Report (4th Day)
Education Bill
4:00 pm

Clause 41 : Inspection of further education institutions: exempt institutions

Amendments 81 and 82

Moved by Lord Hill of Oareford

81: Clause 41, page 37, line 13, leave out "follows" and insert "set out in subsections (2) to (10)"

82: Clause 41, page 38, line 4, at end insert-

"(11) In section 182 of EIA 2006 (parliamentary control of orders and regulations)-

(a) in subsection (2), after paragraph (a) insert-

"(aa) regulations to which subsection (2A) applies,";

(b) after subsection (2) insert-

"(2A) This subsection applies to regulations made under section 125(1A) (power to prescribe institutions exempt from inspection), apart from the first regulations to be made under that subsection.";

(c) in subsection (3), after paragraph (a) insert-

"(aa) regulations to which subsection (2A) applies,"."

Amendments 81 and 82 agreed.

Clause 43 : Schools causing concern: powers of Secretary of State

Amendment 82A not moved.

Schedule 12 : Further education institutions: amendments

Amendment 82B

Moved by Lord Hill of Oareford

82B: Schedule 12, page 90, line 38, at end insert-

" After section 16 insert-

"16A Publication of proposals

(1) The appropriate authority may not make an order under section 16(1) or (3) unless the authority has published a draft of the proposed order, or of an order in substantially the same form, by such time and in such manner as may be prescribed.

(2) A draft proposal or order in respect of an institution which is maintained by a local authority may not be published without the consent of the governing body and the local authority.

(3) In this section "the appropriate authority" means-

(a) in relation to a proposal or order in respect of an institution in England, the Secretary of State;

(b) in relation to a proposal or order in respect of an institution in Wales, the Welsh Ministers.""

4:01 pm
Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I will speak to the government amendments in this group. As noble Lords may be aware, in October 2010 the Office for National Statistics announced its decision to reclassify FE colleges to the public sector for the purposes of the national accounts. This reclassification would impose heavy new administrative burdens on colleges, and could significantly affect their ability to make their own strategic and operational decisions.

If FE colleges were exposed to the full rigours of the government expenditure regime, they would lose the flexibility they currently have to phase expenditure between different financial years; they would need to work within a financial year that does not line up with their academic year; and it is likely that the very freedoms we are introducing to enable them to borrow without seeking permission would need to be taken away from them, and even tighter constraints introduced. These and other controls would all act as barriers to colleges growing, innovating and developing as we would wish them to do.

I am very grateful to my noble friend Lady Sharp for raising this important issue in Committee. Recent feedback from the ONS has indicated that the powers held by the Secretary of State in two areas were indicative of public sector control. We have looked again at these areas to see whether changes could be made to secure private sector classification for colleges, something that I know successive Governments have wished to retain.

The first area is Secretary of State control over the instrument and articles of the governance of colleges. I am sure all noble Lords would agree that every college should have clear, transparent and robust governance arrangements. However, we believe that this can be achieved without Secretary of State control. The government amendments in this group remove the powers of the Secretary of State-or in the case of sixth form colleges, the YPLA-to alter college instrument and articles and place these powers with the college itself. For most colleges this change will make no difference, but it will enable colleges that want to develop and improve their governance in response to the needs of their students, employers and local community to do so. We have retained the essential elements that all instruments and articles must contain in new Schedule 4, which is set out in Amendment 84ZL.

The second area is the Secretary of State's control over the closure of colleges, known as dissolution. Presently, only the Secretary of State can dissolve a college. The government amendments remove this power from the Secretary of State and give colleges control over their own dissolution. These amendments, and the regulations that will be laid in support of them, include a number of safeguards to ensure that any dissolution decision is taken only once all those affected-staff, students and the local community-have been consulted, and that the process is undertaken in a clear and transparent way, recognising that colleges are providers of an important public service.

Existing legislation provides the state with a legal mechanism to tackle, in extremis, failure in colleges, and this will be retained. In cases where there is evidence of significant mismanagement in colleges, the Secretary of State will be able to exercise his powers of intervention to direct the college to dissolve itself and transfer its property, rights and liabilities to another provider. This action will be taken only once all other steps have been taken to secure improvements, where it is necessary for the Government to intervene as a matter of last resort, to protect students.

I wrote today about government "correcting" Amendments 84ZBA and 84ZN, which correct the provision in Schedule 12 that repeals the duty on colleges to have regard to guidance on consultation with students and employers in England, while retaining this in Wales.

It may help if I inform noble Lords of discussions between the noble Baroness, Lady Jones of Whitchurch, and my honourable friend, the Minister for Further Education, Skills and Lifelong Learning, John Hayes MP, on her Amendment 84ZLA, which would retain requirements for staff and student governors. On behalf of my honourable friend, I thank the noble Baroness and the noble Lord, Lord Young of Norwood Green, for taking the time to meet us. I apologise to them for bringing these amendments forward at a later stage than we would have liked.

The Government have brought forward these changes to support our case for the private sector classification for colleges, in accordance with the policy of successive Governments. It was not our intention to encourage colleges to remove staff or student governors from college governance arrangements. I know that colleges greatly value the contribution that those governors make.

Having listened to the arguments that were put to him by the noble Baroness, Lady Jones of Whitchurch, my honourable friend Mr Hayes and I have spoken further. We have decided that the Government will return at Third Reading with their own amendment, which will give effect to what the noble Baroness's amendment seeks to achieve. With that assurance, I hope that the noble Baroness will feel able to withdraw the amendment.

Photo of Baroness Jones of Whitchurch

Baroness Jones of Whitchurch (Labour)

My Lords, as the Minister has indicated, we have tabled Amendment 84ZLA in this group. Its aim was to reinstate the rights of students and staff to be represented on FE college governing bodies. As the Minister has described, last night we had a useful meeting on this issue with John Hayes. I think it was acknowledged at that meeting that the proposals had arrived rather late and that there had not been time to consult the stakeholders effectively on the implications of these changes.

I am therefore grateful that the Minister has agreed to reconsider this issue and to come back with a form of words that will reinstate the right to student and staff representation at Third Reading. On this basis, we are prepared to withdraw Amendment 84ZLA. We of course reserve the right to return to this issue at Third Reading should we feel that the new proposals are lacking in any way, but I am sure that that will not be the case. For the moment, I thank the Minister for the progress made on this issue.

In the mean time, we are still absorbing the wider implications of these governance changes. I should be grateful if the Minister could clarify whether one consequence, intended or otherwise, is that governors of FE colleges will be able to be paid in the future. If he does not have that information to hand, perhaps he could write to me.

Moving briefly to the issues covered by the noble Baroness, Lady Brinton, in Amendment 83, this issue was well aired in Grand Committee and very much supported by us at that time. As the noble Baroness, Lady Sharp, said during the earlier debate, colleges should be,

"a dynamic nucleus within their communities".-[Official Report, 12/9/11: col. GC 141].

FE colleges have worked hard in the last decade to advance strong partnerships with local businesses, and have the inside track on local employment markets. Their links with local youth services are now more important than ever, as resources shrink.

The Association of Colleges has argued that while it highly prizes the work that local colleges achieve in their communities, this work will carry on whether or not there is a duty to do it. The Minister said something similar in Grand Committee. I would turn this argument on its head; if the work is so prized and so effective, should we not take the precaution of leaving it in the original legislation to ensure that it continues, rather than sending a signal that it is no longer a requirement on colleges, which might otherwise develop different priorities?

With these comments, I look forward to the Minister's response to the debate.

Photo of Baroness Sharp of Guildford

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, I have two amendments in this grouping, Amendments 83 and 84. They do indeed pick up the issue that we spoke about in Committee, which is the duty on the part of colleges to promote the well-being of the local area.

I thank the Minister for bringing forward this raft of amendments. As he knows, I am chairing a commission on behalf of NIACE, the AoC and the 157 Group, which is looking into the role of colleges in their communities. The issue of the reclassification by ONS cropped up in our deliberations on this commission. Our intention is to promote the role of colleges. As the noble Baroness says, we have used the term "dynamic nucleus within their communities"-they should be proactive in developing partnerships and in promoting well-being and community cohesion within their communities. Since that is the case, we are very anxious that they should not be inhibited from this by a statistical classification, and therefore we have been backing the moves made by the department here. I put down some rather naive amendments in Committee in order to pave the way for this, and I am delighted that we have-I hope-managed to come forward with a way that prevents this reclassification.

In relation to my own amendments, I have spoken at some length both with the AoC and with the department about this issue. As I have suggested, the report, which is going to be presented at the AoC conference later this month, will in fact suggest a wider role for colleges within the community, and I think there is a fair amount of good will towards the promotion of this role. In the light of that, I have decided that it would not be appropriate at this time to press my amendments. There is good will on all parts, and the assumption is that colleges will be promoting the well-being of their local area as part of what they will be doing. There is no question of that, but it does not necessarily need to be in the Bill, so, as I say, I shall not press my amendments today.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I thank my noble friend Lady Sharp for raising the issue of promoting well-being, and take the opportunity to thank her formally for the work she is doing at the helm of the Government's commission on the role of colleges in their communities. As she has just said, colleges contribute significantly to the social and economic well-being of their local areas, not only through the education, skills and employment that they provide but through their partnerships and relationships with other bodies in their local areas. I am grateful to her, and look forward to the report that she was talking about, which she is launching at the Association of Colleges conference later in the month.

I am grateful to the noble Baroness, Lady Jones of Whitchurch, for her remarks. On her specific question about remuneration, I understand that colleges need to apply, as now, for exceptional approval for the remuneration of governors for their services as members of the governing body. The change is that they would be treated in line with other charities, and would have to apply to the Charity Commission rather than to the Secretary of State. There is no general power in charity law for trustee boards to make remuneration payments, so permission would be granted only in exceptional circumstances, as the commission has a general expectation that charity assets should be used directly for the purposes of the charity.

The amendments that the Government have tabled, as I think has been recognised, have been made within the context of a changed landscape, in which government and the sector are working together. It has been the policy of successive Governments since the inception of FE corporations in 1992 that colleges should not have the financial and control requirements associated with public sector classification. Our amendments seek to strike the right balance between securing that classification while safeguarding students and public investment in the sector. With the assurance that I have given the noble Baroness, Lady Jones of Whitchurch, I hope noble Lords generally will feel that we have struck such a sensible balance.

Amendment 82B agreed.

Amendment 82C

Moved by Lord Hill of Oareford

82C: Schedule 12, page 90, line 40, at end insert-

"( ) In subsection (4)(c), for "27" substitute "27C or 33P"."

Amendment 82C agreed.

Amendment 83 not moved.

Amendments 83A to 83E

Moved by Lord Hill of Oareford

83A: Schedule 12, page 91, line 18, at end insert-

" In section 20 (constitution of further education corporation and conduct of further education institution), for subsection (2) substitute-

"(2) Instruments of government and articles of government of further education corporations in England-

(a) must comply with the requirements of Part 2 of Schedule 4, and

(b) subject to that, may make such other provision as may be necessary or desirable.

(2A) Instruments of government and articles of government of further education corporations in Wales-

(a) must comply with the requirements of Part 3 of Schedule 4, and

(b) subject to that, may make any provision authorised to be made by that Part of that Schedule and such other provision as may be necessary or desirable."

For section 22 substitute-

"22 Subsequent instruments and articles: England

A further education corporation in England may modify or replace their instrument of government or articles of government.

22ZA Subsequent instruments and articles: Wales

(1) Subject to subsections (2) and (3), the Welsh Ministers may-

(a) if a further education corporation in Wales submits a draft of an instrument of government to have effect in place of their existing instrument, by order make a new instrument of government in the terms of the draft or in such terms as they think fit, and

(b) if such a corporation submits draft modifications of an instrument made under paragraph (a), by order modify the instrument in the terms of the draft or in such terms as they think fit.

(2) The Welsh Ministers must not make a new instrument otherwise than in the terms of the draft, or modify the instrument otherwise than in the terms of the draft, unless they have consulted the corporation.

(3) If the institution conducted by a further education corporation mainly serves the population of England, or receives financial support from the Chief Executive of Skills Funding, the Welsh Ministers must consult the Chief Executive of Skills Funding before making an order under subsection (1).

(4) The Welsh Ministers may by order modify, replace or revoke any instrument of government or articles of government of any further education corporation in Wales.

(5) An order under subsection (4) may relate to all further education corporations in Wales, to any category of such corporations specified in the order or to any such corporation so specified.

(6) Before making an order under subsection (4), the Welsh Ministers must consult-

(a) the further education corporation or (as the case may be) each further education corporation to which the order relates, and

(b) the Chief Executive of Skills Funding, if the institution conducted by the corporation or (as the case may be) any corporation to which the order relates mainly serves the population of England, or receives financial support from the Chief Executive of Skills Funding.

(7) A further education corporation in Wales may, with the consent of the Welsh Ministers-

(a) make new articles of government in place of their existing articles, or

(b) modify their existing articles.

(8) The Welsh Ministers may by a direction under this section require further education corporations in Wales, any class of such corporations specified in the direction or any particular further education corporation so specified-

(a) to modify, replace or revoke their articles of government, or

(b) to secure that any rules or bye-laws made in pursuance of their articles of government are modified, replaced or revoked,

in any manner so specified.

(9) Before giving a direction under this section, the Welsh Ministers must consult the further education corporation or (as the case may be) each further education corporation to which the direction applies."

83B: Schedule 12, page 91, line 19, leave out paragraph 4 and insert-

" For section 27 substitute-

"27 Proposals for dissolution of further education corporations: England

(1) This section applies if a further education corporation in England propose that the corporation should be dissolved.

(2) The corporation must publish details of the proposal, and such other information as may be prescribed, in accordance with regulations.

(3) The corporation must consult on the proposal, and take account of the views of those consulted, in accordance with regulations.

27A Dissolution of further education corporations: England

(1) This section and section 27B apply if, after complying with section 27, a further education corporation in England resolve that the corporation should be dissolved on a specified date.

(2) "The dissolution date" means the date specified in a resolution under subsection (1).

(3) The corporation must notify the Secretary of State of the resolution and the dissolution date as soon as reasonably practicable.

(4) The corporation are dissolved on the dissolution date.

27B Dissolution of further education corporations: England: transfer of property, rights and liabilities

(1) At any time before the dissolution date, the corporation may transfer any of their property, rights or liabilities to such person or body, or a person or body of such description, as may be prescribed.

(2) The corporation may do so only with the consent of the person or body concerned.

(3) A transfer under subsection (1) has effect on the dissolution date.

(4) Subsection (5) applies if a person or body prescribed, or of a description prescribed, under subsection (1) is not a charity established for charitable purposes which are exclusively educational purposes.

(5) Any property transferred to the person or body must be transferred on trust to be used for charitable purposes which are exclusively educational purposes.

27C Dissolution of further education corporations: Wales

(1) Subject to the following provisions of this section, the Welsh Ministers may by order provide for-

(a) the dissolution of a further education corporation in Wales, and

(b) the transfer to any person mentioned in subsection (2) or (3) of property, rights and liabilities of the corporation.

(2) Such property, rights and liabilities may, with the consent of the person or body concerned, be transferred to-

(a) any person appearing to the Welsh Ministers to be wholly or mainly engaged in the provision of educational facilities or services of any description, or

(b) any body corporate established for purposes which include the provision of such facilities or services.

(3) Such property, rights and liabilities may be transferred to a higher education funding council.

(4) Where the recipient of a transfer under an order under this section is not a charity established for charitable purposes which are exclusively educational purposes, any property transferred must be transferred on trust to be used for charitable purposes which are exclusively charitable purposes.

(5) An order under this section may apply section 26 with such modifications as the Welsh Ministers consider necessary or desirable.

(6) Before making an order under this section in respect of a further education corporation, the Welsh Ministers must consult-

(a) the corporation, and

(b) the Chief Executive of Skills Funding, if the institution conducted by the corporation mainly serves the population of England, or receives financial support from the Chief Executive of Skills Funding.""

83C: Schedule 12, page 91, line 21, leave out paragraph 5 and insert-

" For section 29 substitute-

"29 Government and conduct of designated institutions

(1) This section applies to a designated institution, other than-

(a) an institution conducted by a company, or

(b) an institution conducted by an unincorporated association, if the order designating the institution provides for its exemption.

(2) For each designated institution to which this section applies, there is to be-

(a) an instrument providing for the constitution of a governing body of the institution (to be known as the instrument of government), and

(b) an instrument in accordance with which the institution is to be conducted (to be known as the articles of government).

(3) In sections 29A to 29C-

"instrument" means an instrument of government or articles of government;

"regulatory instrument", in relation to an institution, means-

(a) an instrument of government or articles of government, or

(b) any other instrument relating to or regulating the institution.

29A First post-designation instruments and articles of designated institutions: England and Wales

(1) The first post-designation instrument and articles of government of a designated institution to which section 29 applies must each comply with subsection (3) and (if the institution is in Wales) subsection (6).

(2) The "first post-designation instrument and articles of government" of a designated institution are the first instrument of government and articles of government that the institution has after the designation takes effect.

(3) The instrument must meet one of the following requirements-

(a) the instrument was in force when the designation took effect and is approved for the purposes of this section by the appropriate authority;

(b) the instrument-

(i) is made in pursuance of a power under a regulatory instrument or (where there is no such power) by the governing body of the institution, and

(ii) (in either case) is approved for the purposes of this section by the appropriate authority;

(c) the instrument is made by the appropriate authority by order.

(4) An instrument made by the governing body under subsection (3)(b) or the appropriate authority under subsection (3)(c) may replace wholly or in part an existing regulatory instrument.

(5) Before making an instrument under subsection (3)(c), the appropriate authority must, so far as it appears practicable to do so, consult-

(a) the governing body of the institution, and

(b) where there is power under a regulatory instrument to make the instrument, and that power is exercisable by persons other than the governing body of the institution, the persons by whom the power is exercisable.

(6) If the institution is in Wales, provision made by the instrument in relation to the appointment of members of the governing body must take into account the members who may be appointed by the Welsh Ministers under section 39 of the Learning and Skills Act 2000.

(7) In this section "the appropriate authority"-

(a) in relation to an institution in England, means the Secretary of State;

(b) in relation to an institution in Wales, means the Welsh Ministers.

29B Changes to instruments and articles: England

(1) This section applies to a designated institution in England which is an institution to which section 29 applies.

(2) The governing body of the institution may modify or replace its instrument of government and articles of government.

(3) The instrument of government and articles of government (as modified or replaced)-

(a) must comply with the requirements of Part 2 of Schedule 4, and

(b) subject to that, may make such other provision as may be necessary or desirable.

29C Changes to instruments and articles: Wales

(1) This section applies to a designated institution in Wales which is an institution to which section 29 applies.

(2) Subject to subsection (3), the governing body of the institution may modify, replace or revoke its instrument of government and articles of government if -

(a) the instrument falls within section 29A(3)(a),

(b) the instrument was made by the governing body, or

(c) the instrument was made in pursuance of a power under a regulatory instrument, where there is no other power to modify it.

(3) An instrument approved under section 29A(3)(a) or (b) by the Welsh Ministers may not be modified, replaced or revoked without the consent of the Welsh Ministers.

(4) The Welsh Ministers may by order modify, replace or revoke the instrument of government or articles of government of the institution.

(5) Before making an order under subsection (4), the Welsh Ministers must, so far as it appears practicable to do so, consult-

(a) the governing body of the institution, and

(b) where there is power under a regulatory instrument to make the instrument, and that power is exercisable by persons other than the governing body of the institution, the persons by whom the power is exercisable.""

83D: Schedule 12, page 91, line 22, at end insert-

" In section 30 (special provision for certain institutions), in subsection (1) for "section 29" substitute "sections 29 to 29C"."

83E: Schedule 12, page 91, line 36, at end insert-

"( ) in subsection (6)(e)(ii), for "27" substitute "27C or 33P";"

Amendments 83A to 83E agreed.

Amendment 84 not moved.

