home educators are supported. I know that the amendment seeks to establish a new consultative committee at a national level, but it is interesting that he is flying a kite. It is helpful to fly a number of kites in this area because the diversity of opinion on it is challenging to grapple with.

Home education is an established part of the British education system and there are great benefits where it works and where it is the best option for the child. I have met some very impressive young people who are a credit to their home education. We recognise the valuable contribution made by home educators and we certainly wish to see home education continue as a real option for parents. We do not wish to undermine it in any way. We want to ensure that home educators receive the right level of support to ensure that they can provide a suitable education for their children.

On 9 October, we published our full response to Graham Badman's report, Review of Elective Home Education in England. The response sets out our strong commitment to supporting home educators, particularly where children have special needs or wish to access examination centres or further education colleges, which I know many find difficult to do.

It is important for home educators to have a voice in any decisions that affect them. I very much agree with the noble Lord, Lord Lucas, on that. In our response to the Badman report we recognise that consultation at local level is important if home educators are to receive the services that they need. That is why we undertook to include in any statutory guidance that we issue a recommendation that local authorities set up consultative forums for home educators to review local authority arrangements for monitoring and services provided to them.

Putting these consultative structures in place at local, rather than national, level will ensure that decisions can be taken with a better understanding of the real needs of the local home-educating community and the range of educational services available in the area in which they live—and perhaps limit the diversity of the issues that have to be grappled with. There are a number of organisations—particularly Education Otherwise, which I have met—that are very good at voicing the concerns of home educators. However, I understand from the noble Lord's introduction that this is a probing or placeholding amendment, and I am grateful to him for giving me an opportunity to put these sentiments on the record.

Lord Lucas (Conservative)

My Lords, I am grateful to the noble Baroness for her considered reply, which I shall read tomorrow with care. I am disappointed that she does not think that anything is needed nationally. Perhaps that means that she is not proposing in the next Session to bring forward any great national requirements on home educators. That would be good news, but I do not expect that to be the case.

Many things that central government do have an effect on the home education community, not only as regards education but also as regards social security, health and in many areas in which regulations coming from the centre make life difficult for co-operation at local level. I see a role for continuing dialogue. I shall read what the noble Baroness has said but for now I beg leave to withdraw the amendment.

Amendment 311 withdrawn.

Amendment 312 not moved.

10.45 pm

Clause 243 : Information about planned and actual expenditure

Amendment 313 not moved.

Clause 243 agreed.

Clauses 244 to 247 agreed.

Amendment 313A not moved.

Clause 248 : Further education corporations in England: co-operation and promotion of well-being

Amendment 314

Moved by Baroness Sharp of Guildford

314: Clause 248, page 153, line 10, at end insert "and community cohesion,"

Baroness Sharp of Guildford (Liberal Democrat)

I tabled this amendment at the behest of the 157 Group of the larger colleges to emphasise its welcome for the provisions in Clause 248. Last year's education Act gave schools the responsibility and duty to promote the well being of their pupils. This clause goes somewhat further. The further education colleges are asked to promote,

"the economic and social well-being of the local area",

and in so doing they should co-operate with other local institutions, including schools, colleges and employers.

The amendment would add the words "and community cohesion" to economic and social well being. If truth be known it really adds very little: implicitly promoting economic and social well being in a local area must in itself help to promote social cohesion. The 157 Group wished to emphasise its vision of colleges as the vibrant and dynamic centres of activity in their locality, positively reaching out to serve their local communities, going out and finding out about skills gaps and employer needs, but also holding an open door and saying to the local population, "Come and talk to us and we will help you to fulfil your ambitions and aspirations in educational terms".

In that respect it is vital to recognise the role that further education colleges can play within their local communities, providing for educational needs from courses in basic literacy and numeracy on the one hand to foundation and honours degrees on the other. The larger colleges have anything between 15,000 and 30,000 students on their books and a turnover of up to £60 million. They are often larger than the local university and much larger than the schools. Increasingly, they are co-operating with both sets of institutions. The amendment seeks to say that they not only accept but positively welcome their role as movers and shakers within their local community. I beg to move.

Lord Lucas (Conservative)

"Cohesion" is a good word. I shall try to stick it into Clause 169 instead of "coherence".

