Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

I beg to move amendment No. 7, in page 5, line 8, at end insert

‘, such guidance to be placed in the Library of the House of Commons and its existence noted by way of Written Ministerial Statement.’.

Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following amendments: No. 10, in clause 8, page 5, line 31, at end insert

‘, such guidance to be placed in the Library of the House of Commons and its existence noted by way of Written Ministerial Statement.’.

No. 12, in clause 11, page 6, line 31, at end insert

‘, such guidance to be placed in the Library of the House of Commons and its existence noted by way of Written Ministerial Statement.’.

No. 13, in clause 12, page 7, line 14, at end insert

‘, such guidance to be placed in the Library of the House of Commons and its existence noted by way of Written Ministerial Statement.’.

No. 14, in clause 13, page 8, line 4, at end insert

‘, such guidance to be placed in the Library of the House of Commons and noted its existence by way of Written Ministerial Statement.’.

Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

The amendment has been tabled to deal with a new form of legislation that seems to have crept into our system—guidance. Guidance now seems to be even more powerful than secondary legislation. The amendment also applies to clauses 8, 11, 12 and 13. By the time I reached clause 13 I was becoming exhausted, so I and my hon. Friends left it at these five clauses for the time being.

A great deal of legislation now takes place through the tertiary form of legislation known as guidance, which is very influential. For example, the guidance to magistrates determines the reality of sentencing in this country. The Bill has a plethora of requirements for the Secretary of State to issue guidance. It is beholden on Members of Parliament at least to read the guidance, so that we can take a view on the impact of legislation on the real world. The problem is that there is no mechanism for scrutinising the guidance, not even an hour-and-a-half debate. There is not even the negative resolution procedure, whereby Members of Parliament could pray against Government guidance being issued.

It is true that there is no requirement for the Government to say in a Bill that a Secretary of State should issue guidance. Secretaries of State can issue guidance willy-nilly. However, given the increasing importance of guidance in setting the practical framework of legislation, there should be a mechanism in place in the House that enables Members of Parliament to be alerted to the guidance and to read it. That is why the amendment also calls for a written ministerial statement to announce that the guidance has been issued and a copy of it placed in the Library. That gives us an opportunity to read it and then to raise with Ministers, through debate, at Question Time or in correspondence, our concerns about it and any issues that our constituents raise about the way in which it is being implemented. Constituents often complain in correspondence about the law, and it turns out that the law says no such thing and that they are in fact complaining about the guidance.

The other reason why we ask for written statements to alert us to the fact that guidance is being issued is that Governments of all complexions have a tendency to slip out less favourable news without alerting people to it. I cite as an example the annual report of the Department for Education and Skills published on 20 June 2005. No press notice was issued, let alone any written statement or even a parliamentary answer. I wonder whether that was because of the number of targets that had been missed. For example, the No. 1 target to raise standards in English and maths so that by 2004 35 per cent. of 11-year-olds would achieve level 5 or above in those subjects was not met. I could go on about the number of missed targets, but I will not. I see you nodding at me gently, Mr. Benton, to tell me that it would not be a good idea to go on.

However, I make a serious point. Our role in the House of Commons is to scrutinise the Executive, and a great deal of Executive action today takes place in a way that is almost designed for us not to see it. The amendment simply puts in place mechanisms to make the job of Opposition and Back-Bench Members of Parliament slightly easier, so that we are alerted to guidance by ministerial statements. Then we can read the guidance in the Library with ease, without having to go to all the effort to ask for it, which can sometimes be quite difficult.

I shall leave it on that note and wait to hear what the Minister and others say on the amendment.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

I am pleased to deal with that point. I have some sympathy with the intention behind the amendments of the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb), as the Government issue a great deal of guidance on child care and education, and the amendments seek to make it clear when and where such guidance is available.

Amendments Nos. 7, 10, 12, 13 and 14 relate to clauses 7, 8, 11, 12 and 13 respectively, but they are the same in their effect. They would require that certain statutory guidance is placed in the House of Commons Library and that an announcement is made to MPs through a written ministerial statement. There are four other guidance-making powers in the Bill for which   similar amendments could have been tabled if the hon. Gentleman had not, as he freely admitted, become a bit fed up with ploughing through the Bill trying to spot them while he wrote his amendments. I shall not discuss them, as he did not, but a similar idea applies.

I agree that there is absolutely no point in the Government producing guidance that people do not know about. It must be taken note of by the people whom it is intended to assist. I therefore fully agree with the idea that documents should be placed in the Library, but it has been for some time a matter of custom and practice for Departments, irrespective of the party in power, to ensure that that happens. Guidance already exists in the ministerial code and in the deposited papers guidelines for Departments that the House uses. The guidelines state:

“Ministers have undertaken to deposit all framework documents in the Library and departments should ensure that this is done.”

So there is custom, practice and the determination set out in various documents that Ministers take notice of, such as the ministerial code, that that ought to be done.

I shall not stand here and say that all guidance is placed in the Library at exactly the moment it ought to be, but it certainly is all placed there. I asked my parliamentary clerk to have a good look at recent practice, but I have not been made aware of any instances when guidance and other framework documents have not been placed in the Library.

It certainly is not to anyone’s benefit that guidance is hidden in the Library. I heard what the hon. Gentleman said about the annual report, but it is difficult to argue that such a document could be hidden for long. Members of all parties check departmental annual reports regularly to find out what they say, and I doubt very much, were we to attempt such a thing, that we could sneak them into the Library without anybody knowing about it in pretty quick order, not least because such documents tend to be produced at certain times of the year. Therefore, I do not accept that guidance can be hidden—it is usually too bulky.