Amendments 84ZA to 84ZG

Moved by Lord Hill of Oareford

84ZA: Schedule 12, page 91, line 42, at end insert-

" In section 33I(2) (instrument and articles of government of sixth form college corporations)-

(a) in paragraph (a), after "requirements of" insert "Part 2 of";

(b) for paragraph (b) substitute-

"(b) subject to that, may make such other provision as may be necessary or desirable."

84ZB: Schedule 12, page 92, line 23, leave out paragraphs 14 and 15 and insert-

" For section 33L substitute-

"33L Changes to instruments and articles

(1) A sixth form college corporation may modify or replace their instrument of government or articles of government.

(2) A sixth form college corporation to which section 33J applies may do the things mentioned in subsection (1) only with the consent of the trustees of the relevant sixth form college."

For section 33N substitute-

"33N Proposals for dissolution of sixth form college corporations

(1) This section applies if a sixth form college corporation propose that the corporation should be dissolved.

(2) The corporation must publish details of the proposal, and such other information as may be prescribed, in accordance with regulations.

(3) The corporation must consult on the proposal, and take account of the views of those consulted, in accordance with regulations.

33O Dissolution of sixth form college corporations

(1) This section and section 33P apply if, after complying with section 33N, a sixth form college corporation resolve that the corporation should be dissolved on a specified date.

(2) "The dissolution date" means the date specified in a resolution under subsection (1).

(3) The corporation must notify the Secretary of State of the resolution and the dissolution date as soon as reasonably practicable.

(4) The corporation are dissolved on the dissolution date.

33P Dissolution of sixth form college corporations: transfer of property, rights and liabilities

(1) At any time before the dissolution date, the corporation may transfer any of their property, rights or liabilities to such person or body, or a person or body of such description, as may be prescribed, subject to subsection (4).

(2) The corporation may do so only with the consent of the person or body concerned.

(3) A transfer under subsection (1) has effect on the dissolution date.

(4) In the case of a sixth form college corporation to which section 33J applies, any property held by the corporation on trust for the purposes of the relevant sixth form college must be transferred to the trustees of the relevant sixth form college.

(5) Subsection (6) applies if a person or body prescribed, or of a description prescribed, under subsection (1) is not a charity established for charitable purposes which are exclusively educational purposes.

(6) Any property transferred to the person or body must be transferred on trust to be used for charitable purposes which are exclusively educational purposes.

(7) Subsection (6) does not apply to property transferred to the person or body by virtue of subsection (4).""

84ZBA: Schedule 12, page 94, line 8, leave out paragraph 17 and insert-

"17 Section 49A (guidance about consultation with students and employees), as it has effect in relation to England, is repealed."

84ZC: Schedule 12, page 94, line 13, at end insert-

" Section 51 (publication of proposals) is repealed."

84ZD: Schedule 12, page 94, line 24, at end insert-

"( ) In subsection (7), after "include" insert "- (a)" and at the end insert-

"(b) a direction requiring a governing body to make a resolution under section 27A(1) for the body to be dissolved on a date specified in the direction.

(7A) A governing body to which a direction such as is mentioned in subsection (7)(b) is given is to be taken for the purposes of section 27A(1) to have complied with section 27 before making the resolution required by the direction.""

84ZE: Schedule 12, page 95, line 26, at end insert-

"( ) In subsection (7), after "include" insert "- (a)" and at the end insert-

"(b) a direction requiring a governing body to make a resolution under section 33O(1) for the body to be dissolved on a date specified in the direction.

(7A) A governing body to which a direction such as is mentioned in subsection (7)(b) is given is to be taken for the purposes of section 33O(1) to have complied with section 33N before making the resolution required by the direction.""

84ZF: Schedule 12, page 96, line 22, at end insert-

" In section 88 (stamp duty)-

(a) for "27" substitute "27B, 27C";

(b) for "33N" substitute "33P".

In section 88A (stamp duty land tax)-

(a) for "27" substitute "27B, 27C";

(b) for "33N" substitute "33P"."

84ZG: Schedule 12, page 96, line 23, leave out paragraph 32 and insert-

" (1) Section 89 (orders, regulations and directions) is amended as follows.

(2) In subsection (2)-

(a) for "22, 29(6) and (8)" substitute "22ZA(1) and (4), 29A(3)(c), 29C(4)";

(b) after "33A(5)(b)" insert "33J(2), 33K(1),";

(c) omit "or section 33L".

(3) In subsection (3), after "subsection (3A)" insert "or (3B)".

(4) After subsection (3A) insert-

"(3B) An order falls within this subsection if-

(a) it is an order revoking (wholly or in part) an order under section 15 or 16 and is made by virtue of section 27A(4), or

(b) it is an order revoking (wholly or in part) an order under section 33A, 33B or 33C and is made by virtue of section 33O(4).""

Amendments 84ZA to 84ZG agreed.

Amendment 84ZH had been withdrawn from the Marshalled List.

Amendments 84ZJ and 84ZK

Moved by Lord Hill of Oareford

84ZJ: Schedule 12, page 96, line 26, after "(1)" insert "-

(a) after the definition of "further education" insert-

""further education corporation in England" means a further education corporation established to conduct an institution in England;

"further education corporation in Wales" means a further education corporation established to conduct an institution in Wales;";

(b) "

84ZK: Schedule 12, page 96, line 29, after "(index)" insert "-

(a) after the entry for "further education corporation" insert-

"further education corporation in England section 90(1)
further education corporation in Wales section 90(1)"

(b) "

Amendments 84ZJ and 84ZK agreed.

Amendment 84ZL

Moved by Lord Hill of Oareford

84ZL: Schedule 12, page 96, line 31, leave out paragraph 35 and insert-

" For Schedule 4 substitute-

"SCHEDULE 4Instruments and articles of governmentPart 1General

1 In this Schedule-

"instrument" means an instrument of government or articles of government;

"the institution" means-

(a) in the case of a further education corporation, the institution which the corporation are established to conduct;

(b) in the case of the governing body of a designated institution, the institution;

(c) in the case of a sixth form college corporation, the relevant sixth form college.

Part 2England

2 This Part applies in relation to-

(a) a further education corporation in England;

(b) the governing body of a designated institution in England;

(c) a sixth form college corporation.

3 In this Part "the body" means-

(a) in the case of a further education corporation or a sixth form college corporation, the corporation;

(b) in the case of a governing body, the governing body.

4 An instrument must provide for-

(a) the number of members of the body,

(b) the eligibility of persons for membership, and

(c) the appointment of members.

5 (1) An instrument must make provision about the procedures of the body and the institution.

(2) In particular, an instrument must specify how the body may resolve for its dissolution and the transfer of its property, rights and liabilities.

6 (1) An instrument must make provision for there to be-

(a) a chief executive of the institution, and

(b) a clerk to the body.

(2) An instrument must make provision about the respective responsibilities of the body, the chief executive and the clerk.

(3) The responsibilities of the body must include-

(a) in the case of a sixth form college corporation to which section 33J applies, the preservation and development of the educational character and mission of the institution and the oversight of its activities;

(b) in the case of any other sixth form college corporation, a further education corporation or a governing body, the determination and periodic review of the educational character and mission of the institution and the oversight of its activities;

(c) in any case, the effective and efficient use of resources, the solvency of the institution and the body and the safeguarding of their assets.

7 An instrument must require the body to publish arrangements for obtaining the views of staff and students on the matters for which the body are responsible under paragraph 6(3)(a) or (b).

8 An instrument must permit the body to change their name with the approval of the Secretary of State.

9 An instrument must specify how the body may modify or replace the instrument of government and articles of government.

10 An instrument must prohibit the body from making changes to the instrument of government or articles of government that would result in the body ceasing to be a charity.

11 An instrument must provide for-

(a) a copy of the instrument to be given free of charge to every member of the body,

(b) a copy of the instrument to be given free of charge, or at a charge not exceeding the cost of copying, to anyone else who requests it, and

(c) a copy of it to be available for inspection at the institution on request, during normal office hours, to every member of staff of, and student at, the institution.

12 An instrument must provide for the authentication of the application of the seal of the body.

Part 3Wales

13 This Part applies in relation to further education corporations in Wales.

14 Provision made by an instrument in relation to the appointment of members of the corporation must take into account the members who may be appointed by the Welsh Ministers under section 39 of the Learning and Skills Act 2000.

15 (1) An instrument must provide for-

(a) the number of members of the corporation,

(b) the eligibility of persons for membership, and

(c) the appointment of members.

(2) An instrument may provide for the nomination of any person for membership by another, including by a body nominated by the Welsh Ministers.

16 An instrument must provide for one or more officers to be chosen from among the members.

17 An instrument may-

(a) provide for the corporation to establish committees, and

(b) permit such committees to include persons who are not members of the corporation.

18 An instrument may provide for the delegation of functions of the corporation to-

(a) officers or committees, or

(b) the principal of the institution.

19 An instrument may provide for the corporation to pay allowances to its members.

20 An instrument must provide for the authentication of the seal of the corporation.

21 An instrument must require the corporation to-

(a) keep proper accounts and proper records in relation to the accounts, and

(b) prepare in respect of each financial year of the corporation a statement of accounts.

22 An instrument must-

(a) provide for the appointment of a principal of the institution, and

(b) determine which functions exercisable in relation to the institution are to be exercised by the corporation, its officers or committees and which by the principal of the institution.

23 An instrument must make provision about the procedures of the corporation and the institution.

24 An instrument must provide-

(a) for the appointment, promotion, suspension and dismissal of staff, and

(b) for the admission, suspension and expulsion of students.

25 An instrument may make provision authorising the corporation to make rules or bye-laws for the government and conduct of the institution, including in particular rules or bye-laws about the conduct of students, staff or both.""

Amendment 84ZLA (to Amendment 84ZL) not moved.

Amendment 84ZL agreed

Amendments 84ZM and 84ZN

Moved by Lord Hill of Oareford

84ZM: Schedule 12, page 96, line 33, at end insert-

" (1) LSA 2000 is amended as follows.

(2) In section 110 (secondary education), in subsection (5), for "51(3A)" substitute "16A(2)".

(3) In section 143 (further education sector: designated institutions), in subsection (6)(b), for "section 29" substitute "any of sections 29 to 29C"."

84ZN: Schedule 12, page 96, line 33, at end insert-

" In section 22 of the Further Education and Training Act 2007 (consultation of further education institutions), in the new section 49A to be inserted into FHEA 1992 in relation to Wales-

(a) in subsection (1)-

(i) after "further education sector" insert "in Wales";

(ii) for "appropriate authority" substitute "Welsh Ministers";

(b) omit subsection (3)."

Amendments 84ZM and 84ZN agreed.

Amendment 84A

Moved by Baroness Jones of Whitchurch

84A: After Clause 52, insert the following new Clause-

"Academies: school teachers' qualifications

(1) EA 2002 is amended as follows.

(2) In section 133 (requirement to be qualified), in subsection (6) (schools to which this section applies), after paragraph (b) insert-

"(c) an Academy, including a free school,

(d) a city technology college, or

(e) a city college for the technology of the arts."

(3) At the end of subsection (6) of that Act insert-

"(7) Nothing in subsection (6) should prohibit a school's ability to employ non-qualified individuals to provide educational support in relation to non-'specified work' in so far as it would positively contribute to pupils' educational development".

(4) Any individual employed under the terms of subparagraph (3) above shall be supervised in their work by a qualified teacher."

4:15 pm
Photo of Baroness Jones of Whitchurch

Baroness Jones of Whitchurch (Labour)

My Lords, Amendment 84A has a simple but fundamental aim-that is, to ensure that all teachers practising in the classroom have qualified teacher status. Until recently this was the case in all state schools but the Government have decided that this will not be a requirement for teachers in free schools. This was debated at length in Grand Committee and the need for teachers to be qualified, as I recall, had virtually unanimous support. For many noble Lords it was what I would colloquially describe as a no-brainer. During the debate the Minister said that the Government's reasoning for this was,

"simply intended to allow the possibility of greater innovation at the edges of the maintained sector".-[Official Report, 14/9/11; col. GC 227.]

He repeated this argument in a letter to me of 25 October. I do not think that many of us were convinced by this argument at the time. It was, with respect, completely lacking in evidence or justification.

The Minister then went on to argue in his letter that a skill in measuring the progress of each pupil and the delivery of good-quality subject materials were important elements of teacher training but that he,

"believes it is possible for a teacher to be proficient in them without having attained Qualified teacher Status".

My simple challenge back to him is: how would he know? How would parents or even head teachers know if these people were truly up to scratch?

This issue goes to the heart of the professional standing of the teaching profession. Whereas most sensible participants in this debate-including the teachers-would argue that the challenge is to drive up standards in the classroom and increase professionalism, the Government seem to be pulling in the opposite direction.

In our earlier debate, a number of noble Lords contrasted the status of teachers with other professions. For example, we wondered whether allowing doctors in certain hospitals not to be qualified would enable "greater innovation". We wondered what concerns colleagues would have about the standard of patient care in those circumstances and what would be the impact on successful treatment rates. Of course, you can make a similar analogy with other professions.

It is difficult to see why positive innovation is more likely to come about where people are not trained to the required standards in their profession. It is all too easy to see, in the case of unqualified teachers at free schools, how cohorts of children could be failed by teaching quality below the expected level of a qualified teacher.

Our amendment in part is about the Government showing to the teaching profession that they value and want to build on the professionalism in the sector. More than that, it is about ensuring standards in what we believe is one of the most important jobs that it is possible to have. It is in the interests of us all that the next generation is taught to a high standard by trained professionals, and it will do us all a disservice if it is not.

As I mentioned in Grand Committee, the reasoning for the Government's position is unclear. I noted that the Secretary of State had said of free schools:

"We want the dynamism that characterises the best independent schools to help drive up standards in the state sector ... In that spirit, we will not be setting requirements in relation to qualifications".-[Hansard, Commons, 15/11/10; col. 623.]

I question the presumption that a highly performing independent school is the result of the fact that its teachers do not need to be qualified, although of course many already are. Surely the more significant factors are those such as selection processes and smaller class sizes.

If the Government are serious about building on the successes of the previous Government in raising standards of teaching; if the Prime Minister and the Deputy Prime Minister are serious when they say in the White Paper that is indeed called The Importance of Teaching,

"no education system can be better than the quality of its teachers";

and if the Government seriously want to learn from international best practice, about which the OECD says:

"many of the high performing countries share a commitment to professionalised teaching",

how can the Government at the same time say that in some of our schools teachers do not need to be qualified to teach? As the noble Lord, Lord Storey, argued in Grand Committee, it is almost Dickensian.

As colleagues rightly said in Committee, we are not saying that everyone who stands in front of a class should be qualified. I recognise that, for example, trainee teachers are and should be permitted to teach as part of their training. I accept the points made that people without teaching qualifications, such as teaching assistants, add real value to the classroom and make a difference to children's lives. What is important and what our amendment aims to achieve is that the progression of each pupil should be overseen by someone with a teaching qualification.

It is a basic right of pupils to be taught by a qualified teacher. Parents expect it and the teaching profession seeks it. There is no research or evidence to show that pupils will benefit from this change. I hope noble Lords will feel able to support our amendment. I beg to move.

Photo of Baroness Massey of Darwen

Baroness Massey of Darwen (Labour)

My Lords, I am seriously concerned about the issue of having non-qualified teachers in a classroom. Qualifications for teaching are not just about being qualified to teach maths, science or languages; they are about having some knowledge of child development. It is crucial for teachers to learn about how children grow, how they learn to think and how they learn at different ages. It is different if a parent or grandparent goes into a classroom to hear children read or other such activities. Those people are under supervision and fit in with what the class is doing anyway. I would not like someone who was not qualified to be teaching chemistry or physics. It seems quite a dangerous thing to happen. I certainly would not allow into my house an electrician or a plumber who was not qualified. Why would we allow people who are not qualified to teach children? My young nephew recently trained to be a soccer coach for young people. He had to learn not only the skills of teaching soccer but various techniques of teaching as well as first aid. Having non-qualified people in classrooms could miss out all those extra things that teachers learn.

I have some questions for the Minister. How will these non-qualified teachers be recruited? Who will they be? Supposing that they were predominant in a school, what kind of education would those children receive? This is a very serious issue. I look forward to the Minister's response.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

My Lords, the noble Baroness, Lady Jones, used the analogy of unqualified doctors in a hospital. While we are not talking about life and death here, we are talking about life chances. I know that the Government have an enormous respect for teachers and a genuine intention to improve the professionalism of teachers right across the board, but I have some questions about how this particular freedom would work. For example, would there be a maximum percentage of people teaching children in a free school who did not have a teaching qualification? How would the number of people teaching in a free school without a qualification be monitored? Would there be continuous professional development to make up the gap identified by the noble Baroness, Lady Massey, when someone might be particularly good at IT or a particular modern language, which have been used as examples by the Government, but had not had that training in child development and classroom management-another very important thing taught in teacher training? How will the Government monitor this and make sure that the standard of what the children in schools receive is of the highest? That is what matters in the end. It does not matter so much what is written on a piece of paper as long as those children who walk through that school door get a good offer from the school.

I hope that my noble friend the Minister will answer all those questions. It has been said that this is envisaged to operate in the margins of maintained schools. That may be all very well, because plenty of different people who come in to contribute to children's experience in schools do not have qualified teacher status. We all understand the importance of the direction of teachers and their overall experience in the school. I would not want them to be operating any more than in the margins of the teaching workforce in any particular school. I hope that my noble friend the Minister can answer those questions.

Photo of Baroness Perry of Southwark

Baroness Perry of Southwark (Conservative)

I yield to no one in recognising the importance of the right kind of training for teachers and I have spent a great deal of my life in working on trying to get the training right. It is extremely important for the vast majority of teachers that they have been trained and that they understand the things that the noble Baroness mentioned, such as child development, and have an understanding of how children learn, and so on. But I also think it extremely important that we have some flexibility for the outstanding person who brings a particular gift, talent and knowledge. I remember a case some years ago, I think in the 1990s, of a professor of mathematics, an outstanding mathematician, who had taken fairly early retirement and decided that he would like to teach younger children, in a secondary school, to pass on his passion for mathematics to young people. He discovered that because the regulations said that he had not been trained as a teacher he could not do that. It is a mistake-a mistaken idea of what is needed in a school.

As my noble friend Lady Walmsley has said, I would want the overwhelming majority of teachers to have been trained, but it is important to have flexibility to bring in the right kind of person to fill a niche in a school, someone who can bring perhaps a very special talent and range of experience, which would be exactly what the school needed and would hugely contribute to children as they go through their schooling.

4:30 pm
Photo of Lord Knight of Weymouth

Lord Knight of Weymouth (Labour)

My Lords, this is an important amendment and it is important for the Minister to respond to the questions that have been raised. When the Government were first formed, they made great store of talking up the importance of teaching. Indeed, the title of the first White Paper that the new department published was The Importance of Teaching. Just now, I looked up the discussion document on teacher training published in June this year, where the Secretary of State, Michael Gove, begins his foreword:

"If we want to have an education system that ranks with the best in the world, then we need to attract the best people and we need to give them outstanding training".

Clearly, if we believe what the Secretary of State is saying on that aspect of the Government's policy, the Secretary of State understands the importance of trained, qualified teachers.

I listened carefully to what the noble Baroness, Lady Perry, said in preceding me and it is important to offer people the opportunity to come in with other expertise and knowledge. However, there are ways of doing that while still preserving the importance of qualified teachers. For example, it should be easier for people to become qualified and to train on the job in terms of pedagogy. What I would not want to see is this opening the door to a sort-of "Jamie's Dream School" approach. Just because you are brilliant in your field-you might even be a brilliant noble Lord-it does not mean that you are necessarily going to be a brilliant teacher. I think that those of us who watched any of the episodes of "Jamie's Dream School" will have been appalled at times by the inability of some of those people, brilliant in their subject, to relate to children and to teach them. It needs some training so, yes, we should allow some of those brilliant people to enter the teaching profession but we should also allow them an opportunity to train and gain pedagogical understanding as they do so, under the supervision of a qualified teacher. That is what this amendment offers.