Lord Young of Norwood Green (Labour)

Amendment 314 proposes to add "community cohesion" to the objective of promoting the economic and social well being of a local area, to which further education corporations should have regard, similar to the duty on governing bodies of maintained schools in England, set out in Section 21 of the amended Education Act 2002.

We are working with the further education sector on how the duty to have regard to the promotion of well being will be implemented. I can assure noble Lords, and especially the noble Baroness, Lady Sharp, that we will ensure that any guidance that relates to this makes it clear that the definition of economic and social well being of an area encompasses the important concept of "community cohesion". We recognise the importance, as the noble Baroness, Lady Sharp, stressed, of larger colleges and their role in the community. We see the cohesion of communities in the local area as a significant contributor to their social and economic well being. We have already established a group of champion college principals to drive work on this and we will look to our champions to work with colleges on how best to fulfil their new duty. With these reassurances, I invite the noble Baroness to withdraw the amendment.

Baroness Sharp of Guildford (Liberal Democrat)

I thank the Minister for his reply. We are both in accord on this and I beg leave to withdraw the amendment.

Amendment 314 withdrawn.

Clause 248 agreed.

Amendment 315

Moved by Baroness Sharp of Guildford

315: After Clause 248, insert the following new Clause—

"Teacher training to meet diversity of education and training opportunities

(1) Section 75 of the Education Act 2005 (c. 18) (functions of agency) is amended as follows.

(2) After subsection (4) insert—

"(4A) In subsection (3)(c) "to prepare for opportunities, responsibilities and experiences of later life" includes preparation for qualifications which fully reflect the diversity of opportunities in education and training open to such persons."

(3) After subsection (5) insert—

"(5A) For the purposes of this Part—

(a) "education" includes full time and part time education;

(b) "training" includes—

(i) full time and part-time training, and

(ii) vocational, social, physical and recreational training, and

(iii) apprenticeship training.""

Baroness Sharp of Guildford (Liberal Democrat)

Amendment 315 is about training teachers for vocational subjects. There is a problem in that those who have the QTS qualification have little training in vocational subjects. Those who teach vocational subjects in further education colleges have the QTLS qualification, which is not acceptable in an ordinary school unless they have a degree. Some of them come into vocational subjects without having degrees. I am in discussion with the Bill team and with Ministers on these issues and it would be sensible to pursue our discussion.

Amendment 315A is about outdoor education and whether sufficient training is given to those going through the initial teacher training on how to handle outdoor expeditions. Do they know enough about writing risk assessments and the like? There is evidence that some of them do not have enough training to be confident in taking groups outside school. For that reason, many schools are not mounting as many expeditions. It is important that they do because there are many advantages in having expeditions of one sort or another outside the school.

In both cases, we need to look at the training that is given and minor amendments are required. It would be sensible for us to pursue our discussions with Ministers and reach an agreement and on Report perhaps make a statement clarifying the situation.

Baroness Morgan of Drefelin (Labour)

I am happy to continue our discussions in the hope that they will be fruitful.

Baroness Sharp of Guildford (Liberal Democrat)

With that reassurance, I beg leave to withdraw the amendment.

Amendment 315 withdrawn.

Amendment 315A not moved.

Clauses 249 to 253 agreed.

Amendment 316 not moved.

Amendments 317 and 318 had been withdrawn from the Marshalled List.

Clause 254 : Orders and regulations

Amendments 319 and 320 had been withdrawn from the Marshalled List.

Amendments 321 and 322

Moved by Baroness Morgan of Drefelin

321: Clause 254, page 157, line 13, leave out "37 or"

322: Clause 254, page 157, line 22, leave out paragraph (e)

Amendments 321 and 322 agreed.

Clause 254, as amended, agreed.

Clauses 255 to 258 agreed.

Schedule 16 agreed.

Clauses 259 and 260 agreed.

Clause 261 : Commencement

Amendment 323

Moved by Baroness Morgan of Drefelin

323: Clause 261, page 159, line 37, leave out "50" and insert "51"

Amendment 323 agreed.

Clause 261, as amended, agreed.

Clause 262 agreed.

House resumed.

Bill reported with amendments.