§ 3.5 p.m.
§ The Paymaster General (Lord Belstead)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty having been informed of the purport of the Further and Higher Education Bill has consented to place her prerogative and interest so far as they are affected by the Bill at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 3 [Part-time education, and full-time education for those over 18]:
Baroness David moved Amendment No. 1:
Page 3, line 2, leave out ("adequate") and insert ("sufficient").
§ The noble Baroness said: My Lords, I should also like to speak to Amendments Nos. 2, 3, 10 and 17.
On 14th January 1 moved amendments to seek to discover any differences in the use of the word "sufficient" which appears twice in Clause 2, and "adequate" which appears in Clauses 3, 4 and 11. The word "inadequate" appears in Clause 6. At col. 162 the Minister said that Clause 2 carries over the duty imposed on local education authorities under Section 8 of the 1944 Act,
to secure that there shall be available for their area sufficient schools … for providing secondary education".
§ The 1944 Act was passed in the middle of a war in which many schools had been destroyed, when compulsory education ceased at the age of 14, when most children did not receive secondary education but completed their education in schools for 5 to 14 year-olds, and when it was hoped that the school leaving age would be raised to 15 as soon as possible after the war.
§ At that time it must have been considered to be a very high priority to provide sufficient secondary schools after the war. In any case, comparatively few attended courses, either full-time or part-time, in what we now think of as further education. However, local authorities took seriously their new duty to provide further education. I doubt whether they considered that their duty to provide further education was less strong than their duty to provide secondary schools.11
§ Indeed, many provided further education colleges some time before they completed the provision of secondary schools for all pupils. Building resources were limited. Administrators may have given higher priority to capital programmes for schools than for further education.
§ It was possibly those decisions that led those in the Ministry of Education to the view that the term "sufficient" in Section 8 of the 1944 Act imposed what the Minister on 14th January called a stronger power than the term "adequate" in Section 41 of that Act.
§ The year 1944 was a long time ago. Conditions have changed greatly since then. In particular in some areas of the country local authorities provide all their post-compulsory age education in tertiary colleges. In those places there are no institutions operating under schools regulations. Moreover, further education, both full-time and part-time, has expanded greatly.
§ I had thought that there was no real difference of strength between the duties being imposed. Whatever was said or thought 48 years ago in 1944, I find it difficult to believe that when we now seek by legislation to impose duties, we do so implying that there are various strengths of duty which future Secretaries of State, funding councils, local education authorities or further and higher education institutions are able reasonably to judge now, or perhaps 48 years in the future. In particular, it would be wrong to suggest to new funding councils set up to finance what is called in the Bill the new further education sector that there are differences of strength in the duties that they are given based on what some regard as an accepted interpretation about the provision of schools in 1944.
§ The Minister stated that "sufficient" is thought to be stronger than "adequate", and that to use the latter rather than the former would be to level down. There should be no misunderstanding about possible levels of duty or commitment to part-time education or to those perhaps with learning difficulties. My amendments therefore seek to avoid that possibility by using the word "sufficient" or "insufficient" rather than "adequate" or "inadequate" where they occur in the Bill. I beg to move.
§ Lord Belstead
My Lords, this is a matter which we have discussed at previous stages of the Bill. I have made the point that we are not in the business of changing the strength of duties. The legislation seeks to set out where, in future, those duties should lie. The use of the word "sufficient" in Clause 2 carries over to the funding councils the duty imposed on local education authorities under Section 8 of the Education Act 1944, as the noble Baroness recognised. The use of the word "adequate" in Clauses 3, 6 and 11 reflects the wording of the duty imposed on LEAs under Section 41 of the Education Act 1944.
In Clause 4 the drafting does not reflect an existing provision. The requirement there is to use independent-sector placements for students with learning difficulties when provision in the funding council sector would not be adequate for the individual student who is so disabled. It is important to note that 12 in Clause 4 the concept of adequacy is tied to the needs of the individual student. I believe that that accurately expresses the criterion to be applied.