I am concerned that as the free school policy develops, it is being informed by a belief on the part of some in the department that if it works in independent schools, it must work in free schools and in the maintained sector-because independent schools can have non-qualified teachers, it must be fine. We have heard the parallels with health, for example, and about whether it is fair to presume that if I bowl up to a hospital and it has let somebody practise, it will be all right and it does not really matter whether they are qualified. I do not like that idea. I would not trust someone to treat me as a medical practitioner unless they were qualified and I would not want to trust my children to a teacher unless that practitioner was qualified.

Many or most independent schools do a great job but they do that with a very narrow set of pupils. I know that if my friends in the Headmasters' and Headmistresses' Conference were listening, they would be shouting at me but it is fair to say that it is often the case that those pupils are from fairly narrow backgrounds and do not, by and large, have quite the same behavioural challenges or some of the obstacles that have to be overcome in the maintained sector. I would be looking for training to inculcate those sorts of skills in teachers.

This is a good amendment. It seeks to give some guarantees on quality. We have had debates during this Report stage on the weakening of admissions and on some schools being exempted from inspection by Ofsted. We seem consistently to be weakening some of the measures and guarantees of quality in order to pursue and make a success of this free school policy in terms of numbers and flexibility. If we are to go with the free-market approach to education, we need to hang on all the more tightly to guarantees of the quality of the workforce, the quality of the inspection and fair admissions. We have also talked about fair funding. In the end, I will always come back to this in debates on this Bill: I fear that unless we can give some guarantees about the workforce being qualified, we will lose quality in some of these free schools.

In the United States, some of the charter schools were set up with the best of intentions by parents who were dissatisfied with what was going on locally. They might think, "Well, I'm okay as I have done a bit of home education myself. I'll rock up and teach-it'll be fine". They are very well intentioned, and it might be fine for their kids, but I am not persuaded that it is fine. The experience of so many charter schools in the United States is that it is not fine; so many of them have failed. There are some great ones, but many of them are not great. I do not want to take that risk in this country.

Photo of Lord Northbourne

Lord Northbourne (Crossbench)

My Lords, this suggests that teaching is not entirely about qualifications; it is also a gift of God. However, that was not what I intended to ask. I wanted to ask the mover of the amendment what is meant by "non-specified work"? I am concerned -so are the Government, and indeed we should all be concerned-about, for example, those who do not have a tendency to be very successful in academic qualifications and who need to get fulfilment in life from their work, or from other skills. Why should not someone be taught to use a lathe by someone who is brilliant at using a lathe, rather than by someone who has an academic education? Or perhaps I have got it wrong.

Photo of Lord Sutherland of Houndwood

Lord Sutherland of Houndwood (Crossbench)

My Lords, this is an amendment about professionalism, and I think everyone who has spoken supports the importance of professionalism. I commend the Government for what they have done in this area already, as well as the previous Government, as important things were done then.

However, I have reservations about a universal requirement for a particular kind of qualification. If we take the example of health, I would not mind being nursed by a nurse who was not a graduate, although actually these days, that does not seem to be on. I do not want to push that analogy at all, but to point up the remarks of the noble Baroness, Lady Perry: there may be exceptions. There may be individual cases that, if we were too rigorous, would be excluded. However, the question-which I believe has just been raised -is of proportionality, and whether it can become disproportionate in, for example, free schools.

There is a real danger there, and I have already expressed worries about inspection and exemption from inspection in these areas, which is why I think the questions raised by the noble Baroness, Lady Walmsley, are fundamental. I approve of the use of the word "normally" here, and I wish it was in more legislation, but "normally" must then be monitored. I hope there are clear answers to the questions that she has asked.

Photo of Lord Storey

Lord Storey (Liberal Democrat)

My Lords, I have said before in this House that the most important thing for a student is the quality of the teacher-not the qualifications, necessarily, but the quality. There can be the best buildings, the best resources, but unless there is quality teaching, then that child will not be able to make the progress that they deserve. If you have poor teaching and a poor teacher, that child loses the year, and the year can never be repeated. It is lost for good.

Since I have come to this House, the one thing that has struck me in education debates is that in every speech and contribution I have heard, the child is at the centre. I have felt quite emotional, to be honest, about the care that has come to me from the comments that people have made. We had a debate on special educational needs, and I was absolutely stunned by the remarkable contributions from everybody in this House.

However, one thing said constantly in that debate was that it needs to be about training, and about understanding the child. You cannot just put anybody in and expect them to be able to teach, understand, and relate to the child. It has to be a whole package. That is not to say that everybody must be a qualified teacher. There are examples of people who have a natural gift for teaching but are not qualified. How do we make that system work? Well, we have a system presently that allows that to happen.

I speak from practical experience. At the tail end of the summer term, I had a situation in my school where a teacher left. Working in that classroom was a teaching assistant; an advanced, higher-level teaching assistant, who was-to use an expression-"stunning". The pupils thought the world of him. Being a conscientious, thoughtful person, I checked with my local authority, which said, "Yes, as long as he has a higher-level qualification and you're happy with him, he can take the class", which he did for three weeks. He was fantastic. The children progressed. I have to say, I would rather have had him than-no, perhaps I should not say that. He progressed and did incredibly well. He was also supported by the school and other teachers, who were able to compensate for any areas in which he needed to develop. As a result of that, he has decided that he will not just be a higher-level teaching assistant; he will go on to be a teacher.

There are occasions when you can put people who do not have the formal qualifications in the classroom, and they can do a remarkable job. My noble friend Lady Benjamin constantly reminds me that pupils from the Caribbean often need a very different type of teacher, and that maybe the qualities that we currently have in our teaching profession are not always able to deal with those situations. That is dealt with, again, by encouraging teaching assistants who are working with teachers in the school environment.

When the Minister replies I hope he will deal with the questions that have been asked by my noble friend Lady Walmsley. I also hope he will reflect on how we might combine both desires.

I do not have a problem with free schools. I remember the first free school, which was Scotland Road Free School in Liverpool in the 1960s. What I have a problem with is saying that you can have non-qualified teachers in an educational establishment. If free schools are to be successful, they cannot be seen to be on the margins. Parents will soon think, "Oh, these are inferior places. They haven't got any qualified support in those schools". They will not send their children to them once the initial idea has started.

I will make one further point. There are whole areas of teaching that, in a complex society and a modern world, people who work with children need to know about-safeguarding, for example. Are we saying that these adults who will teach in free schools will not have any training in safeguarding, or in the problems of special educational needs? The list goes on. We need to be absolutely sure that we get this right.

Photo of Baroness Morris of Yardley

Baroness Morris of Yardley (Labour)

My Lords, I also support this amendment, on which there is a fair degree of unanimity across the Chamber. My position is approximately the same as that of the noble Lord, Lord Sutherland. We do not want schools where everybody has the same qualification. Over the past 10 to 15 years, we have very much moved to having different qualifications in schools. Clearly, what we want is for someone to be qualified to do the job that we are asking them to do, and for people to know what they are qualified to do and what their training is. We have never had that in the past. We have been a one-qualification profession. We ought to be more like medicine and move away from that, to having a number of different qualifications.

We have a record of getting this right. The movement of bursars into the maintained sector has been hugely successful, as have the teaching assistants and higher-level teaching assistants to which the noble Lord, Lord Storey, just referred. Therefore, we are on a journey of trying to get this right. The issue that faces us now is: where do we go next? I should have thought that where we go next is to look at the evidence of what has worked so far, the skills that are needed in the school and what training is needed. I absolutely accept that there will be some individuals who have experiences and a skill set that teachers and head teachers will want to use in schools. Some of them, as the noble Baroness, Lady Perry, said, will be absolutely excellent in their field. They may have a skill set that teaching would go alongside.

There is a fair degree of unanimity across the Chamber over our vision of what we want schools to be like. Therefore, the question is whether the legislation that the Government are putting forward will arrive at that end. I do not think that it will. I cannot see why this big debate about how we get a qualified workforce-whatever the qualification may be-is being squashed into free schools. I would have thought the debate was bigger than yet another freedom that we can give to free schools. The debate is about the qualifications we need for all our schools, whether they be maintained schools, community academies or free schools. The Minister must address in his reply what this has to do with free schools. It has to do with all schools. I am not sure why he has cornered and corralled this debate into free schools. It is bigger than that.

My second point is that the noble Baroness, Lady Perry, did not go on to answer the really difficult question about her own solution: how do we guarantee that only those people who are expert, brilliant and have the teaching skills as well get into our schools? There is no mechanism in the legislation as it is put forward to guarantee that.

Our job as legislators is twofold, as a number of Members have said. It is to allow our children to benefit from people with different qualifications, but it is also to put some safeguards in, so that those who neither have those brilliant qualifications nor have a QTS are kept out of schools. Whereas the Government's amendment does not do this, the amendment that has been put forward by noble friend begins to do that. It acknowledges in the proposed new subsection (7) in the amendment that there will be people without QTS who can bring something to this business of education, but it offers a safeguard that even those people should be, in some form, under the supervision of somebody with a qualified teacher status. The noble Lord, Lord Storey, said that he managed this in his school last year, but the system and structure need to be managed. My plea to the Minister is to acknowledge the great progress that has been made on teacher workforce reform and to go along that road and not corral it into free schools in the name of extra freedoms for one group in schools. Our children deserve better than that.

4:45 pm
Photo of Lord Lucas

Lord Lucas (Conservative)

My Lords, the man that my noble friend Lady Perry was remembering was Tristram Jones-Parry-one of the finest headmasters Westminster School has ever had. When he retired he was not allowed to teach mathematics in a state school, although he had taught it at Westminster. This illustrates how fatuous the current situation is.

I am also worried about this amendment in terms of what the noble Lord, Lord Knight of Weymouth, was saying a few days ago on the way in which teaching will move as technology moves in. People outside teaching will become much more involved. There is a lot of demand from industry to get involved, say, in language teaching and make their staff available for language teaching. The situation is similar in technology. Certainly the teacher has a very strong role in supervising this, but some of the teaching will be done by people who are never going to be qualified; people who have no interest in becoming qualified and who are performing that function under the supervision of a qualified teacher.

My suggestion to my noble friend is that the best way to tackle the concerns that have been addressed around the House is to make sure that anybody who asks can see a full list of the qualifications of every member of staff in the school. In this way, whatever decisions are being made by the head will be made in public and will be decisions that he or she will have to justify. That seems to me the best way to combine safety with the sort of flexibility that will let some very good people teach, despite their lack of some particular qualification.

Photo of Baroness Warnock

Baroness Warnock (Crossbench)

My Lords, I support what the noble Lord, Lord Lucas, has just said. In the case of languages particularly, it would be losing an enormously fruitful possibility to forbid teachers of foreign languages to teach because they had no qualification. There are many people who come over to this country who would be very good teachers but have no qualification-a wife of somebody who is doing a professional job, for example-and they would be an extraordinarily good resource to be able to use. The question of supervision is, of course, enormously important. The other area where we would lose a great deal is that of music. A lot of professional musicians do not take a teaching qualification.

There are born teachers who love teaching and teach extremely well, but who do not want, or are too old to take, a teaching qualification. They should not be forbidden in our schools. We need lots of flexibility here. It is the attitude of the person to his or her pupils that is important, not a formal qualification. I strongly support what the noble Lord, Lord Lucas, has just said.

Photo of Baroness Benjamin

Baroness Benjamin (Liberal Democrat)

My Lords, many Afro-Caribbean families feel that their children are not being served well in schools. We all know that and it goes without saying. A lot of parents believe that the opportunity to have a free school is one advantage that will give their children an opportunity to have a fulfilled relationship in the classroom, as the noble Lord, Lord Knight, said. Having a teacher who is perhaps not fully trained is an opportunity to make sure that those young people who need just a bit of understanding and care can feel that the way that they are thinking and feeling is being embraced. Free schools have given them that opportunity, and if the teacher is not qualified-as we have heard from many noble Lords in the House-we will be doing a great service to those young people in our society who feel excluded in many ways.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I agree with the noble Baroness, Lady Morris, that this has been an extremely good and interesting debate, and I am grateful to all noble Lords who have spoken from a range of different perspectives, and for some of the advice that I have received, which is helpful. At issue here is, in some way, a distinction between quality and qualification. There is complete agreement that we want the highest possible quality; the difference of opinion is whether the only way that the highest possible quality can be secured is through a specific qualification. I think I sum the mood up accurately by saying there is a feeling that quality is not defined only by one specific qualification.

It is certainly the case that improving overall teacher quality is very much at the heart of what the Government are trying to achieve through their education reforms. I agree with what all noble Lords and the noble Baroness, Lady Jones of Whitchurch, have said about the importance of teacher professionalism. Across the piece, the Government are introducing a range of reforms to try and raise the status of the profession. We are reforming initial teacher training, trying to ensure that we attract more top graduates, strengthening teachers' powers and authority in the classroom, and streamlining performance management arrangements.

We think that qualified teacher status has an important part to play in the teaching profession. That is why, in March, we set up a review of teacher standards, led by Sally Coates, to make all teacher standards, including those that underpin QTS, clearer and more focused. The review recommended revised standards that will take effect from September 2012 and raise the bar for entry to the profession.

We certainly think that qualified teacher status has an important role in the system, but we think that it is possible to be an outstanding teacher without having QTS. A number of noble Lords spoke during our debate in Committee and again this afternoon about the value that individuals from a range of backgrounds, experience and expertise can bring to the classroom. It is true that under current arrangements such individuals can already bring their experience to bear in the classroom, but to a limited extent. Broadly speaking, they may only assist or support the work of a teacher with QTS and must be directed and supervised in doing so.

The core purpose of the free schools programme that lies at the heart of the issue is to make it easier for parents, teachers and others to set up new schools in response to demand from their local community for change in education provision in their area. That is the basis upon which free school proposers set out their educational vision. We want to give them the ability draw on as wide a pool of talent as possible to deliver that vision. If a free school believes that that means including among its staff a teacher who has a wealth of qualifications, experience and expertise, but who does not have QTS, we do not want to prohibit the free school from doing so.

My noble friend Lady Perry, the noble Lord, Lord Sutherland of Houndwood, the noble Baroness, Lady Warnock, and my noble friend Lady Benjamin all spoke persuasively about the need for some degree of flexibility. The kind of example that we have in mind would be that a free school might want to employ an experienced science teacher from the independent sector who has a strong track record of preparing pupils for top universities. That would be one example. We have a free school proposal from a group of independent schools that wants to set up a sixth-form college in Newham to try to get more children from disadvantaged backgrounds to go to top universities. My noble friend Lord Lucas mentioned another example in which the former head of Westminster School was caught by the rules. A free school might want to employ an engineer with a background in training and instruction to teach an engineering technical specialism.

Free schools know that recruiting high-quality teachers will make the biggest difference to the quality of education that they can provide for their pupils. Therefore, I believe that they will themselves want to ensure that the staff that they recruit have the right knowledge and skills, and that relates to the point that my noble friend Lord Storey made about how free schools will be accountable and what mechanisms will be in place to make sure that they want to employ the best possible teachers. As part of their application to the department to set up a free school, proposers have to set out how they will deliver the highest quality of teaching and leadership in their schools, and no school is allowed to proceed without robust plans for doing so.

Because they are new schools set up in response to parental demand, free schools are likely to have a particularly close relationship with parents, who, we believe, will hold them sharply to account for the quality of teaching. They will be subject to the same Ofsted inspection regime as all maintained schools. They will have a pre-registration inspection before they open and a full inspection by the end of their second year of being open.

My noble friend Lady Walmsley, with support from the noble Lord, Lord Sutherland of Houndwood, asked, importantly, how we would know what was going on. I would answer that, in part, by talking about the publication of results and parents holding to account, but it is also the case that staff employed in free schools who do not have QTS will be monitored through the school workforce census, which takes place once a year. The results of that will be published on the department's website and we will all be able to see the extent to which this is happening or not happening.

Photo of Lord Knight of Weymouth

Lord Knight of Weymouth (Labour)

Beyond saying that there is quite a lot of flexibility in the proposal, can the Minister tell us whether the publication of the number of unqualified teachers in free schools would feature on the Ofsted risk assessment that we talked about last week? If there were a large number of unqualified teachers in a free school, that would mean that Ofsted would be keeping a closer eye on them.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

I do not think that that would necessarily be the case. For that to be so, one would have to accept the premise that, for example, an extremely experienced science teacher with a long record of preparing children to go to university or someone with an engineering specialism was innately a greater risk to teaching standards than someone with QTS, and I do not believe that that is the case. However, we would have the data on the numbers. The early evidence from the first 24 free schools is that a minority are availing themselves of the freedom. We will see how that develops and, in response to the point raised by my noble friend Lady Walmsley, the information will all be out there in the public domain for people to see.

A particular concern was raised by my noble friend Lord Storey about safeguarding, and I hope that I can reassure him. Free schools will certainly need to have regard to the statutory guidance on safeguarding. The guidance says that all staff should undertake appropriate training. It also says that a senior member of the school's management structure should have lead responsibility for dealing with child protection issues and liaising with other agencies where necessary. Free schools, like any other schools, have a statutory duty to undertake CRB checks on all members of staff. Free schools are required by their funding agreements to appoint a SENCO and a designated teacher with responsibility for children in care who hold QTS.

The Government do not think that giving additional flexibility to a small group of schools for a particular reason is a new idea. When the previous Government introduced academies, for example, they gave them a number of freedoms, such as the one to depart from the national curriculum. I do not think that in essence this issue is different. It is a permissive measure. There are accountability measures and I think that safeguards are in place. I therefore ask the noble Baroness to withdraw her amendment.

5:00 pm
Photo of Baroness Jones of Whitchurch

Baroness Jones of Whitchurch (Labour)

My Lords, as other noble Lords have said, we have had a very good and wide debate on this issue. I ask noble Lords to read the wording of our amendment because it is not as stark as some people would have us believe and we have tried to craft the wording carefully. It is not saying that only qualified teachers can teach in the classroom. It says that people with all sorts of skills can come into the classroom-they can be inspiring leaders, or as the noble Lord, Lord Northbourne, said, they can be specialists in teaching children how to operate lathes. All those people have a role in the classroom, but the wording of our amendment is that they have to be supervised by a qualified teacher. We feel that that is vital because of the arguments that have been made around the Chamber this afternoon.

You can be the best specialist in the world at maths, science or whatever, but you need to have some teaching and education in child development, behavioural issues and the different ways that people learn, adapt and interact with each other and a whole range of SEN issues. I do not think that someone who has had a professional job outside teaching would necessarily understand or know about those issues. The issue, which is carefully spelt out in our amendment, is that those people should have a role but that they should be supervised by somebody with qualified teacher status.

At the moment the proposals are at the margin; we are talking only about free schools and it may apply to only a handful of teachers. What signal is that sending? As a number of noble Lords have said, if this is so wonderful-as the Minister said, let us access the greatest pool of talent-will the Government say, "Great, let us extend that beyond free schools"? That is a very dangerous road to go down because, as people have rehearsed round the Chamber this afternoon, the issue of professionalism and driving up standards should be at the heart of what we are doing. We should not be trying to undercut and undermine the profession by deprofessionalising it.

The core point that I put to the Minister, which he did not really answer, is: where is the evidence that unqualified teachers provide better education than qualified teachers? The Secretary of State has put great onus on this in a number of his speeches. He likes research and likes everything to be evidence based, but that strikes me as being a stab in the dark. There is no evidence that in the independent sector it is the fact that teachers are unqualified that drives up standards. I am not convinced from what the Minister has said that there will be sufficient monitoring. It is almost as if we are entering a wild experiment with no terms of reference, no end date and no assessment of whether the experiment has been successful. We are doing that at the expense of a generation of young people, whose education could potentially be damaged by this.

For all those reasons, the proposals are going in the wrong direction. Our amendment says that there should be a qualified teacher who oversees the work of what happens in the classroom. That is a perfectly reasonable thing to request and it is in all pupils' interests. I am not convinced by the Minister's argument this afternoon, and I beg leave to test the opinion of the House.

Division on Amendment 84A

Contents 174; Not-Contents 234.

Amendment 84A disagreed.

Division number 1

See full list of votes (From The Public Whip)

Clause 55 : Academies: consultation on conversion

Amendment 84B

Moved by Baroness Jones of Whitchurch

84B: Clause 55, page 45, line 40, leave out from "England" to end of line and insert "applies for an Academy Order, there must be a consultation on the question of whether the conversion should take place.