Annette Brooke (Shadow Minister, Education & Skills; Mid Dorset & North Poole, Liberal Democrat)

As I was considering the amendment, it occurred to me that a change in the guidance on clause 7 might be to include all two-year-olds in an extension of the pilot scheme, in which case there would be a press release. However, I share the view of the hon. Member for Bognor Regis and Littlehampton that it is difficult to know when guidance is placed in the Library if there is no press release. In theory, it might be there for three months before MPs discover it. Could the Minister deal with that point?

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

As I said, I have some sympathy with the sentiments and intention behind the amendments, but I do not think it necessary to include the amendments in the Bill, given that it is general practice to place guidance in the Library. The guidance that we will produce if the Bill goes through both Houses will make things clear so that those who are bound by the provisions will know fully what we intend to do. It is   not in anybody’s interests that these things are hidden. They will be well publicised and sent out to people, including Members of the House.

I hope that hon. Members on the Committee have received a letter from my right hon. Friend the Minister for Children and Families, which has attached to it a number of documents that set out—helpfully, I hope—some of the thoughts and ideas behind the guidance that we have been talking about and how we intend to exercise the regulatory powers in respect of a number of issues. It would not be sensible for us to attempt to do any of that on the quiet, without there being pretty widespread appreciation of the content of the notes, both among those of us in the House and those in the education and child care world who will have to implement the legislation based on regulations and guidance that are not included in the Bill.

Although I understand the concerns, I can assure the hon. Gentleman that it is not the practice, nor is it our intention, to try to hide the publication of such guidance—quite the opposite. I hope that he will agree that it is not necessarily sensible to clutter the Bill with requirements that merely reiterate current practice. I hope that, with those assurances, he feels able to withdraw his amendment.

Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

I am happy to compromise with the hon. Lady in extending the amendment to the other four clauses that I had not got round to drafting amendments for. I agree with her point that these things are placed in the House of Commons Library. I was not accusing civil servants in the Department for Education and Skills of sneaking into the House of Commons in the dead of night with large bulky documents to place on the shelves. However, it is important to reiterate the point made by the hon. Member for Mid-Dorset and North Poole (Annette Brooke). Unless we are alerted to the guidance documents through some mechanism, it is likely that they will reside in the House of Commons Library unnoticed until two or three months down the line, following their implementation at a local level, we start to receive complaints as constituency MPs. Given the importance of guidance in the way in which legislation is implemented, it would be better for us to be alerted to its publication through a ministerial statement.

That said, we have aired the issue in the debate and made the point quite clearly from the Opposition Benches that we would prefer the matters to be included in the Bill and for us to be alerted to guidance by means of a written ministerial statement. I listened to the Minister’s assurance. If I can interpret it as meaning that when guidance is issued by her Department, Members of Parliament who express an interest in education matters will be alerted in some other way, either by press notice or by correspondence, I beg to ask leave to withdraw the amendment.

Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

I have just one issue to raise with the Minister. It relates to subsection (1)(a), which states that the

“local authority must secure that early years provision of a prescribed description is available free of charge for such periods as may be prescribed for each young child in their area who ... has attained such age as may be prescribed”.

Will the Minister set out her plans on that point and a timetable for any secondary legislation to be introduced to prescribe the arrangements for the provision of child care that is free of charge? I am aware of the current position, but it is not set out in the Bill. Will she set the record straight on the Government’s policy and intention in relation to subsection (1)(a)?

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

I am happy to do that. The clause sets out English local authorities’ duties to secure prescribed early years provision free of charge. It carries over the current entitlement to free nursery education for three and four-year-olds into the legislative arrangements of the Bill. We know that that entitlement is valued because there are very high take-up rates of the free provision. Figures published by the Department this September showed that in January 2005, virtually all four-year-olds and 96 per cent. of three-year-olds benefited from the free entitlement. It is important that we find a way of securing that entitlement in the new regime of early years provision, instead of having a separation between child care and education.

The hon. Gentleman will know, because he will have read the 10-year child care strategy setting out our intentions, that we are committed to ensuring that children and families continue to benefit from free entitlement and that it is extended. Currently the free entitlement is to 12.5 hours a week for 33 weeks a year in non-maintained settings and 38 weeks a year in maintained settings.

That is the current position and from April, we shall extend the existing offer to all parents. In whichever setting, the entitlement will be extended to 12 and half hours a week for 38 weeks. Part of our ambition is to make the offer 15 hours for 38 weeks for all parents from 2008. An aspiration was expressed in the 10-year strategy to increase it further thereafter, perhaps up to 20 hours a week. The powers in clause 7 enable us to make regulations to implement that plan, which we intend to do. It is fully funded and we are providing additional money in the dedicated schools grant of £82 million a year in order to fund our aspirations until 2008.

Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

When will the Minister be able to publish a statutory instrument under the provision? Is it likely to be after April next year?

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

We have consulted on the provisions that will go ahead from April next year. They have already been regulated for under the current system. As far as the Bill and the extension of provision in future are concerned, as with other regulations under the legislation, we are already drawing up plans and   there are details of our intentions in the document to which I referred earlier that my right hon. Friend the Minister circulated to the Committee. From next year, after Royal Assent, we shall be consulting, and thereafter, hopefully by the spring or summer of 2007, the regulations will be in place and ready for implementation.