I do not want to make too much of the difference between those two terms. Any dictionary will tell us that "sufficient" means, among other things, "adequate", and "adequate" means, among other things, "sufficient". As I explained to the noble Baroness on Report in response to her probing the use of the word "sufficient" in Clause 2, it has been generally accepted for the purposes of the duty on local education authorities under Section 8 of the 1944 Act that the term imposed a somewhat stronger duty than the term "adequate" in Section 41, to which the noble Baroness referred. In tabling the amendments, she is seeking therefore to "level up" the duty in respect of part-timers and those aged 19 or more. The Government's view is that the existing duties taken from the 1944 Act are correct, and we do not want to alter the wording in the way suggested.
One of the reasons I say that is that of course Clause 2 contains the principle of meeting the reasonable needs of all persons to whom the duty extends. Clauses 3 and 11 do not go quite so far, but, in my opinion, we should not get too concerned about this matter. There is still a firm duty in Clauses 3 and 11 to secure an adequate service, and adequate means fit for the purpose or, as I have said, sufficient. I hope that that meets the noble Baroness halfway.
§ Lord Campbell of Alloway
My Lords, with respect to the noble Baroness, the courts are bound to construe "adequate" as "reasonably sufficient". There is no mileage in this matter. It is a question of words which, in the long run, will come to the same thing.
§ Baroness David
My Lords, I was encouraged to table the amendments because the Minister said that "sufficient" bears a stronger meaner than "adequate". When I spoke previously I quoted the Oxford Dictionary definitions which were similar, as the Minister said. I must accept what the Minister has said. I shall read what he said, because I am not wholly convinced by what he said about the duty being strong enough in respect of the other clauses. I can do no more now. I am pleased that I raised this matter. It has been an interesting discussion, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Persons with learning difficulties]:
§ [Amendments Nos. 2 and 3 not moved.]
§ 3.15 p.m.
Lord Campbell of Alloway moved Amendment No. 4:
Page 4, line 17, at end insert:
("( ) The Secretary of State may if it appears to him to be expedient in implementation of the provisions of this section—
§ The noble Lord said: My Lords, the amendment affords a mere permissive exercise of discretionary 13 power to the Secretary of State. It was not until Report stage that the Government accepted the substance of amendments designed to introduce an express statutory duty to secure provision to meet the requirement of persons with learning difficulties, and then introduced their own amendments to such effect, which were acknowledged with gratitude on all sides of your Lordships' House.
§ It was a formidable advance, but it left in its wake one matter for clarification with which my noble friend Lord Cavendish dealt, and to some degree left open. I return to it merely to gain your Lordships' opinion as to what, if anything, should be done about it. It then became obvious, as your Lordships will appreciate, that without some procedure for assessment it would not be possible to discharge that new duty, and that other procedures relevant to the discharge of the duty under Clause 4(2) and (4) were appropriate. That was recognised by my noble friends the Ministers for, on the first day of Report when outlining the Government's conclusions on the arguments adduced in Committee in favour of establishing that express statutory duty, my noble friend Lord Cavendish referred to the Government's intention in that regard and to how that duty would be implemented. He said that it was the intention of the Government to issue guidance on certain matters, but that they would need notice of the question of my noble friend Lord Renton as to the form in which such guidance was to be given.
§ The point is made, first, that the amendment could not have been tabled at an earlier stage of the Bill. I say that to avoid having to apologise too profusely for raising it so late. It could not have been raised earlier. Secondly, procedures in the implementation of Clause 4 have been considered only on Report, inevitably. Thirdly, it is not known whether it is the Government's intention to issue guidance with or without legal efficacy. That is the point.
§ According to my noble friend Lord Cavendish, the purpose of issuing such guidance to the LEAs is to ensure that there is no doubt as to the extent of existing duties. He referred, for example, to making it a condition of grant that each funding council should obtain specialist advice when it was not available internally—a matter discussed on the Floor of your Lordships' House at some stage; secondly, to procedures of assessment being given proper attention without introducing undue inflexibility—another matter discussed in your Lordships' House; thirdly, to the interpretation of "disproportionate expenditure"—another matter discussed in your Lordships' House; and to transport for students with disabilities, which was discussed, and placement, which I believe was not discussed.
§ The amendment is essential for clarification. It is permissive, as your Lordships see. It is not mandatory. It enables the Secretary of State, if so advised, to issue codes of guidance under paragraph (a) or codes of practice under paragraph (b). It matters not what they are called. What matters, as your Lordships well know, is the legal status of the codes. Usually one refers to a code of guidance as being a code of guidance with no legal efficacy. A code of practice 14 sometimes has legal efficacy. However, if the Secretary of State wishes, for example, in the sphere of assessment to issue a code of practice which had a form of legal efficacy, without the trigger clause, as it has been called in other debates, provided by paragraph (b), he cannot do it.