(2) The consultation must seek the views of such persons as the person carrying it out thinks appropriate, but must include the views of parents of registered pupils, registered pupils, school staff and the local authority."

5:17 pm
Photo of Baroness Jones of Whitchurch

Baroness Jones of Whitchurch (Labour)

My Lords, under existing legislation, before a maintained school can convert into an academy, its governing body must consult those it thinks appropriate on whether the school should convert into an academy. However, Clause 55 allows a school to convert into an academy with absolutely no consultation with the pupils, the parents of the pupils, staff, the local authority or other interested groups. Our amendment would require consultation before a school applies for an academy order and require that consultation to seek the views of four categories of stakeholders: parents, pupils, school staff and the local authority. We regard it as a matter of courtesy, democracy and common sense.

As we made clear in Grand Committee, we do not seek to set out in legislation a long list of everyone who should be consulted, but it is our view that any Secretary of State considering granting an academy order would need to be assured that the views of the four keys groups were being taken into account, so any consultation should be required to include them. Indeed, the Minister said to my noble friend in Grand Committee:

"I agree with the noble Baroness, Lady Hughes, that it is quite difficult to foresee situations where it would not be appropriate to consult the kinds of people that she mentions".-[Official Report, 14/9/11; col. GC 242.]

I wonder whether, on reflection, the Minister has come up with a possible situation in which it would not be appropriate to consult these four groups and, if not, whether he will concede that, in order for any Secretary of State to make a well informed decision, these groups should always be consulted.

I also agree with the concerns previously raised by the noble Baroness, Lady Walmsley, that under the new proposals one of the bodies allowed to carry out the consultation, apart from the school's governing body, is the organisation with which the Secretary of State proposes to enter into an academy arrangement. As she rightly pointed out, this is no guarantee of an objective or neutral consultation. We therefore believe it is important to build in some additional checks and balances to ensure that a new academy is truly desired by the local community. By requiring the consultation to include the views of these four key stakeholder groups-pupils, parents, staff and the local authority-those applying for an academy order will need to demonstrate to the Secretary of State that there is local demand for the conversion, not just from the organisation with which the Secretary of State has proposed to enter into academy arrangements but from the wider stakeholder community. If this clause was allowed to go forward unamended, it would be yet another example of those stakeholder groups being denied a voice.

I recognise that, strictly speaking, the granting of an academy order enables a school to convert into an academy only at a future time; it does not automatically trigger conversion. By denying the chance for parents, pupils, professionals and the community to have a voice before the academy order is made, to a large degree it presents them with a fait accompli. Indeed, our amendment would ensure that the key stakeholders were consulted on a timely basis so as to be able to influence a decision whether or not to apply for an academy order. It would mean that the Secretary of State would need to take account of those views when deciding whether or not to grant that order.

I hope noble Lords will recognise the sense and the democratic underpinning of this amendment. I beg to move.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

Perhaps I could say a couple of words now and obviously reply at greater length later. There are a couple of government amendments in this group.

Amendment 84C in my name is a technical amendment. It clarifies the Academies Act 2010 by removing any doubt about local authorities' funding powers in relation to academies. Under Section 6(2) of the Academies Act, a local authority must cease to maintain a school once it converts to academy status. This is because academies are funded directly by the Secretary of State. However, in certain circumstances, local authorities might still want or need to assist academies: for example, where an academy is part of a private finance initiative contract held by the local authority. When a PFI school becomes an academy, it remains part of the PFI contract and as part of that contract the authority makes regular payments to the contractor in respect of that academy. It meets these payments from a combination of sources: funding from individual schools' budgets, including a contribution from any PFI academies; revenue funding from the department; and funding from its own resources. When a PFI school becomes an academy, we ensure that the local authority is in a "no better and no worse" position in relation to the PFI contract than if it had remained a maintained school.

As I explained in my letter of 19 October to the noble Baroness, Lady Hughes of Stretford, a number of banks that finance PFI contracts have expressed concerns about whether local authorities have the legal power to make payments in relation to PFI academies. The Government believe that local authorities do currently have the power to assist academies financially or otherwise. However, we recognise the demand for this point to be put beyond doubt, which is what Amendment 84C seeks to do. The amendment clarifies local authorities' existing powers in relation to academies; it does not place any new requirements or duties on local authorities. In order to provide clarity as early as possible, the amendment to Clause 78 provides for this new clause to come into force on Royal Assent.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

My Lords, I apologise to my noble friend the Minister for standing up too soon.

I want to address the amendment in the name of the noble Baroness, Lady Jones of Whitchurch. Of course, this subject was discussed at very great length during the passage of the Academies Bill through your Lordships' House. I agree with the noble Baroness that it is good practice, prior to making an application, for the proprietors of an academy to consult all the groups she has mentioned, and probably many others too. All those groups would have a justified complaint to the school if they were not consulted. The Act says that appropriate groups should be consulted, and there is no question that all those four groups are appropriate groups.

However, I would like to ask the noble Baroness what evidence she has that over the last 12 months, say, academies have not been carrying out that best practice and have not consulted those very relevant and appropriate groups prior to making the application. If we are going to make a change, we should have the evidence that there is the need for a change. Perhaps she can supply that evidence when she responds, because I do not think there is any.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, as my noble friend Lady Walmsley has said, we debated these issues at length and amended the consultation requirements during the passage of the Academies Act, which was just over a year ago. The fundamental question today, as it was a year ago, is how much detail about consultation we should prescribe in statute. When we discussed consultation during the passage of the Academies Act, the noble Lord, Lord Adonis, shared with this House his experience of consultation on the academies programme. He argued that just because the detail of a process is not set out in statute does not mean that it does not happen in a comprehensive manner.

Like the noble Lord, Lord Adonis, this Government do not believe that minimal legislation leads to minimal consultation, which was the point made by my noble friend Lady Walmsley. Also like him, and like schools and head teachers, we believe firmly in the importance and value of consultation. The department's website contains advice on carrying out all stages of the academy conversion process, including consultation. A departmental official liaises with every converting school and among other things advises it on ways to ensure a fair and open consultation.

Ultimately, schools make the choice to convert and they are under a legal duty to carry out a reasonable consultation of appropriate persons. Given the variation in these circumstances, it is right that the school assesses, in carrying out its consultation duty, what is reasonable in its local community, rather than Ministers prescribing it from the centre. Once consultation is complete, it is the responsibility of the school to reflect on the responses and to decide whether to proceed with academy conversion. That will go ahead only with confirmation from the school to the department that it has carried out its legal duty to consult appropriate persons and that the school wishes to go ahead, having considered the consultation responses.

The noble Baroness raised two issues about whom to consult and when the consultation should take place. In relation to whom to consult, we think that schools can be trusted to assess who the appropriate persons are to consult according to the circumstances and that in those cases the appropriate parties, as my noble friend has just said, will include parents, pupils and staff. If we have concerns that consultation has not been adequate-for instance, if parents have not been consulted-these concerns will be raised and dealt with prior to the funding agreement being signed.

On the timing of the consultation, the noble Baroness pointed out that consultation should take place before a decision is made, and I agree. The consultation requirement in the Academies Act already reflects this principle. It requires that consultation should take place before a school is converted into an academy. As I think that the noble Baroness accepted, an application for an academy order is a procedural step and does not signify a decision that the school should become an academy. That does not take place until the funding agreement is signed, which may happen many months after the issuing of an academy order. With that in mind, both last year and still now, it seems right that the school can carry out its consultation and reflect on the responses to it right up until the point at which it decides to become an academy and signs the funding agreement.

We discussed consultation at length during the passage of the Academies Act but, as my noble friend Lady Walmsley has said, we have a key advantage now compared with when we last debated the issue a year ago. Our debate about the legal framework for consultation can now be informed by the experience of schools in implementing it. We have had around 1,100 academy conversions since the Academies Act was enacted. I would argue that for the noble Baroness, Lady Jones of Whitchurch, to ask the House to overturn the position it reached last year after a long debate, she would need to provide strong evidence that there is widespread disquiet about the consultation process. I do not think she has provided that evidence, and I think that that is because it does not exist. The department has had very few complaints from parents or other interested parties about the way that consultation has been carried out. This confirms my belief that the House got the issue right in the Academies Act 2010. I would therefore ask the noble Baroness, Lady Jones of Whitchurch, to withdraw her amendment.

5:30 pm
Photo of Baroness Jones of Whitchurch

Baroness Jones of Whitchurch (Labour)

My Lords, I thank the noble Baroness and the Minister for their responses. Several issues are fundamental to this. The first is: how can we be assured that the Secretary of State is in the position to know that a full consultation has taken place? The guidance to which the Minister refers is fine, but we are seeking something that is more of a checklist setting out some of the fundamental rights for certain groups, rather than just the issuing of good practice and guidance. We feel that local democracy on this issue is important.

Our amendment engenders bringing the consultation forward to an earlier stage. We feel that that is right because the evidence appears to be that people feel that once there begins to be a head of steam around a debate about whether there should be a conversion, even if it has not formally been made, it is nevertheless more difficult for local people to put a brake on it or to raise disquiet, or for them to have a voice that is heard.

We do not believe that we have gone into too much detail. The Minister said that they do not want long lists. I said at the outset that we, equally, did not want a long list, but we did want to reassure some of the key stakeholders about their role in all this. As I say, this is very much about our belief in local democracy.

The noble Baroness asked what evidence there was. I would say that that is something for the department to respond to. I am not in a position to collect evidence. I can say, anecdotally, that I know of parents and local authorities who feel that there has not been sufficient consultation. I think that in part the onus is on the department to measure the level of complaints, and the Minister could perhaps respond at some level on this.

I do not think there is anything wrong with our amendment. I do not think that it is too detailed, that it expects too much of the legislation or that it spells out too much detail about what should be required. We have identified only four key stakeholders. This is, to us, a matter of principle. It would give enormous reassurance to people in the locality that their views will genuinely have a voice, and on that basis I beg leave to test the view of the House on this matter.

Division on Amendment 84B

Contents 184; Not-Contents 218.

Amendment 84B disagreed.

Division number 2

See full list of votes (From The Public Whip)

Amendment 84C

Moved by Lord Hill of Oareford

84C: After Clause 56, insert the following new Clause-

"Academy orders: local authority powers

In section 6 of AA 2010 (effect of Academy order), after subsection (2) insert-

"(2A) Subsection (2) does not prohibit the local authority from providing financial or other assistance in respect of the Academy, including by-

(a) making payments in respect of some (but not all) of the expenses of maintaining the Academy,

(b) providing premises, goods or services for the Academy, or

(c) making premises, goods or services available to be used for the purposes of the Academy.""

Amendment 84C agreed.

Clause 60 : Staff at Academies with religious character

Amendment 85

Moved by Baroness Turner of Camden

85: Clause 60, page 49, line 1, at end insert-

"( ) In section 59(1) of SSFA 1998 (religious opinions etc. of staff), after paragraph (b) insert-

"(c) an Academy that is not religiously designated"."

5:44 pm
Photo of Baroness Turner of Camden

Baroness Turner of Camden (Labour)

I shall speak also to the amendments in my name with which Amendment 85 is grouped.

I am attempting to follow up something which I began in Committee: I am endeavouring to protect the position of teachers in religiously designated schools from having religious views and requirements imposed upon them which they may not support. I am a secularist but I agree with the rights of both the religious and the non-religious. I accept that faith schools exist and are provided for in our legislation. My amendments do not alter that.

I commended the previous Government when they first introduced academies that they also provided for the appointment of what is known as reserve teachers, who could be expected to teach religious education and instruction and to abide by the religious ethos of the school. They were, however, limited in number to one fifth of the teaching staff. The other teachers did not have to comply with this and there was no requirement that the head teacher should be a reserve teacher. It did not seem to me that these requirements under the Bill would apply to other schools, such as foundation or voluntary schools of a religious character, and my amendments in Committee were intended to do that. I have since studied what the Minister said in reply. I have had the opportunity, for which I thank him, of meeting him and his officials and I have made available to him a legal opinion supplied by the secular association. As a result, I have dropped some of the amendments I introduced in Committee and have attempted to concentrate on what I think spells out the best way of complying with the advice I have received and the requirements of European law.

The first amendment seeks to give explicit statutory protection to teachers in community schools that become academies from being required to teach religious education. Many teachers with decades of experience do not wish to teach RE and there is no reason why they should lose the protection afforded to them by this section of the School Standards and Framework Act because of a change of the type of school.

The next amendment, which is in two parts, makes it clear that while preference may be given in connection with the appointment, remuneration or promotion of teachers at a voluntary aided school on the basis of religious belief, this is only to the extent of it being justified as an occupational requirement having regard to the school's religious ethos. The second part provides that while termination or engagement of a teacher may have regard to compliance with the tenets of the religion involved, discrimination is nevertheless prohibited on grounds not allowed under our equality legislation, such as in relation to sexual orientation.

The third amendment will put into legislation the commitment that the Government have already given that academies which were originally voluntary controlled schools should go through a consultation process similar to that in the maintained sector before being allowed to gain staffing and governance arrangements similar to those in voluntary aided schools.

This may sound complicated because reference has to be made to legislation that already exists and the various schools concerned. However, basically it is quite straight forward. I want to ensure that teachers with no or perhaps different beliefs are not discriminated against as the Government and the previous Government provided quite specifically for faith schools to be able to discriminate in favour of teachers who share their religious outlook, but in line with specific arrangements and limitations on numbers, to which I have already referred. Otherwise, teachers will be recruited and employed on the basis of their ability to teach their particular non-religious subject and are no way discriminated against.

My impression when I met the Minister and his officials was that these views were not opposed by the Government. I hope therefore that my amendments can either be accepted-if the Minister accepts the ideas involved-or perhaps he could produce alternative wording. As I have already indicated, the advice I have received indicates that my wording is in line with our own equality law and European law.

Amendment 88 is grouped with my amendments and my noble friend will no doubt speak in favour of it. I fully support it. In the mean time, I beg to move.

Photo of Baroness Massey of Darwen

Baroness Massey of Darwen (Labour)

My Lords, I will speak to Amendment 88 in this group. I support my noble friend Lady Turner in her previous amendments. She has explained the issues very well and I know that she has had extensive consultation with the Minister on them. We have heard most, if not all, of her arguments before and I think that they are very powerful. I know that there is some sympathy for her arguments among various faith groups. While the issue is about religion, it is mainly, I think, about fairness and discrimination.

In Amendment 88, my chief concern is the fostering of segregation in schools on the basis of religion. The change proposed by the Education Bill will make voluntary-aided faith schools the most attractive option to religious groups seeking to set up schools because they will be the easiest to set up. This is especially so if the local authority is readily in favour of the school, in which case proposals would be extremely likely to succeed. It is hard to see how this change is justified in light of the drive towards free schools and the fact that free schools cannot religiously discriminate in admissions for more than 50 per cent of their intake. Surely this is a reflection that faith-based admissions criteria should be curbed, not increased. This will increase religious segregation in admissions, extend discrimination against staff of no religion and increase the number of schools teaching faith-based religious education. I believe, as does the noble Baroness, Lady Turner, that all schools should include and educate all pupils together so that they can learn from each other instead of being segregated on religious and other grounds.

Photo of The Bishop of Oxford

The Bishop of Oxford (Bishop)

My Lords, Amendment 85, proposed by the noble Baroness, Lady Turner, seeks to make it plain that religious criteria may not be used to employ staff in academies without religious designation or to make it obligatory to teach RE in such a school. That seems to me to be unexceptionable and I wonder why the amendment is needed. If it seeks to achieve a result that we would all agree with, it does not seem to me to be necessary. Like all independent schools, academies may use religious criteria in employment only when they are designated as a school of religious character or when a genuine occupational requirement, such as being a chaplain, is shown. Amendment 85 seems to me to be unnecessary at best and potentially confusing at worst.

In my view, Amendment 86 is more serious because it seeks to impose the genuine occupational requirement regime on to voluntary-aided schools, although strangely not on academies, as I read it. The occupational requirement is a substantially lesser power than that which currently pertains for VA schools and I believe that it is inadequate to protect these schools' faith-based ethos. Noble Lords will appreciate that the faith-based ethos of the school is central to its character and to its performance, which are closely linked. It is particularly important that the leadership of the school is on board with the foundation of faith, because from the leadership flow the shape and character of the school and from that character flow the performance and the standards of the school. We might also note that the commitment to the religious character of the school is necessary in order to fulfil the terms of the trust, which lies behind the school operating on that particular land. That is basic trust law, so we need to keep in line with that.

I assure noble Lords that the governors' powers of appointment are used with considerable flexibility, sensitivity and discretion. It is far from the case that all staff are from the relevant faith background. Schools want the best person-the best teacher-and the faith commitment of a teacher is only one of many criteria. Local factors are always relevant. I also think that the risks of discrimination are much exaggerated or overstated. I have been able to find hardly any evidence of discrimination in practice. Why would a teacher entirely opposed to the faith basis of a school want to teach in that school? The dual system ensures that, for teachers and other staff, there is always a choice of schools of a different character.

Amendment 86 also seeks to prevent religious reasons being used as a proxy for other kinds of discrimination. Sexual conduct is what the noble Baroness, Lady Turner, will have in mind. I am shocked at the very thought. Let me be absolutely clear: sexual orientation is not relevant and may not be taken into account in employment in a Church of England school. Sexual conduct can surely be taken into account in cases of alleged misconduct, and absolutely in the same way in relations between the opposite sex as the same sex. I therefore believe that Amendment 86 should be resisted.

Amendment 87 seeks to impose a consultation if Section 124AA is to be disapplied by the Secretary of State, thus enabling a VC converter academy to have the employment powers of a VA converter academy. We understand that the Secretary of State will require a consultation anyway as a matter of guidance or of regulation. That is surely fine. There would have to be a consultation if a voluntary-controlled school wanted to become a voluntary-aided school. However, I suggest that it would be better to leave that matter for guidance rather than for legislation, especially in the light of the requirement by the noble Baroness, Lady Turner, that the Secretary of State have regard-that strange phrase-to the consultation, because goodness knows what that will be seen to mean in later years. I believe that this amendment should also be resisted.

Photo of Lord Deben

Lord Deben (Conservative)

My Lords, I believe that these amendments should be resisted because they are discriminatory. I was fortunate enough to be able to pay for my children's education. I did so because I wanted my children to go to Catholic schools. I do not think that we should discriminate against poorer people who cannot make that choice. It is perfectly reasonable to choose that you do not want your child to go to a faith school, but to deny the right of people without the resources to choose a school in which the fundamentals are faith-based seems to me a retrograde action that is entirely unacceptable.

It is perfectly reasonable to have some categories of school in which this issue does not arise. These amendments seek to limit even more those categories that exist at the moment. I say to those who put them forward that there is a new kind of illiberalism, which is very determined to remove from parents what for many of us is the most important element in education: we want our children brought in the fear and love of our Lord. We should have that right whether we are rich or poor. After all, it is the church that started education in this country and it is the church that has upheld that education. It is a historic agreement between state and church that has enabled us to have a society in which secular people and religious people can live together in harmony. The increasing demand of those who want a society in which their particular-I have to say-arrogant determination that everybody shall be educated in their way is wholly contrary to the liberal society that we have created.

There used to be a very nasty phrase, "Scratch a liberal and you find a totalitarian". I am afraid that this is increasingly true in our society. People who claim to be liberal are determined that their liberalism shall-

6:00 pm
Photo of Baroness Whitaker

Baroness Whitaker (Labour)

I am in some difficulty, because I cannot find where in this group of amendments the right to choose which school children go to is taken away, to use the noble Lord's words, and where it is said that certain children have to be educated in their way rather than in the way the parents choose. Could he tell me which text he finds that in?

Photo of Lord Deben

Lord Deben (Conservative)

I listened with very considerable care to how the amendments were introduced by the noble Baronesses. In both cases, the suggestion was that the kind of schools where teachers' religious beliefs were taken into account, apart from the chaplain or the like, would be schools of which they disapproved because they felt that it was better for children to be educated in circumstances in which there was a wide range of teachers with a wide range of views. I am merely saying that I want a society in which parents can choose and do not have that dictated to them by those who think it would be better for them to have a particular kind of circumstance. I am pleading for that on the basis of discrimination. I do not wish to discriminate against the poor. I am pleading for it also on the basis of liberalism.

In a free society, people should have the choice to the widest possible degree. It is illiberal to say that a person's belief that a faith-based school is in some way-I think that the word was used, but I will not use it myself; I shall just say "restrictive", as it makes people unable to share in the rich variety of life. That is an unacceptable position in the sort of society that we have. Young people have a difficult enough time in any case in maintaining standards and values. They have a difficult enough time in any case upholding the faith in a society which is dedicated to its destruction, and parents and religious organisations, either Catholic or Anglican, wanting to make sure that they have the best possible opportunity, should be encouraged. These amendments make it more difficult and I therefore believe that they should not be supported.

Photo of Lord Avebury

Lord Avebury (Liberal Democrat)

My Lords, I have seldom heard a more hysterical and inaccurate speech than the one that we have just listened to from the noble Lord, Lord Deben, which is clearly based on a total misunderstanding of the amendments and of the motives of the people who tabled them. I do not think he can have heard what the noble Baroness, Lady Whitaker, said in her intervention-that Amendment 85 and the other two amendments have nothing whatever to do with the choices that parents make of the schools that their children will attend. I hope that he will think carefully about the remarks that he has made and, perhaps, hesitate on future occasions to leap in with the wild assertions that he made today.

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Baroness Garden of Frognal (Liberal Democrat)

I apologise to my noble friend, but under the rules of Report noble Lords may speak only once in the course of each amendment.

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Lord Avebury (Liberal Democrat)

I had no objection to the noble Lord intervening, if that is what he was doing.

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Lord Deben (Conservative)

I merely say to my noble friend that the point that I was making is that parents may wish to choose a school in which the restrictions on the choice of teachers expected under these amendments are not ones that they would wish. It is perfectly reasonable for them to choose those schools.

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Lord Avebury (Liberal Democrat)

No one is suggesting that there should be any restriction on the right of parents to choose whatever school they think is best for their children. The noble Lord's remarks are based on a total misunderstanding of the amendment and what the noble Baroness, Lady Turner, said. But perhaps I may move on to the remarks of the right reverend Prelate the Bishop of Oxford, who I thought said that these amendments were fine but unnecessary. I am hoping that he is in support of the amendments proposed by the noble Baroness, Lady Turner, because surely there may be teachers who are not entirely opposed to the faith basis of a school who belong to other religions or none but have a particular aptitude for mathematics, say, or geography, and are therefore suitable for those subjects in the school, although it has a religious ethos. He said, rightly, that the schools would want to choose persons who were best capable of teaching the non-religious subjects and that they would not wish to discriminate in making choices when appointing those persons.

I am afraid that we have made no more progress on the issues covered by the noble Baroness on religious discrimination than we did on collective worship since Committee, although, with the noble Baroness, I was grateful to the Minister for writing to us and entering into a detailed discussion with us in the interval between Committee and Report. The Minister will remember that he was handed a dossier of legal opinions, which the noble Baroness, Lady Turner, mentioned, including one commissioned by the Equality and Human Rights Commission that challenged the compatibility of the Schools Standards and Framework Act 1998 with the European Union employment directive. The focus of these opinions was Section 60(5). Looking back at the passage of this subsection through this House in 1998, I see that the original wording of the equivalent part of the Bill, then Clause 58(4), was entirely benign and unobjectionable. It provided that in a voluntary aided school of a religious character, no teacher of subjects other than religion would receive any less remuneration or be deprived of, or disqualified for, any promotion or other advantage by reason of his religious opinions or of his attending religious worship.

The amendments to that clause, to which we are now objecting, turned the original words on their head by saying that preference may be given, in connection with the appointment, remuneration or promotion of teachers at a voluntary aided school which has a religious character, to persons whose religious opinions are in accordance with the tenets of the religion or religious denomination of the school. Those amendments were drafted following a delegation to the Home Secretary led by the then right reverend Prelate the Bishop of Ripon and Leeds, who acknowledged in the House that the amendments had been,

"prepared in consultation with the Churches".-[Hansard, 4/6/1998; col. 576.]

He understandably expressed his delight that the churches were "completely satisfied" with the amendments then inserted. No other amendments were made by any other noble Lord.

Those proposals were made by the Church of England and accepted by the Government at the same time as the employment directive was being drafted in Europe to combat precisely that sort of unfair discrimination. They are the basis of the formal complaint lodged by the National Secular Society earlier this year to the European Commission, which I understand is still under consideration. If Section 60(5) is left alone, they may yet be the subject of litigation by teachers who consider that they have been treated less favourably than others in terms of their appointment, remuneration or promotion to posts involving the teaching of history, English or mathematics, for example, because they do not subscribe to the particular religion or denomination which gives the school its religious character. I suppose that the same would apply not only to Christian but also to Muslim schools, where a teacher might be discriminated against in the same way because he belongs to the wrong brand of Islam.

The then Government compounded the offence of undermining the directive by insisting, at the 11th hour, as a condition of their acceptance of the directive, that previous legislation, including in particular the School Standards and Framework Act, should be regarded as being in effect exempt from the new directive. The Government were so desperate for unanimous agreement, as was required, that they were able to force the Council of Ministers to accept their demands.

The noble Baroness, Lady Turner, has, on the grounds of pragmatism, gone only a modest way today to reverse these discriminatory 1998 amendments. I therefore appeal to the Government to recognise that these privileges granted to religious bodies create, as do all privileges, victims-those who would otherwise not have been disadvantaged. The innocent and undeserving victims of Section 60(5), which the noble Baroness seeks to replace in her Amendment 86, are teachers-there may be thousands of them-who are not of the faith of the publicly-funded school or academy where they teach or apply to teach subjects other than religious education.

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Lord Touhig (Labour)

My Lords, I have some concerns about these amendments, in particular Amendment 86 in the name of my noble friend Lady Turner of Camden and Amendment 88 in the name of my noble friend Lady Massey of Darwen. Amendment 86 would dilute the existing legislative protection which allows Catholic schools to give priority to Catholics when recruiting to any post, without the need to provide justification for doing so. That has been a long established practice and it is essential that such preference is given to ensure that the Catholic ethos, which is the whole basis of having a Catholic school, is allowed to continue and to be maintained and developed. I suggest to my noble friend that the proposed subsection (5A) in her Amendment 86 is unnecessary since schools with a religious character are already obliged to comply with the Equality Act 2010, which includes appropriate exemptions for such schools.

Amendment 88 in the name of my noble friend Lady Massey of Darwen relates to voluntary controlled schools only. There are no voluntary controlled schools in the Catholic sector but this amendment would affect Church of England voluntary controlled schools which convert to academy status. These schools, which currently admit only a certain proportion of children of faith, would be prevented from increasing that quota except in specific circumstances. My fear is that if my noble friend's amendment was incorporated into the Bill it would pave the way for imposing quotas on all schools of a religious character. I do not think that is reasonable, right or just. From the point of view of the Catholic sector, this would certainly limit the ability of Catholic parents to send their children to Catholic schools. For that reason, I could not support my noble friend's amendment.

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Baroness Garden of Frognal (Liberal Democrat)

My Lords, this debate allows us to return to the topic of faith schooling. As we have made clear in previous debates, the Government believe strongly in the role of faith schools in this country. As we have heard from my noble friend Lord Deben, faith schools existed before there was a state education system and have contributed a great deal to its development. As the right reverend Prelate the Bishop of Oxford set out, it is vital to faith schools that they are able to maintain their particular religious ethos and their ability to deliver the form of education which they have historically provided, and which parents want. We think the long-standing arrangements that provide for this are working well. The Government are therefore seeking to ensure that faith schools which seek academy status continue to have the freedoms they have previously enjoyed, subject to the same protections.

Turning first to the issue of faith staffing, I am aware that the noble Baroness, Lady Turner of Camden, and indeed my noble friend Lord Avebury continue to have concerns with aspects of Clause 60, which seeks to replicate the staffing regime in voluntary controlled schools on their conversion to academy status. We are grateful for the discussions which the noble Baroness had with my noble friend the Minister on these issues and hope that the detailed letter sent to her and to my noble friend Lord Avebury on 5 October provided some reassurance on this matter. My noble friend referred to that letter in the course of his comments. We agree with many of the sentiments expressed by noble Lords today. The issues are really therefore more technical ones, about how these sentiments can best be given effect in law.

We agree with the intention of the noble Baroness, Lady Turner, that staff in non-religious academies should be protected from discrimination on the grounds of religion, including from being asked to teach RE against their will. The purpose of religious education in a non-religious academy is to provide pupils with an understanding of the practices and beliefs of all the major religions represented in England. No teacher in such an academy could therefore be asked to teach RE according to a particular creed or in a way that would conflict with their conscience. We are not aware of any academies where the issue of having to deliver broad, non-denominational religious education has been a problem. However, should this happen, the provisions of the Equality Act 2010 mean that no teacher in an academy without a religious ethos can lawfully suffer less favourable treatment because of their religion or belief. The Government are satisfied that adequate protections are already provided by equalities and employment legislation, and therefore that a specific replication of Section 59 of the School Standards and Framework Act 1998 is not necessary.

Amendment 86 focuses on existing practices in voluntary aided faith schools. These are long-standing practices, which provide a common-sense approach to maintaining the religious ethos of faith schools and we see no reason to change them. Parents choosing to send their children to a faith school do so with the understanding that their children will be in an environment which reflects their religious principles. It is therefore right that voluntary aided schools are allowed to recruit staff to ensure they can provide such an environment. Regarding the second part of the amendment, I understand that there are fears that Section 60 of the SSFA could be used by a school as justification for discriminating against a teacher because of his or her sexual orientation. I very much hope and believe that no school would ever try and use a person's sexuality as a reason for employing or dismissing them, or for treating them any differently from any other member of staff. But let me be clear: the exception under the Equality Act 2010 is intended only to permit discrimination on the basis of religion or belief, not on the basis of any other protected characteristic such as gender or sexual orientation. Discrimination on the grounds of sexual orientation would quite simply be unlawful.

In relation to Amendment 87, we agree with the noble Baroness that no school, whether an academy or not, should be able to change from the staffing arrangements for voluntary controlled schools to those for voluntary aided schools without due process. The policy statement setting out how this clause will be used in practice, and which the House has already seen, clearly sets out the Government's intention that the Secretary of State will use this power only when a school can show evidence that it has carried out a reasonable consultation on a proposal to move from minority to majority faith representation on the governing body, as the right reverend Prelate set out in his remarks. Where the noble Baroness and I differ in opinion is on whether this requirement needs to be prescribed in legislation. The Government's preference is always to keep the detail in legislation to a minimum.

The noble Baroness, Lady Massey of Darwen, has proposed a new clause after Clause 60 which would seek to restrict voluntary controlled schools' admissions arrangements on conversion. At present, any maintained faith school is able to select up to 100 per cent of its pupils based on faith, subject to being oversubscribed. As noble Lords are aware, maintained schools converting to academies retain the school's current admission arrangements when they go through the conversion process. We want to ensure parity across faith schools in the maintained and academy sector. Conversion to academy status is not a means of changing admission arrangements at a school.

I am aware that the noble Baroness has concerns about what may happen to a school's admissions arrangements following academy conversion. It is of course possible, as in the maintained sector, that the academy trust may consider changing its oversubscription criteria. However, if an academy wanted to change its admission arrangements following conversion then, as in the maintained sector, consultation would be required and parents would be given an opportunity to object to those changes. We believe it is valuable for maintained schools and academies to have this flexibility to propose a change to their admissions criteria, should it be perceived necessary and valuable to do so. The noble Baroness's amendment would remove that flexibility for voluntary controlled schools that have converted to become academies, fixing their admissions arrangements to those that existed on the point of conversion. This would leave them unable to respond to changes in local communities-something that voluntary schools can do in the maintained sector.

I appreciate that the noble Baroness, Lady Massey, may have concerns that in the case of voluntary controlled schools, the admissions authority will change on conversion from the local authority to the academy trust. She may also be concerned that this will bring a different approach to admissions policies that would lead to a rise in selection on the basis of faith criteria. I hope I can provide some reassurance to the noble Baroness on this point. First, in terms of practicalities, I want to make clear that no school can select pupils on the basis of faith unless it is oversubscribed. Secondly, I want to underline that admission arrangements can be changed only following consultation with parents. We are also well aware of the views expressed by the Church of England on admissions, which expects Church of England schools to serve the whole community, rather than a particular section of it. That would suggest that academy conversion is unlikely to result in a sudden increase of faith-based admissions criteria. Finally, the conversion process ensures that voluntary controlled schools continue to have only minority church representation on their academy trust. It is not right to assume that they are likely to act to increase faith admissions.

Before I close, I would refer to a concern of my noble friend Lord Avebury about the School Standards and Framework Act 1998, and the European framework directive. We do not accept that there is a contravention of the directive. Article 4.2 of the directive provides that,

"Member States may maintain national legislation in force at the date of adoption of this Directive",

and it also allows for future legislation to allow differential treatment on religious grounds where it reflects national practices, and where there is,

"a genuine, legitimate and justified occupational requirement".

My Lords, I assure you, once again, that the Academies Act and the changes being made in this Education Bill seek only to maintain the status quo. I hope therefore, that the noble Baroness, Lady Turner, will accept my assurances, and I urge her to withdraw her amendment.

6:15 pm
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Baroness Turner of Camden (Labour)

I thank all the noble Lords who have contributed to a very interesting debate. Of course, a lot of it I did not agree with, including the strange argument produced by the noble Lord who said that I was seeking discrimination; the reverse is true, of course. I was hoping to get agreement from everyone that, while accepting that there are faith schools and that people have the choice to send their children to these schools if they wish to do so, we should ensure that people who do not necessarily participate in support for that faith are not discriminated against. I thought it was quite straightforward, and I am very glad that a number of people seem to agree with that view. I thank everybody who participated, particularly the noble Lord, Lord Avebury, who as usual produced his very strong arguments in favour of the position that I had taken up on the employment of teachers and so on.

I thank the noble Baroness very much for the assurances she has given me this afternoon. I am glad-and I had the impression when I met the Minister originally-that there was no opposition to what I was proposing, and that it was simply felt by me and other people that we wanted it in this Education Bill. Obviously, teachers will refer to the Education Bill as their basis, so to speak, so I thought it a good idea to have it all in the same Bill. In view of what the noble Baroness has said this afternoon, I simply thank her very much for the assurances that she has given, which will be on the record. I am very grateful for them. In those circumstances, I beg leave to withdraw the amendment.

Amendment 85 withdrawn.

Amendment 86 to 88 not moved.

Clause 62 : Academy admissions arrangements: references to adjudicator

Amendment 89

Moved by Lord Hill of Oareford

89: Clause 62, page 51, line 6, leave out paragraph (b)

Amendment 89 agreed.

Clause 67 : The apprenticeship offer

Amendment 89ZZA

Moved by Lord Young of Norwood Green

89ZZA: Clause 67, page 53, line 26, at end insert-

"( ) The Secretary of State will make available the apprenticeship offer, and will ensure that progress is made to ensure the offer is available, to all qualified persons by 2015."

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Lord Young of Norwood Green (Labour)

My Lords, I shall speak also to Amendments 89ZZAA, 89ZZAB, and 89ZZB. Before I get into the nub of the argument, I wish to remedy an omission. In Committee we failed to acknowledge the appointment of the noble Baroness, Lady Verma, and congratulate her on it. Better late than never; please accept our profuse apologies. I did make an extensive case in Committee-and the noble Baroness, Lady Garden, told me in an interval that it was verging on being too extensive-so she will be relieved to know that I will not repeat all the arguments. However, I believe these amendments to contain some very important principles.

To give some background: the first amendment is on the entitlement, committing the Government to make available an apprenticeship for all qualified young people in the 16 to 19 group by 2015, and is against the background of youth unemployment reaching record levels of nearly a million. Even if we take away those in full-time education, it is still historically a very high figure.

As I said in another debate recently, it is interesting that when young offenders were asked what one thing would contribute to changing their behaviour and way of life, a job, or the promise of a job, was probably the most influential factor. Again, as I have said previously, I welcome the Government's commitment to apprenticeships-I believe that to be genuine-but the current strategy is failing. Its delivery is mainly to adult apprenticeships-that is, those in the 25-plus age range. I do not denigrate that, in one respect, because it is a useful means of people re-skilling, but it does not address the very serious problem of youth unemployment.

If we look at the most recent statistics, we see a decline in the increase in apprenticeships from 17.5 per cent to 10 per cent for 16 to 18 year-olds, and from 34.3 per cent to 22 per cent for 19 to 24 year-olds. In the very area which I regard to be the most vital area of apprenticeships, we are seeing a significant slowing down. Again, I do not want to go over the whole economic case, but we believe that if the Government had adopted Labour's five-point plan to create jobs and growth, which includes a tax on bank bonuses to fund 100,000 jobs for young people, that would make a significant improvement.

Is it possible to meet the entitlement? Clearly, we believed it was, as a Government: we put it in the previous Apprenticeships, Skills, Children and Learning Act, and we made the commitment to achieve it in 2013. We recognise the difficult employment situation, which is why we have extended the target to 2015. Is it possible to achieve it? I believe the answer has to be yes.

When I looked at the Government's response to this question, I must admit that I found it to be very cautious-that is the kindest euphemism I could put to it. It says that the Government will make "reasonable efforts" to secure that employers participate in the provision of apprenticeship training for all persons. I should hope that they would. But "reasonable efforts" does not really convey that sense of urgency, commitment and determination that we need, and that the Government need, if they are to signal to young people out there that they are determined to do something about the appalling levels of unemployment; and determined to show to young people that if they are able to qualify for an apprenticeship, there will be one available to them.

What has to be tackled is the continuing failure by the majority of employers to understand the benefit of apprenticeships. They are still seen by many as a burden rather than a benefit, yet all the evidence shows that once employers get the message they understand the benefits that apprenticeships can bring. Can it be done? Yes, I believe it can. I have mentioned previously the use of group training associations and apprenticeship training associations. Both approaches need to be significantly expanded if we are to meet this challenge.

The Government must lead by example. They must signal to employers that if they bid for public procurement contracts-I am speaking here to Amendment 89ZZAA -they will be required to indicate how many apprentices they would be prepared to take on if they were awarded that contract. When we were in government we indicated that we would make that a stipulation. I cite two current examples, which I do not apologise for citing again. The Olympics was a good example of where we had to work very hard to ensure that employers understood that, if they were going to bid for an Olympic contract, apprenticeships were part of that bid. A significant number-more than 300-were achieved. Similarly, Crossrail indicated that it would be prepared to take on 400 apprentices. It can be done. There was no legal obstacle to it.

After a meeting with the Minister, I was told that there would be some kind of reconsideration. However, I have been advised verbally that that will not be the case and the Government are not prepared to make an absolute commitment on the question of public procurement contracts. That is a real missed opportunity. It gives employers the worst possible indication-that there is no determination by the Government to ensure that apprenticeships are seen as a key part of bidding for any public procurement contracts. When we think of the hundreds of billions of pounds of public money that go into these contracts, surely it is not too much to ask.

I have not heard many arguments against it. There was one to do with SMEs: I was told that the Government want to encourage small and medium-sized enterprises to bid for public procurement contracts. I agree with that; so do we. But why should we signal to SMEs, which, after all, are the very companies that we need to convince, that apprenticeships are somehow seen as a burden rather than a benefit? It gives the wrong signal and is, again, a missed opportunity by the Government.

I turn to government departments. If we ask this of employers, then the Government need to monitor their departments carefully-on a monthly basis, I would say. Again, they should make sure that it is not just adult apprenticeships that are being recruited into government departments. I know that there are restrictions on recruitment but the Government have said previously that apprenticeships would not be subject to that restriction. Therefore, I would welcome some positive statement on that.

That brings me to my last amendment in the group, Amendment 89ZZAB, which says:

"To gain the Investors in People award companies must demonstrate their commitment to apprenticeships".

I must admit, I was astounded when I went to an Investors in People awards ceremony a couple of years ago to find that one company that had achieved an award had no apprenticeships at all. It seemed to be a contradiction in terms, to label yourself an investor in people yet somehow fail to understand the benefit and importance of apprenticeships. Again, this is a perfectly reasonable requirement.

I indicated that I intended to be careful about the length of my contribution because some, if not all, of these arguments have already been made. I look forward to hearing the Government's response. I beg to move.

6:30 pm
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Baroness Verma (Conservative)

My Lords, I should like to speak to the government amendments in this group, tabled in the name of my noble friend Lord Hill. These amendments are the outcome of a great deal of work and good will on the part of the noble Lord, Lord Layard, and his colleagues, my noble friends Lord Wakeham and Lord Willis and the noble Lord, Lord Sutherland. I am extremely grateful for their efforts and pass on the thanks of my honourable friend the Minister for Skills, who heartily welcomes the amendments.

The amendments go to the heart of what needs to happen to expand the apprenticeship programme and create more opportunities. Amendment 89ZZB places a new duty on the chief executive of skills funding to "make reasonable efforts" to secure employer involvement in apprenticeship training for a broad class of people made up of all the groups covered by the apprenticeship offer. It also specifies that the guidance that the Secretary of State can issue to the chief executive must include guidance on carrying out that duty. It strikes the right balance between aspiration and pragmatism and complements the new duty on the chief executive of skills funding to prioritise funding, making the Bill even better legislation. Therefore, I urge your Lordships to support these amendments. I will of course respond to the noble Lord's questions and arguments if other noble Lords do not speak.

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Baroness Wall of New Barnet (Labour)

My Lords, I, too, have put my name to Amendment 89ZZA. I welcome the opportunity to extend the congratulations that my noble friend Lord Young extended to the noble Baroness. I am sure she will be an asset to the team.

I just want to add to more or less everything that my noble friend said in the context of apprenticeships. What surprises me is the semi-reluctant manner in which the Bill is worded. It does not reflect at all the ambitions that the Government talk about in the goals that they have set to achieve apprenticeships or, perhaps more importantly, the way employers constantly remind the Government of the importance of apprenticeships. I know that my noble friend Lord Young referred to employers who still feel that apprenticeships are a burden. However, there are hundreds of employers who see them as an advantage to their businesses and have a real commitment to them. They feel that the Government may be saying one thing but doing another. That is, to say the least, very unfortunate, since apprentices are the core of major businesses.

My own experience is in the engineering sector, as noble Lords will know. Outside that sector, apprentices are now becoming much more important to the hospitality sector and others. Therefore, it surprises me that mixed messages are going out, the result of which is very confusing. I welcome what the noble Baroness said in responding to my noble friend. However, stronger language could be used in the drafting of the Bill-words such as "encourage" rather than "take note of" or other such phrases that are used in the Bill. Anything that can strengthen the enthusiasm that is out there is important.

My noble friend made particular reference to and emphasised the young apprentices who are coming in. There are major issues around young people not being able to engage with apprenticeships, although there are lots of schemes. I am certainly involved in one-the SEMTA Sector Skills Council, through its academy-that encourages young people to come off the unemployment register and works with SMEs to place those young people in businesses. There is a quid pro quo relationship in how that might be funded to give those young individuals a start in life. All the stuff that we hear about-the disruption that is often attributed to young people, and to which they contribute-really can be helped by individuals having a purpose. One of the things that I have found, as I am sure other noble Lords have, is that when you talk to young people who are on apprenticeships, they are absolutely delighted. When they come through them, they are even more thrilled. This is not about attracting a certain type of young person; it is about opening it up to everybody, because it is an opportunity. It is also an ambition for a lot of people. The country, as well as employers, needs these people,

I want to make a couple of quick comments about the other amendments in this section and about the procurements issue in particular. My noble friend referred to our Government's intentions on this. Employers say to me and to people I work with, "You never see the Government doing this, yet we are being encouraged to do it". If you consider the relationship between the SMEs and prime businesses, you would consider those people to be part of the procurement process; they buy from them and prime companies demand that SMEs have apprentice-trained people inside their businesses to ensure the quality of the product that they are producing on their behalf. We need some matching up of words-I was going to say rhetoric, but that is probably too harsh, given the way the noble Baroness has come back to us-to ensure that we are talking the same language and, more importantly, that these people have that opportunity. It is the Government's policy to increase apprentices. We should be knocking at an open door when we have this discussion, rather than feeling that we are challenging them. I am delighted to be part of tabling this amendment.

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Lord Layard (Labour)

My Lords, I warmly welcome the government amendments that have been proposed, and I think the same goes for the noble Lords, Lord Wakeham, Lord Willis and Lord Sutherland, with whom I tabled a related amendment in Committee. Our aim was very simple; it was to ensure that there was a clear route to skill via an apprenticeship for young people who did not want to go down the academic route, and for this to become a well understood reality that the National Apprenticeship Service had a clear duty to make reasonable efforts to ensure that the provision was there for all who wanted to take advantage of it. That is what this amendment now proposes.

I would have preferred a stronger duty on the National Apprenticeship Service, like the noble Lords who spoke earlier. However, I believe that this government amendment is a major step forward, and I pay a warm tribute to John Hayes, the Minister in the other place who is responsible for this, for his passionate commitment to apprenticeships and his vision in proposing this new clause. It is a major improvement in the Bill and it will be a major improvement in our whole educational system for 16 to 19 year-olds, although an even better one would be that proposed by my noble friends.

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Lord Willis of Knaresborough (Liberal Democrat)

I support particularly Amendment 89ZZB in the name of my noble friend Lord Hill. I echo the comments of the noble Lord, Lord Layard, who has done a remarkable job in seeing this all the way through Committee and Report, and I compliment the Minister, and indeed his friend in the other place, John Hayes, for the way in which they have listened to the arguments. To have had an education Bill that did not actually mention apprenticeships was a mistake. It is always good when a sinner repents and comes forward with a confession. This is a confession that is worth noting. The Minister will go home happy tonight in that knowledge.

The whole move back towards an apprenticeship service is something that the previous Government should rightly be proud of. It was supported on all sides of the House, but it was an initiative that was long overdue. The fact that this week we have seen such a dramatic rise in the number of apprenticeships, despite the fact that we have a severe downturn in the economy-I will not say recession-is something that again we should welcome very strongly indeed. Apprenticeships are very much here to stay. I am delighted to be going up to Newcastle on 22 November to open a new apprenticeship centre organised by Siemens, which is trying to work with other employers in the north-east. That is the next step.

This is what this amendment is about: making best efforts. It is not good enough now just to say to employers, "The ball is in your court". We as a Government have to say, "How do we make sure that once the ball is played you participate in it?". Without employers, we do not have an apprenticeship system. I disagreed with the previous Government that the Secretary of State should have a duty on him or her to make sure that everybody who wanted an apprenticeship had one. You cannot do that unless you are going to force employers to take up the apprenticeship offer.

There is a real issue, as the Minister knows, with unemployed 16 to 19 year-olds, who at this point are the largest group of unemployed people. The growth in this group is going to accelerate at the end of this year when we will get another cohort of young people going on to the dole queues. It is important that we do not then take the apprenticeship offer and downgrade it. It is important that an apprenticeship has real status in our schools and our colleges. You do not do that if you start to take a substandard group of youngsters who do not have the skills to access apprenticeships properly. I ask my noble friend to consider the ways in which our FE colleges can start to engage with those youngsters who cannot even get on an apprenticeship because they do not have the skills, to entice them back into our brilliant colleges and to give them the sorts of skills needed to embark on a career that will be satisfying and rewarding. This is exactly what this nation needs: a new cadre of young people who have the technical skills to support our businesses once they start to burgeon again.

6:45 pm
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Lord Elton (Conservative)

I am encouraged to rise briefly after what my noble friend has just said. Something has been worrying me since I was Minister for Education in Northern Ireland back in the 1980s: the difference in esteem granted to academic and non-academic choices of our children going to school. It was forced on me because we were the part of the United Kingdom that did not sign up to the end of the 11-plus, so there was a very stark contrast. My job was to try to get parity of esteem between the grammar schools and the secondary schools. I have noticed that vein going on through education after the end of the 11-plus: the great esteem given to an academic career, even after it was the only entry into a white collar job.

It seems to me that the introduction and the success of the apprenticeship scheme is the answer to the problem that I was looking for 30 years ago. If we can give children, and in particular their parents and their parents' generation, the perception that it is as honourable and as rewarding to follow a practical career as an academic one, it will have a great effect on the way the young of the future see the choices before them. We will get a proper balance socially, academically and economically where it is needed. I am very glad to support my noble friend's amendment.

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Baroness Verma (Conservative)

My Lords, I want to respond to the amendments tabled by the noble Lord, Lord Young, and of course to respond to other noble Lords. I thank very much all noble Lords who have welcomed the government amendment. The previous Government, and the noble Lord himself, did a great deal to make the apprenticeship programme what it is today and gave us a strong foundation on which to develop our skills flagship even further. I would like to take this moment to reassure the noble Lord that the Government understand and share his concern for young people's interests that lies behind his amendment. Indeed, our own amendment, discussed just now, underlines that point. However, the original offer to which the noble Lord refers would have meant that the chief executive of skills funding would have had to find jobs with employers for all the eligible young people who wanted an apprenticeship. While it is a noble aspiration, in reality the Government and their agencies simply cannot tell employers whom they should employ.

The redefined offer in the Bill constitutes a more robust deal for the same young people because we know that we can deliver it. It sets the right balance between the employer-led nature of the programme and the need for support from government that young people can rely on.

The noble Lord's other amendments propose making apprenticeships a condition of government contracting and Investors in People status, as well as requiring the Government to publish numbers and targets for public sector apprenticeships. I understand why the noble Lord has tabled the amendments and that he wants to ensure that government does everything in its power to encourage employers to take on apprentices, but a great deal is already being done to achieve this. I know that my honourable friend the Minister for Skills met the noble Lord, Lord Young, in September to explain this and has written to update him since. The Government believe fundamentally in a voluntary rather than regulatory approach. However, I know that the Minister has also reiterated to the noble Lord his determination to explore every opportunity to do more, provided that we do not put extra burdens on smaller employers and risk any breaching of the law. I would actively encourage the noble Lord to continue those conversations with my honourable friend the Minister for Skills or with me. My door is always open.

The noble Lords, Lord Layard, Lord Willis and Lord Elton, spoke about clear vocational routes for young people. I absolutely agree. For far too long we have undermined the great skills that come through apprenticeships. We want to make sure that young people who have an aptitude towards these skills-usually a very good aptitude-get as much support as we can provide. That is why, from the £1.4 billion in funding that we have put in for 2011-12, £800 million has been directed towards 16 to 18 year-olds. We are absolutely committed to ensuring that we work with employers to give young people-who, as was mentioned, may not be able to go straight into an apprenticeship-access and a pathway to prepare them better. We would still see them as apprentices and ensure that within a maximum of six months they were ready to take on a fully fledged apprenticeship.

The noble Lord, Lord Young, talked about the support for SMEs, GTAs and ATAs. Two-thirds of apprenticeship opportunities are offered by SMEs, which is why we want to make sure that we are supporting the SME sector by simplifying the systems and reducing the barriers so that SMEs are able to offer greater opportunities for apprenticeships.

It has been a great success story. In fact, I was really pleased to hear noble Lords say that. There has been an increase in apprenticeships, which is of course what we want. We know that apprenticeships are a wonderful route into skilled employment. However, we must not see them as a panacea for unemployment. The scheme is there to train and fill a need that employers have. As the noble Lord knows, these apprenticeships are employer led; they are developed by employers because they are at the heart of knowing what they need. It would therefore be futile for us to impose upon employers restrictions and regulations that would bind them to artificial targets and barriers.

We offer incentives to employers to recruit 16 to 18 year-olds. We know that it is crucial that we help them into employment, and the noble Lord is absolutely right to say that too many of them are unable to access it. That is why the Department for Education is fully funding its apprenticeships, and that is why we are there to support them absolutely. However, we must not forget apprenticeships for those who are older because they also need to be able to respond to the needs of the global economy as it changes. More than 100,000 employers offer apprenticeships. That is not enough and we want more to happen, but they are in 160,000 locations; two-thirds are offered by SMEs, which form 99 per cent of all businesses; and large businesses have the capacity to offer apprenticeships in larger numbers.

There is much to be done, but we are doing and building on what has gone before. I hope that I have been able to satisfy the noble Lord because I really believe that he and the Government share the same wish: to ensure that our young people and older apprentices all get an opportunity to contribute fully to the life of this country and, in turn, to the global economy. The Government's amendments will further enhance the deal that we offer young people by prioritising funding for their apprenticeship training. I hope the noble Lord will feel encouraged that we want young people to start their careers on a sound and positive basis through apprenticeships-as, indeed, the noble Lord said. We differ only in our view on the most effective way to achieve that, but I am pretty certain that the noble Lord will feel sufficiently reassured to withdraw and not press his amendments.

Photo of Lord Young of Norwood Green

Lord Young of Norwood Green (Labour)

My Lords, I thank the Minister for her response and thank all those noble Lords who have participated in a profoundly important debate. The noble Baroness said in her first contribution that the government amendment strikes the right balance between aspiration and pragmatism. For my money, there is too much on pragmatism and not enough on aspiration. I do not quarrel with the direction but believe that the aspiration has to be stronger, and I shall develop that point.

I rarely disagree with my noble friend Lord Layard, and I do not disagree with him on this matter because there is a large measure of agreement between us. Of course I welcome what the Government have done. I do not want to be the party pooper and say that the government amendment does not make any improvement -it does, but it is not enough. It ducks the issue in a couple of important areas.

My noble friend Lady Wall talked about the record of many good employers, and that has been echoed through this debate. There are some brilliant employers. As you go around the country, you can find some wonderful schemes, but there are not enough. That is the real problem. You can muck around however you like with the statistics, but you are then faced with looking at the number of companies that take part-between some 4 per cent and 8 per cent, overall-and that is not exactly a staggering example. When only a third of FTSE 100 companies take part, we have a long way to go. Those are not my figures; I obtained them from Library research.

My noble friend Lady Wall was right to say that we need to open up, and indeed we did open up, apprenticeships-

Photo of Baroness Verma

Baroness Verma (Conservative)

My Lords, perhaps I may reiterate to the noble Lord that we are in economic dire straits, but still we have seen an increase in apprenticeships. We are seeing a way forward with businesses by making sure that they are doing their bit in taking on apprentices. We are simplifying the system whereby employers can take on more apprentices. It is unfair of the noble Lord to say that we are not doing enough. Against the backdrop that we have, it is a very positive sign that employers are taking on apprentices. Of course there is more to do. We will carry on doing it. However, it is ungracious to say that employers are not taking on apprentices.

7:00 pm
Photo of Lord Young of Norwood Green

Lord Young of Norwood Green (Labour)

I tried to be measured in my words and I do not think that I have been ungracious: I acknowledged the progress that has been made. I do not want to get too much into an argument about the current state of the economy, as we are going to disagree about how it is being handled. On the entitlement question, I changed the date from 2013 to 2015 as an acknowledgement of the difficulties. However, youth unemployment is in a crisis situation, and crisis situations call for crisis measures. That is the point that I am making and I am not going to resile from that. Therefore, I do not think that it is a question of me being ungracious. There is a real difference of approach and-

Photo of Lord Willis of Knaresborough

Lord Willis of Knaresborough (Liberal Democrat)

I was about to refer to the noble Lord as the honourable gentleman. He is an honourable gentleman. I do not think that anyone in the House would deny the passion and commitment that the noble Lord, Lord Young, has for this area of apprenticeships. That goes without saying. However, I have to ask him a key question. What strategy will he undertake to force-that is what he is talking about-employers to take on apprentices? What will he do?

Photo of Lord Young of Norwood Green

Lord Young of Norwood Green (Labour)

I was coming to the noble Lord's contribution and I was going to address that very word. I do not believe that you can force employers other than in one area. If, as an employer, you bid for a government contract, you have to indicate how many apprentices you are going to take on. That is what we said to those who bid for the Olympic contract and it is what we said in relation to Crossrail. I do not see any problem with that. Why on earth cannot the Government accept that commitment? If you want to do something positive that demonstrates the Government's commitment, that is it. If I have to use the word "force" in that circumstance, so be it, as I believe that that is an intrinsic part of it.

The noble Lord, Lord Elton, made a very valid point. If we made a mistake as a previous Government, it was that at one point we emphasised the academic side so heavily that that somehow created the impression that the vocational or apprenticeship route was second class. It is not a second-class route; indeed, it is not an either/or choice, because many young apprentices go on to take degree courses as well. I have dealt on previous occasions with the question of ensuring that we give proper credence to the value of apprenticeships- I am conscious of the time.

Once again, the noble Baroness, Lady Verma, talked about extra burdens on SMEs. Requiring people to take on apprentices does not impose a burden on them. It is the employers who do not take on apprentices who often live to regret it when they find themselves suffering from a skill shortage. I do not see apprenticeships as some kind of panacea for youth unemployment but I do see them as an essential prerequisite in helping to resolve the problem.

I welcome the fact that the Government have made some progress but in our view it is not enough; more could be done. I make it clear that I shall wish to test the opinion of the House on Amendment 89ZZAA, which refers to procurement contracts, but, for the moment, I beg leave to withdraw Amendment 89ZZA.

Amendment 89ZZA withdrawn.

Amendment 89ZZAA

Moved by Lord Young of Norwood Green

89ZZAA: Clause 67, page 53, line 26, at end insert-

"( ) With the objective of achieving the apprenticeship offer for all qualified persons by 2015-

(a) the Secretary of State will ensure that all government contracts require a clear commitment to apprenticeships; and

(b) the Secretary of State will ensure that all government departments report regularly on the number of apprentices they employ and how many they intend to employ."

Division on Amendment 89ZZAA

Contents 140; Not-Contents 175.

Amendment 89ZZAA disagreed.

Division number 3

See full list of votes (From The Public Whip)

Amendment 89ZZAB not moved.

Amendment 89ZZB

Moved by Lord Hill of Oareford

89ZZB: After Clause 67, insert the following new Clause-

"Securing the provision of apprenticeship training

(1) Part 4 of ASCLA 2009 (the Chief Executive of Skills Funding) is amended as follows.

(2) In section 85 (encouragement of training provision etc for persons within section 83)-

(a) for subsection (1)(a) substitute-

"(a) make reasonable efforts to secure that employers participate in the provision of apprenticeship training for all persons who are within section 83(1)(a) or (b) or section 83A(4), (5) or (6);";

(b) in subsection (1)(b), for "training within the Chief Executive's remit" substitute "apprenticeship training";

(c) in subsection (2), after "provision of" insert "apprenticeship";

(d) in the heading, for "Encouragement of training provision etc for persons within section 83" substitute "Provision of apprenticeship training etc for persons within section 83 or 83A".

(3) In section 118 (guidance by Secretary of State), after subsection (1) insert-

"(1A) Guidance under this section must include guidance about the performance by the Chief Executive of the duty imposed by section 85(1)(a).""

Amendment 89ZZB agreed.

Schedule 18 : The apprenticeship offer: consequential amendments

Amendment 89ZZC

Moved by Lord Hill of Oareford

89ZZC: Schedule 18, page 130, line 22, leave out paragraph 7

Amendment 89ZZC agreed.

Amendment 89ZZD

Moved by Lord Hill of Oareford

89ZZD: After Clause 71, insert the following new Clause-

"Direct payments: persons with special educational needs or subject to learning difficulty assessment

(1) In Chapter 2 of Part 9 of EA 1996 (ancillary functions of local authorities) after section 532 insert-

"Direct payments

532A Persons with special educational needs or subject to learning difficulty assessment

(1) A local authority in England may make a payment (a "direct payment") for the purpose of securing the provision of any goods and services mentioned in subsection (2) to a person ("the beneficiary")-

(a) for whom the authority maintain a statement of special educational needs under section 324, or

(b) who is subject to learning difficulty assessment by the authority.

This power is subject to subsection (3).

(2) The goods and services referred to in subsection (1) are-

(a) where the beneficiary is within subsection (1)(a), special educational provision specified in the statement of special educational needs;

(b) where the beneficiary is within subsection (1)(b) and the authority have arranged for an assessment to be conducted under section 139A of the Learning and Skills Act 2000, provision identified in the assessment as required to meet the beneficiary's educational and training needs;

(c) transport or anything else that may be the subject of arrangements under section 508B(1), 508F(1) or 509AA(7)(b) that apply in relation to the beneficiary.

(3) A direct payment may be made only in accordance with a pilot scheme made under section 532B.

532B Pilot schemes

(1) The Secretary of State may by order make pilot schemes in accordance with which direct payments may be made under section 532A.

(2) Subject to the following provisions of this section, a pilot scheme may include such provision as the Secretary of State thinks appropriate.

(3) A pilot scheme must include provision about-

(a) circumstances in which, and the descriptions of goods and services in respect of which, direct payments may (or may not) be made;

(b) descriptions of persons to or in respect of whom direct payments may (or may not) be made;

(c) conditions with which a local authority must comply before, after or at the time of making a direct payment;

(d) conditions with which a person to or in respect of whom a direct payment is or may be made may be required by a local authority to comply before, after or at the time the payment is made;

(e) the principles by reference to which the amount of a direct payment is to be calculated;

(f) circumstances in which a local authority may or must stop making direct payments;

(g) circumstances in which a local authority may or must require all or part of a direct payment to be repaid, by the person to whom the payment is made or otherwise;

(h) the monitoring of the making of direct payments, of their use by the persons to whom they are made or of the goods and services they are used to secure;

(i) the arrangements to be made by a local authority for providing persons to or in respect of whom direct payments are made with information, advice or support in connection with direct payments;

(j) treating such support to any extent as goods or services in respect of which direct payments may be made.

(4) The conditions referred to in subsection (3)(c)-

(a) must include a requirement to obtain the written consent of the person to whom a direct payment is to be made before making the payment;

(b) may include a requirement to obtain the written consent of one or more other persons before making a direct payment.

(5) The circumstances referred to in subsection (3)(f) in which a local authority must stop making direct payments must include where the consent required by virtue of subsection (4)(a), or any consent required by virtue of subsection (4)(b), is withdrawn.

(6) A pilot scheme must include provision for a sum required to be repaid to a local authority by virtue of the scheme to be recoverable as a debt due to the authority.

(7) A pilot scheme may provide for paid-for goods and services to be treated as goods and services provided or arranged by a local authority in pursuance of a statutory duty specified in the scheme.

(8) A pilot scheme may provide for paid-for goods and services to be treated in that way-

(a) to the extent set out in the scheme, and

(b) subject to any conditions set out in the scheme.

(9) The only statutory duties that may be specified are-

(a) section 324(5)(a)(i) (duty to arrange special educational provision specified in statement of special educational needs);

(b) section 508B(1) (duty to make travel arrangements for eligible children);

(c) section 508F(1) (duty to make arrangements for provision of transport etc for adult learners);

(d) section 509AA(7)(b) (duty to make, and secure that effect is given to, arrangements for provision of transport etc for persons of sixth form age).

(10) "Paid-for goods and services" are goods and services acquired by means of a direct payment.

532C Pilot schemes: local authorities and duration

(1) An order under section 532B(1) making a pilot scheme must specify-

(a) the local authorities in respect of which the scheme operates, and

(b) the period for which the scheme has effect.

(2) The period specified under subsection (1)(b) must not exceed two years, subject to subsection (3).

(3) An order under section 532B(1) may extend the period for which a pilot scheme has effect, subject to subsection (4).

(4) The period for which a pilot scheme has effect may not be extended so as to end after the end of the relevant four year period.

(5) "The relevant four year period" is the period of four years beginning with the day on which the Education Act 2011 is passed."

(2) In section 568 of EA 1996 (orders)-

(a) in subsection (3), after "other than" insert "an order to which subsection (3A) applies or";

(b) after subsection (3) insert-

"(3A) This subsection applies to an order under section 532B(1) (direct payments: pilot schemes), apart from the first order to be made under that subsection.

(3B) A statutory instrument which contains (alone or with other provision) an order to which subsection (3A) applies may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament."

(3) The provisions inserted into EA 1996 by subsections (1) and (2) are repealed at the end of four years beginning with the day on which this Act is passed."

7:15 pm
Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

I start by setting out the context for this new clause. Our SEN and disability Green Paper set out the biggest programme of reform in education, social care and health support for disabled children and those with special educational needs in the past 30 years. Our proposals respond to the frustrations that children, young people and their families have with the current system and seek to give parents more control over the support that their family receives.

We said in the Green Paper that we would give every child with a statement of SEN or a new education health and care plan, and their family, the option of a personal budget by 2014. The evidence shows that a personal budget can give families more flexibility and empower them to make decisions about the support they receive. Families that took part in the individual budget pilot, which began under the previous Government, said that they feel they have more choice and control over the support they receive and better access to and greater satisfaction with services. We want to give more families access to personal budgets because of the evidence of the benefits that can bring. One element of a personal budget can be a direct payment to a parent or carer to buy a service or piece of equipment for their child. In those individual budget pilots, nearly two-thirds of families opted to have a direct payment as part of their personal budget.

I am grateful to the noble Lords, Lord Rix, Lord Low and Lord Touhig, and a number of external organisations, including the Special Educational Consortium for the work that they have done with us since the original draft clause and scheme was circulated in September. Their contributions have helped us to improve our plans for the pilots and we look forward to continuing to work with them. I also thank them for the work they have done with us on improving the system for complaints about schools. I have said that we will not commence Clause 44 of the Bill until we are confident that the department systems are right, and I look forward to working with them on that.

This new clause and the associated scheme would allow local authorities in our Green Paper pathfinders and the individual budget pilots to test the use of direct payments in education for children with SEN. I should stress that we are only proposing a power to pilot the use of direct payments. We can see benefits for children and families but we need robust evidence from the pilots of what works and how to avoid potential problems. The new clause is broadly based on the legislation that allows the use of direct payments for health, including many of the safeguards that this House secured during the passage of that legislation. I apologise to the House for the lateness of the amendment to the new clause, laid by the Government yesterday, which makes the first order setting out the detail of how the pilot will operate subject to an affirmative resolution. That relates to concerns raised by the noble Lord, Lord Touhig, and the Delegated Powers and Regulatory Reform Committee which recommended that this is an appropriate level of parliamentary scrutiny. I accept that view and hope that we will be able to secure time for that debate as early as possible to allow maximum time for the pathfinders to test direct payments.

There are also a number of safeguards contained in the scheme which sets out how the pilots must operate to ensure that children, families, and local authorities taking part in the pilot are protected. First, the pilots will be entirely voluntary for children, young people and families. The local authority must obtain written consent before making a direct payment, and this consent can be withdrawn at any time, in which case the authority must make other arrangements to make the provision. The making of a direct payment does not waive, suspend or repeal any existing statutory duties. Linked to this point, I would like to make it clear that all of the work of the pathfinders will take place within the current statutory framework.

The pathfinders will be required through the scheme to provide appropriate and effective information, advice and support to prospective recipients of direct payments. We have learnt from individual budget pilots that where this is done well, personal budgets and direct payments can be accessible to families from all backgrounds. The local authority will be required to monitor and review the use of the direct payments, and this will be in addition to their existing statutory duty to conduct an annual review of statements.

The purpose of the pilot is to gather information about what works in practice, so it will be evaluated as a distinct element of the wider evaluation of the SEN Green Paper pathfinders. The evaluation will capture information about the impact and effectiveness of direct payments, including cost-effectiveness; the processes local authorities establish to agree, quantify and cost the services to be delivered by direct payment; and potential barriers to delivery. We will ensure that it captures information on age, impairment, and type of need, as well as take-up by different socioeconomic groups. The pathfinder authorities will benefit from the expertise of the pathfinder support team, and they will work closely with the evaluators to provide support and specialist advice, and will help share any emerging learning, including that coming from the evaluation.

I hope that noble Lords will agree with me that direct payments for educational provision have the potential to improve the quality and the choice of support available to children with SEN and their families. There are, however, important and sensitive issues to address and it is right that we should test how we can make this approach work. That is what these pilots will enable us to do, and that is what this clause sets out to achieve. I beg to move.

Amendment 89ZZDAA (to Amendment 89ZZD)

Moved by Lord Hill of Oareford

89ZZDAA: After Clause 71, Line 118, leave out from beginning to "may" in line 122 and insert-

"(3A) A statutory instrument which contains (alone or with other provision) an order under section 532B(1) (direct payments: pilot schemes)"

Photo of Lord Touhig

Lord Touhig (Labour)

My Lords, by introducing these new clauses into the Bill the Government will allow local councils to test the use of direct payments for meeting special educational needs. I certainly welcome and support the greater personalisation of educational provision for young people as does the noble Lord, Lord Low, and the noble Lord, Lord Rix, who I know had some very fruitful and useful meetings with the Minister and his officials. Both noble Lords wished to be here this evening, but are unavoidably unable to be with us; they have asked me to mention to the Minister how much they appreciate the courtesy and the assistance he and his officials have given.

Direct payments have played an important role in allowing disabled people to have choice and control over the services they receive. Nevertheless, there are some significant risks in the use of direct payments in education, particularly in schools. The Department for Education has been working closely with the Special Education Consortium to mitigate these risks, and I know that the Special Education Consortium has certainly welcomed that collaboration and consideration. The matters they are still concerned about include ensuring that the pilot schemes must be set up by an order by the Secretary of State. Establishing the details of the pilot scheme within the legislative framework is a necessary safeguard if these significant changes to the way education is delivered are to be properly scrutinised by Parliament.

The order which establishes the pilots was originally to be the subject of a negative resolution. The noble Lord, Lord Low, and I tabled amendments to ensure these important changes were properly debated through an affirmative resolution procedure. We have withdrawn these amendments because the government amendment means the pilot schemes will be subject to the affirmative resolution procedure as the Minister told us this evening. This is very welcome, and we are grateful to the Government, particularly as the initial amendment on direct payments in education was tabled at such a late stage, as the noble Lord has explained.

The noble Lord, Lord Low, and I also tabled further amendments concerning the details of the scheme. However, as the order will now be subject to the affirmative resolution procedure, we believe these concerns might be more usefully spelt out and discussed in detail during that debate. These two have been withdrawn. Nevertheless, we would still like to put on record some of the issues we hope will be addressed by the order.

We need to know how to measure the reaction of education providers to individuals holding direct payments for special educational provision. This may interact with school and college finances and employment policies, and will affect the ability of schools to plan for all children with special educational needs. Perhaps the Minister will say what steps will be taken to ensure that the viability of specialist SEN services is not threatened where direct payments are taking money out of the system. We also need to know how decisions about the amount of direct payments will be made, particularly if statements are poorly written-there are examples of that as I am sure we all know-and how parents can appeal those poorly written statements. Finally, we need to know whether there will be a thorough evaluation of direct payments in education in particular before Parliament is asked to renew the order in two years' time.

The noble Lords, Lord Low and Lord Rix, and I welcome the Government's new position, but we urge the Minister to make debating this order a priority in the parliamentary timetable so that these proposals, which are rightly being tested, can be given the fullest opportunity to show their worth. Great progress has been made, and I have been asked by my colleagues-who are not able to be with us this evening-to say to the Minister in particular how much they and I and especially the Special Education Consortium have appreciated the fact that he has genuinely worked with us to try to resolve our concerns. This seems to be a better way to make law.

Photo of Lord Lingfield

Lord Lingfield (Conservative)

My Lords, I particularly welcome this new clause because one of the most important items in it allows a continuation of funding post-16 and 18 to the age of 25. Many parents are dismayed that their "special education offspring"-as one put it to me-fall off the end of a funding cliff when they reach early adulthood, and this pilot will help us see much more accurately how this can be done. I hope, however, with the noble Lord, Lord Touhig, that the Government will set out very clearly how these experiments are to be monitored, so that best practice may be observed and reported. It is also important for the Government to make clear to parents what they should do if they want to challenge the amount of payments, and contend that the health or social service elements are too little. My view is that the clauses are necessarily restrictive, in that as I understand it parents frequently agree part-funding with local authorities, but are not to be allowed to supplement the amount of the direct payment to purchase the provision set out in a beneficiary statement. Perhaps the Minister would look at this again. However, I welcome this step in the right direction-albeit it is a small, pilot step-to alleviate the great problems that there are in the special needs sector. I look forward eventually to seeing the careful evaluation when it is published.

7:30 pm
Photo of Baroness Sharp of Guildford

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, like other noble Lords, I very much welcome these pilots and I am very grateful to the Minister for having listened to the Special Educational Consortium and others who have been talking to him about this.

I have been asked by the Association of National Specialist Colleges to raise two issues which possibly have already been covered by the discussions that have been held, but as I have not be party to those discussions I would like to raise them and seek assurances from the Minister. First, in the original draft of the pilot scheme there was a suggestion that colleges could be asked to return an element of the funding to local authorities in order for them to make a direct payment to the students who were already attending the colleges. The Association of National Specialist Colleges felt that this was overly bureaucratic and was a somewhat artificial approach to the pilots. The suggestion does not appear now in the published information, but it would be helpful to know whether it has been dropped or whether it is likely to be retained in additional guidance as the pilots proceed.

The second issue was one of transport, which has always been a major issue for those with special educational needs because local authorities are supposed to provide the funding for such transport and very often they have been derelict in their duties. A direct payment allows for students to pay for transport. The Association of National Specialist Colleges has significant concerns about the lack of transport funding for young people with learning difficulties or disabilities to get to both specialist and mainstream colleges. Unless there is a transport budget available for local authorities to include within the direct payment, it was concerned that the ability of students to pay for transport, as well as other requirements, would be impaired. They wondered, therefore, whether there was any way of ensuring that the local authorities had included an allowance for transport in the direct payment before there was any expectation that the students would be paying for that transport. Perhaps the Minister could clarify those two points so that they are on the record.

Photo of Baroness Jones of Whitchurch

Baroness Jones of Whitchurch (Labour)

My Lords, like many noble Lords in the Chamber, we welcome the direct payments initiative. It is right that it should be piloted and closely scrutinised. We will play our part in that. I hope that the Minister is able to reassure us that the outcome of the pilots will be fully debated by your Lordships' House in due course. I suspect that we will find that, as with many initiatives, it is the detail that matters and how the new powers are interpreted by parents and local authorities alike. We need clear advice and updates on how the pilots are working in practice. The outcome has to be an improvement in the provision of SEN services in schools and the pilots will need to demonstrate that all SEN children, not just those of middle-class parents, have an improved quality of service.

Noble Lords have raised a number of important questions in the short debate, but there remain some concerns that I hope the Minister will be able to help me with. Like the noble Baroness, Lady Sharp, I say that these points may have been covered in the discussions, but forgive me if I am not up to speed on some of the discussions that have taken place. First, how can we be assured that the payments will be enough to cover identified need so that the parents will not be expected to make up the difference from their own budgets? Secondly, how will other families be assured that other budgets will not be cut to fund these payments, thereby adversely affecting other services provided by the local authorities? Thirdly, how will the special position of looked-after children be protected? For example, foster carers will potentially administer the payments but might be perceived to have a conflict of interest, as they are also employees of the local authority. Lastly, on the level of support and advocacy provided to parents, which the Minister touched on, can he reassure us that that will be independent of local authorities because undoubtedly parents will find the system new, potentially difficult and overwhelming in terms of the choice and the bureaucracy with which they are faced? Perhaps he could clarify the level of independence that would be available.

A separate, procedural point is that we find ourselves, once again, tonight making policy on important issues on the hoof. These issues would have benefited from a longer period of consultation, both within the House and outside. The legislation, as drafted, has been placed in completely the wrong part of the Bill; it is in Part 7, which deals with post-16 education and I do not suppose that the Minister is suggesting that these payments are restricted to post-16. The Government should do better than this and, if they do not, they cannot complain when humble Back-Benchers follow their example and try to misuse the structure of Bills to put bits of legislation in the wrong place.

Notwithstanding all that, we support the intent of the Government's proposals and we look forward to the future scrutiny which, we trust, will occur in due course.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I am grateful for the broad welcome from all sides of the House for what we are attempting to achieve with these pilots and for what we are trying to do to get a better system for the most vulnerable children in the country from all backgrounds. As a number of noble Lords have made clear in their questions, there are a number of important issues to get right and that is the point of the pilots. We shall work through some of the issues that have been raised as a result of the pilots.

The noble Lord, Lord Touhig, and the noble Baroness, Lady Jones of Whitchurch, raised the issue of evaluation. There will certainly need to be very careful evaluation. We would want to share that with noble Lords. I was very grateful for the remarks made by the noble Lord, Lord Touhig, about the way in which we have managed to work with him, others and the Special Educational Consortium and I want that to carry on. The first evaluation results will probably arrive next April and there will be another report next September, but we want this to be an open process. I am very happy to share the findings as we go along and to work on ensuring that everything works as we want it to. As I said before, I think we are all agreed on the direction in which we want to go but, of necessity, difficult questions arise, some of which have been posed, about funding. The only way to answer those questions is to work through them with an open mind, and not to prejudge the outcome but to try to come up with solutions to them.

My noble friend Lady Sharp asked a couple of questions, first, on behalf of Natspec, in relation to the element of funding to local authorities. During the pilots, a local authority and a college will need to agree before a direct payment can be made. We think it is right to do everything possible to give students greater control over the services that they receive, so we are testing direct payments through these pilots to ensure that we learn everything about how to make them work in practice.

On transport, the pilots of direct payments will not affect current local authority duties or budgets, including those for transport, so if a local authority were to agree a direct payment for transport with a student, it would need to agree what the payment was for and exactly how much it would cost. My noble friend Lord Lingfield asked about top-ups: will parents be required to top up? The noble Baroness, Lady Jones, was concerned about that too. In no circumstances should the amount of the direct payment be set at a level that would require someone to pay from their own resources in order to secure part or all of the provisions set out in the child's statement of SEN or the young person's LDA. If an individual wishes to purchase support that is additional to that needed to meet the assessed needs, it would be open to them to do so.

That links in to the question put by the noble Lord, Lord Touhig, about what is in the statement, as the statement determines what is delivered, how much things cost and so on. We know that local authorities are currently required to specify the provisions necessary to meet the needs of a child in the statement, but we also know that the quality of statements and learning difficulty assessments varies significantly. We think that the process of establishing a direct payment should, by itself, help in this regard because in order to make a payment to a family, the local authority would have to quantify exactly what provision is required. Our experience with the individual budget pilot supports this view, and parents report the initial discussions to establish a budget as one of the significant benefits of the overall pilot. I think that will help address that concern. So far as the question about the independence of the support is concerned, I will follow it up and write to the noble Baroness with more particulars on it.

I am grateful to noble Lords for the support for this. I hope it will mark a significant step forward. We hope these pilots will work.

Amendment 89ZZDAA (to Amendment 89ZZD) agreed.

Amendment 89ZZD (as amended) agreed.

Amendments 89ZZDA and 89ZZDB had been withdrawn from the Marshalled List.

Clause 72 : Student loans: interest rates

Amendment 89ZZE

Moved by Lord Stevenson of Balmacara

89ZZE: Clause 72, page 56, line 16 at end insert "or

( ) for the period until the first repayment is made, not in excess of the average cost of borrowing borne by the Government in the preceding financial year."

Photo of Lord Stevenson of Balmacara

Lord Stevenson of Balmacara (Labour)

My Lords, Clause 72 amends the powers given to the Secretary of State in the Teaching and Higher Education Act 1998 to make regulations setting interest rates for student loans. As the legislation currently stands, Section 22 of the 1998 Act effectively provides that the interest rates set must be no higher than the rate required to maintain the value of the loan in real terms. If no repayments are made, the size of the loan increases in cash terms but remains fixed in value terms. Clause 72 gives the Secretary of State wide and substantial powers to set interest rates, but its intention is to move the policy of the Government away from where it currently is, and from where its independent adviser, the noble Lord, Lord Browne of Madingley, recommended it should stay. It will move us from the position of a zero rate of real interest to one in which the real interest rate would be 3 per cent above RPI.

We had a bit of a stushie in Committee about who said what and when about how many graduates are not expected to repay their loans in the future, which is an important issue as it has consequences for the taxpayer. According to the letter I received subsequently from the Minister, I did not misquote senior members of the Government on this issue. However, she went on to explain that the department,

"currently estimate that around 40% of full-time students could have some of their debt written off".

She goes on, however, that this,

"remains an uncertain estimate and if OBR projections of inflation and earnings growth change this autumn, then the figure could change again. In December last year the IFS"-

a widely respected think tank-

"estimated that the proportion could be around 50 per cent and we accept that the true figure could range from 40 per cent to 50 per cent".

So there we have it. Whether it is 40 per cent or 50 per cent or somewhere in between-my fear is that it will be on the higher side-it is a very large sum of money indeed to carry within the national accounts.

There are still issues on which we have not had an answer. The Browne report recommended that the interest rate should be set at the rate that the Government themselves can borrow money. What therefore is the justification for the figure of 3 per cent? Why RPI was selected, not CPI? Is the 3 per cent above the RPI rate of interest Sharia compliant? What assessment has the department made of the 10 per cent drop in student applications for 2012, and does it think that the drop is linked in any way to the high fees being charged?

I have discussed this issue with the Minister since my original amendment was discussed in Committee, and I am grateful to her for giving me time to go over my concerns. However, I feel very strongly that using RPI instead of CPI is wrong, and taking powers to impose rates of up to 3 percentage points above the RPI is penalising our young people and their families. It will exacerbate social divisions, and it may deter young Muslim applicants. It will generate a high level of individual debt, which will have to be repaid over a period of, say, 25 or 30 years, and is set in the form of a contingent tax liability. A positive real rate of interest will impact in particular on mature students. It is likely to have an adverse impact on female graduates and on men in the bottom decile of earnings. It is setting students off on a lifelong debt habit, and approximately half the loans are going to be written off. I still do not really understand how a policy can be supported when it is basically a tontine of very crude proportions: half those affected by it get their loan commuted to a grant, which then becomes a deadweight charge on the PSBR, simply because they earn too little to trigger any repayments and because they happen to live longer than 30 years after the due repayment date.

However, I recognise the pressures on the system and the need to recoup some of the costs. So I offer a late Halloween deal to the Minister: why not have one rate of interest for the period when young people are studying and a different one when they are earning enough to begin repaying what they have borrowed? The change in rate from constant value to a real rate of interest could be tied to the point at which they begin repaying. This is what is set out in my amendment. I hope this version of trick or treat is an attractive proposal for the Government, and I would be grateful if, in the event they cannot accept it tonight, they take it seriously and agree to have further discussions with me about it before Third Reading. I beg to move.

7:45 pm
Photo of Baroness Verma

Baroness Verma (Conservative)

My Lords, the amendment moved by the noble Lord, Lord Stevenson, seeks to place a statutory requirement in the Bill whereby the interest rate at which borrowers are charged while they are studying and until their first repayment is no more than the government rate of borrowing for the preceding financial year. I thank the noble Lord for raising this issue, and I hope that he will find my response helpful. I will not put it in the context of trick or treat.

The current system provides borrowers who go on to earn the highest incomes with an interest subsidy while they are studying. This amendment is unnecessary because high-earning graduates are well placed to contribute to the cost of their higher education, and it also makes it unprogressive. The new arrangements that we are proposing mean that, in practice, the only people who are affected by the decision to charge a real interest rate while studying are those high-earning borrowers who pay back their loans in full. Those who do not fully pay back their loans will see that part of their borrowing written off. What is more, charging a real rate of interest is part of a progressive package of reforms, and any proposal to change this rate of interest should be considered in the round.

The changes that the noble Lord is suggesting would have a significant cost and impact on the sustainability of the new student finance package. Our analysis shows that charging students the government rate for borrowing-currently, RPI plus 2.2 percentage points-means that we would have to find a further £100 million per year. If we were to reduce this further, as has been suggested, to an interest rate of RPI only, while studying, or if we were to extend this rate until the student makes their first repayment, it would mean the costs would be even greater. The Government are committed to the progressive nature of the repayment system and want to ensure that those who earn most and can afford it contribute most towards the cost of their education. I am sure that the noble Lord does not disagree with that.

The noble Lord spoke about women being affected disproportionately. We estimate that around 35 per cent of female graduates will repay less than those on the current system. This is in large part because since women are more likely to be lower earners, they are more likely than men to benefit from the features of the progressive repayment system, including the protection afforded by the higher repayment threshold.

We do not want to have a negative impact on disadvantaged groups, and that is why the Government are committed to ensuring that our universities remain open to everyone with the ability to succeed in higher education. Our equality impact analysis indicates that our student funding reforms will not have a negative impact on protected groups. With our new repayment terms, we estimate that around a quarter of graduates- those on the lowest incomes-will pay less than they do on the current system.

The noble Lord asked about Sharia-compliant loans. We are actively investigating the possibility of introducing an alternative finance system and are working with organisations such as the Federation of Student Islamic Societies and the National Union of Students. We are clear that we want a single student loan system that can meet the needs of the majority of students, where possible. We will seriously consider proposals to change the administration or presentation of the system in ways that can address the doubts that members of some faiths might have about accessing student finance. However, any proposals would need to ensure that the overall financial outcomes for government are the same and that all student loan borrowers are treated the same in accordance with existing legislation. It is important to get this right, and I know the noble Lord agrees with me that it may take a little longer, but the outcome must be absolutely right.

The noble Lord raised the RPI/CPI question. No single measure of inflation is appropriate for all purposes. It is important to view the package of reforms in the round. We need a student finance system that is progressive, sustainable and affordable for the taxpayer, and that is what we have delivered. A measure of inflation that brought in lower contributions from the highest earning graduates would require us to be less generous with the progressive elements of the system that protect our low earners.

The Government's student finance package is progressive and sustainable. It rebalances investment in higher education so that there is less public subsidy and a greater contribution from those who benefit the most. This can only be right. Our proposals create a system that provides more generous support for students from lower-income households and protects low-earning graduates. We believe that this is a fair deal. For those reasons, I cannot accept this proposal but I am very happy to continue meeting the noble Lord to discuss his concerns further.

Photo of Lord Stevenson of Balmacara

Lord Stevenson of Balmacara (Labour)

My Lords, I thank the Minister very much for that and in particular for her closing remarks about continuing the discussions. I think it would be worth having a further round of that. I gather there is a date now in the diary and perhaps we can pick it up at that point.

I would like to make three small points, and one at the end. First, it was good to hear that the difference in the cost to the public sector of going from 2.2 per cent to 3 per cent was only £100 million a year. I say "only" in a casual, flippant way-of course it is a lot of money, I understand that, but it is not a lot. If one has to balance the impact and the damage done because of the increase, I think that is worth bearing in mind. I am grateful to have that information and I will think about it.

Secondly, the Minister said that the proposed changes will not have an adverse impact on admissions, but I think I am right in saying that the reduction in admissions reported last week was highest among mature students and women. That is a worrying sign. It may not be reflected when the full admissions figures come in, but even at this early stage of admissions, which is primarily for medicine, veterinary science and Oxbridge, those reductions are worrying and we need to bear them in mind.

Thirdly, on the point of whether or not the loans as currently proposed are Sharia compliant, I am grateful to the Minister for saying what she did on that. This is something that we perhaps could do by correspondence because we share a common wish that this works out well and that there is not an artificial or even a real division between the systems of loan that are appropriate across the whole country.

Finally, although it is fantastic that both full-time and part-time students who go on to higher education will be able to do so free at the point at which they enter the system, there is a price to pay for that. Underneath all the rhetoric, the truth is that this is a progressive system only because out of it will come a very large number of people-perhaps 50 per cent of the cohort-who do not earn enough to go on to a statutory repayment basis. It is a sort of race to the bottom and a crude way of depressing wages, and that cannot be right. There must be a better way of getting this across. If the progressive nature of this is really a way of separating out those who are benefiting from higher education and get more than the average wage in the country from those who do not, the phrase that is being used-those who earn more should contribute the most-begins to sound more like a graduate tax than anything else. Having said that, I hear what has been said tonight and I beg leave to withdraw the amendment.

Amendment 89ZZE withdrawn.

Amendment 89ZA

Moved by Baroness Brinton

89ZA: After Clause 73, insert the following new Clause-

"Repayment of loans for part-time students

No part-time student shall be required to repay their loan until-

(a) they have completed their studies, or

(b) four years and six months has passed since the start of their course, whichever occurs first."

Photo of Baroness Brinton

Baroness Brinton (Liberal Democrat)

I rise to speak to Amendment 89ZA in my name. I thank the Minister for her letter of 25 October, in which she reports that the Minister for Universities and Science has agreed to accept that the statutory repayment date for all those studying part-time will be the April that falls four years after the start of their course. This seemingly small decision will have a very large impact on part-time students across the country, and I am absolutely delighted with the news.

The Open University has said it will make a significant difference to many of its over 200,000 students, and Birkbeck College has written to me to say that this is also very important for its non-traditional students, who are often juggling their study with work, mortgages and family commitments. I am also concerned that we need to ensure that the budget for widening participation, which the Government have provided this year and is being distributed by HEFCE, continues because these non-traditional students must get the right support to enable them to access the university courses that they need. I hope that the Government will ensure that the current HEFCE widening participation grant will continue beyond 2012.

I also thank the Minister for arranging a meeting with the Minister for Universities and Science later this week. I wish to raise with him the points I covered in Grand Committee, which also relate to the issue of part-time students repaying their loans. First, I am hoping for confirmation that the arrangements for part-time higher education students on fee loan repayments will also apply to the other new group of students now able to access loans to cover fees-that is, adult students over 25 studying a level 3 qualification, including but not only access to HE. That would, after all, be only fair and equitable.

Secondly, in Grand Committee I mentioned a letter from the Minister for Universities and Science to million+ at the beginning of September regarding the proposed government fee caps for part-time students, which may well leave universities and part-time students with an inadvertent problem. The impact assessment for the Education Bill says:

"The Bill also proposes to give the Secretary of State the power to specify in regulations the maximum tuition fee that higher education institutions (HEIs) may charge part-time undergraduate students in a given year. The level of the cap will be set through regulations, and the Impact Assessment will be published at that stage.

The current proposals for the cap, taken in isolation, will have no significant costs and benefits that can be monetised. This is because our analysis suggests that part-time course tuition charges do not currently exceed the maximum amounts proposed for the cap. The upper fee amount will be £6,750. The lower fee amount will be £4,500".

This means that for part-time students there are proposed fee caps of £6,750 and £4,500, which relate to 75 per cent of a £9,000 full-time fee and 75 per cent of a £6,000 full-time fee respectively. This proposal assumes that part-time students do not study at more than 75 per cent intensity and that universities would be seeking to raise part-time fees excessively if the cap was higher than that proposed by BIS. This fundamentally misunderstands how part-time students study. In practice there is inevitably a good deal of flexibility in relation to the intensity of study, which may vary according to circumstance, such as work, family commitments and the number of modules that students have been able to study in previous years.

Part-time and full-time study are both based on modules and credits rather than percentage intensity. There are 120 credits in an academic year and it would be much more helpful for students if universities were able to charge these part-time fees on a pro rata basis linked to credits undertaken and the full-time fee set by the university for the course in question, with an eligibility floor of 25 per cent intensity. This would provide more flexibility for students and would be no more costly overall in respect of fee loans, especially since part-time students will not be eligible for maintenance loans or grants.

Pro rata charging would also ensure that there was equity of funding between full-time and part-time modes as well as transparency of costing. The most transparent costing methodology is credit based, but this will not work if students and universities are limited in how they deliver their courses. As well as being difficult for universities to administer, this arbitrary cap of 75 per cent could well have many perverse consequences. These could include students on the same courses and studying at the same intensity being charged different prices as a result of studying at different intensities in previous years. It could mean that students end up paying less or more than 100 per cent of their degree cost.

I am quite sure that the Government never planned for this law of unintended consequences to prevail, and I am looking forward to discussing this with the Minister and the Minister for Universities and Science later this week. I hope that we will be able to have a letter on this complex issue before Third Reading.

To end on a high note, and to make it absolutely clear to the Labour Opposition, who seem to have taken delight in mischievously not noticing when the Government have given significant ground on issues, I thank the Government for changing the fee loan repayment arrangements for part-time students, so that now they match the arrangements for full-time students. Our universities will now have a clear message that part-time higher education will be free at the point of study for the vast majority of students. I beg to move.

8:00 pm
Photo of Lord Stevenson of Balmacara

Lord Stevenson of Balmacara (Labour)

My Lords, I shall also speak to Amendment 89ZA in the names of the noble Baronesses, Lady Brinton and Lady Sharp of Guildford, and myself. We are of course delighted that the Government have accepted that the statutory payment due date for all those studying part-time will be the April which falls four years after the start of their course. A potential injustice has been avoided and the change represents a step towards breaking down the barriers to part-time study.

Once this Bill becomes law, the situation seems to be that part-time fees are set to go up from about £1,000 per annum, which is the latest DES figure, to £6,750. Part-time students will not be eligible for maintenance loans or grants as they are at present but such students will have to borrow to pay the much higher fees that are going to be charged. I worry about this radical change to the current position and whether the existing range of part-time students, who are mainly mature, female and people who say that they missed out the first time around, will continue to enrol on part-time courses.

I have some questions to leave with the Minister. Why are the Government regulating part-time fees when the existing system seems to be working? If a university is setting a fee which it thinks the market will bear and the Government are prepared to extend its voucher system to part-time students, why put in an inducement to raise that fee, which will be hard to resist, to £6,750? Why not try it for a year or two and, if necessary, regulate at that point if it is not working?

As has already been said, not all university part-time course structures fit neatly across four years and not all students wish to study at the same level of intensity each year. It must be to the student's advantage to study at the pace that best suits their lifestyle and commitments. Universities have reacted to that by becoming more flexible in terms of evening and weekend study, and study outside the traditional academic year.

Given that, I have some sympathy with the case that has been made by million+ that it would be much more helpful for students if universities were able to charge part-time fees on a pro rata basis linked to the credits undertaken and the full-time fees set by the university for the course in question.

HEFCE currently provides £368 million to institutions to support them with the additional costs of attracting and retaining students from the most deprived areas and those in receipt of disabled student allowances. The early years allocation from this fund has led it to attract 20 per cent of its newest students from the 25 per cent most disadvantaged communities in the country, 12,000 current students with registered disabilities and 18,000 students who access higher education through targeted access, taster and opening programmes. When the Minister replies, perhaps she will reassure us that the earmarked funding of this nature will continue. I look forward to hearing the answer to these questions.

Photo of Baroness Verma

Baroness Verma (Conservative)

My Lords, first, I thank my noble friend and the noble Lord for their warm welcome to the Government's response. The amendment in the names of my noble friends Lady Brinton and Lady Sharp, and the noble Lord, Lord Stevenson, seeks to extend the repayment due date. I also thank them for championing this point and apologise for the delay in arranging a meeting with my right honourable friend the Minister for Universities and Science and myself. As noble Lords know, I take pride in delivering on my commitments and I am sorry that there has been this delay.

My right honourable friend has listened carefully to the debate in this House. He has considered all the arguments and has asked his officials to have those further discussions. While we are not able to accept the amendment as it was laid, I am pleased to confirm that through secondary legislation we will set the repayment due date for part-time students as the April which falls four years after the start of their course or the April after a student leaves their course if that is sooner. A letter has been laid in the House Library to this effect, and I am pleased to note that this change has been resoundingly welcomed by the sector.

My noble friend Lady Brinton asked about widening participation. To ensure a fair deal for poorer students, we have announced a new £150 million national scholarship programme to support students from disadvantaged backgrounds. I will write to my noble friend on HEFCE's widening participation funding. I also hope that she and the noble Lord will take the opportunity later this week to discuss this and all other issues raised by noble Lords today with my right honourable friend.

My noble friend and the noble Lord asked about regulation. My noble friend proposes a more rigid system of regulation than that put forward by the Government. We do not believe that there is evidence that such a system is needed. Our proposals establish a common framework within which higher education institutions have flexibility to set their own pricing. They need to be sensitive to the level of pricing that potential students will bear. Part-time students may simply not accept charging over and above the relevant proportion for their full-time equivalent. Our proposals protect students by ensuring that their loan will cover the full amount charged and by securing investment in widening participation and fair access. We will of course carefully monitor the new system and, if we need to, we will review and revisit it.

The noble Lord, Lord Stevenson, asked about the regulatory burden. This cap will enable higher education providers to set their own charges as they do now but up to a maximum amount specified in regulations. We do not believe that this will cause an unnecessary regulatory or administrative burden. Our proposals establish a common framework.

I look forward to further discussions with the noble Lord, Lord Stevenson, and my noble friends Lady Brinton and Lady Sharp. This week, my right honourable friend will speak to them and I hope that we will have some fruitful discussions. Therefore, I hope that my noble friend will withdraw her amendment.

Photo of Baroness Brinton

Baroness Brinton (Liberal Democrat)

I thank the Minister for her response and the noble Lord, Lord Stevenson, for his contribution. There is much agreement about the principle of the repayment of fee loans for part-time students. The other issues raised are complex and they sit beneath the primary legislation. I am grateful for the meeting to be held later this week and I am pleased that the Minister thinks that we can have fruitful discussions.

The only point that I would make is that neither myself nor the noble Lord, Lord Stevenson, think that we are proposing a tighter regulation base. In fact, the present system will constrain universities and students because it is rigid and, as I said earlier, may provide a law of unintended consequences where some students may bizarrely end up paying more than the cost of their course because of this structure of breakdown. Those are the discussions that I hope we are aiming for.

As I said at the end of my speech when introducing this amendment, I want to end on a positive note. I thank the Minister and the Government for agreeing to the principle of this amendment. I look forward to the revised legislation coming through and I beg leave to withdraw the amendment.

Amendment 89ZA withdrawn.

Clause 74 : Orders and regulations

Amendment 89ZB had been withdrawn from the Marshalled List.

Clause 78 : Commencement

Amendment 89ZC

Moved by Lord Hill of Oareford

89ZC: Clause 78, page 58, line 14, leave out "(8)" and insert "(9)"

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I end with a whimper and not a bang. As noble Lords will recall, we agreed four government amendments when we discussed school inspections last week. Those amendments to Clauses 39 and 41 mean that, with the exception of the first set of regulations made under the new powers inserted by these clauses, regulations will be subject to the affirmative procedure. I refer to the amendments that I introduced in response to the points raised by the noble Lord, Lord Hunt of Kings Heath.

The two amendments before us are consequential to those amendments and were unfortunately overlooked. Amendments 89ZC and 89ZD make minor drafting changes to Clause 78, "Commencement", so that it refers to the right subsections, including those applying the affirmative procedure. This does not affect the commencement of the clause. I beg to move.

Photo of Baroness Jones of Whitchurch

Baroness Jones of Whitchurch (Labour)

My Lords, I was trying not to get drawn into ending on a whimper as well. I was not going to say anything, because there is nothing to be said, except to thank the noble Lord for his courtesy so far. I look forward to Third Reading in due course.

Amendment 89ZC agreed.

Amendments 89ZD to 91

Moved by Lord Hill of Oareford

89ZD: Clause 78, page 58, line 16, leave out "(9) and (10)" and insert "and (9) to (11)"

89A: Clause 78, page 58, line 16, at end insert-

"( ) section (Academy orders: local authority powers);"

89B: Clause 78, page 58, line 16, at end insert-

"( ) section (Direct payments: persons with special educational needs or subject to learning difficulty assessment);"

90: Clause 78, page 58, line 23, leave out paragraph (c)

91: Clause 78, page 58, line 31, leave out "section 67" and insert "sections 67 and (Securing the provision of apprenticeship training)"

Amendments 89ZD to 91 agreed.