§ The amendment is purely enabling. It does not require the Secretary of State to act. It accords broadly with the Bill's structure, because your Lordships will see in Clause 3(6) the power to amend a schedule by order, a matter which was discussed. If the Secretary of State wants to exercise that form of power in relation to children with learning difficulties he could do so, for example, as regards assessment, and with regard to some of the other matters, such as placement, he could issue codes of guidance under paragraph (a). It is entirely a matter for him.
§ I cannot assist your Lordships further save to say that the question of assessment is crucial. There is an extremely intricate and complex statutory regime for assessment under the 1981 Act. At the age of 16 a person can suddenly change from the regime under the 1981 Act to the new regime provided by this Act.
§ It is important because we do not suggest, and have never suggested, that assessment should be on the same legalistic and tightly controlled lines of the 1981 Act applicable in this sector; but there should be some form of assessment. Without assessment the duties cannot be fulfilled. Therefore, your Lordships may think it sensible to have an enabling clause so that that can be done.
§ Finally, I thank my noble friend Lord Belstead for his courtesy and consideration in entertaining discussions with me on this matter. I believe I am at liberty to say that there are objections to the amendment but I hope that he will allow me to say that I have never quite understood what they are. I beg to move.
§ Lord Addington
My Lords, the noble Lord, Lord Campbell of Alloway, has put his finger on the nub of the problem as regards deciding what kind of help should be given to children with special needs. This amendment would help in that regard by making provision for the issue of guidelines within which the authorities can work. Moreover, not only can the Secretary of State make but he can also change such guidelines. As more studies are done on existing disabilities and, indeed, those yet to be discovered, the Secretary of State will be able to change the legislation to ensure that the right help is given to students with disabilities.
§ Lord Henderson of Brompton
My Lords, I add my thanks to those expressed by the noble Lord, Lord Campbell of Alloway, to the noble Lords, Lord Belstead and Lord Cavendish of Furness. The amendments which they made to Clause 4 have gone all the way towards meeting us. The reason I support this amendment—it is permissive and enables the Secretary of State, if he so wishes, to issue codes of guidance or practice—is to raise two points which still remain unclear. If they could be cleared by means of an answer this afternoon, so much the better. If that 15 is not possible, the codes of guidance or practice will make an admirable vehicle for clearing up any doubts which may reside in the minds of some of us.
For example, are we right in understanding that the provision for students aged under 25, which have been extended from the school provisions, are to be free as are the school provisions? That is not clear on the face of the Bill and perhaps that could be clarified.
Secondly, it is not absolutely clear that Clause 4 extends support to those particular categories of disabled person; for example, support provided by interpreters, readers or specialist equipment necessary for blind or deaf people. We should gratefully receive any clarification on that.
I have given notice of my questions to the Minister. It seems to me that the amendment in the name of the noble Lord, Lord Campbell of Alloway, which provides for codes of practice or guidance is a very good peg on which to hang those two questions. I should be grateful for an answer either now or perhaps in writing later.
§ Lord Cavendish of Furness
My Lords, my noble friend explained why this amendment has been brought forward rather late. I accept his explanation and believe that there is no need for an apology.
This amendment would empower the Secretary of State to issue codes of guidance to ensure that the requirements of the Bill in relation to students with learning difficulties were properly understood and to issue codes of practice, in the form of statutory instruments, specifying how those requirements must be met. I understand the anxiety which has led my noble friend Lord Campbell of Alloway to bring forward the amendment, but the Government do not believe that it is necessary or helpful.
As your Lordships will know, we have taken heed of the anxieties expressed in previous debates about the arrangements in the new sector for students with learning difficulties. Those have been generously acknowledged. We brought forward amendments to introduce a new duty in Clause 4 as regards the use of placements in independent specialist colleges and in Schedule 8 to clarify LEAs' responsibilities on transport in relation to those students. In addition, we have undertaken to require the funding councils, as a condition of grant, to ensure that they have the benefit of specialist advice on the education of students with learning difficulties.
We have undertaken also that the Secretary of State will issue guidance to the further education funding councils on their responsibilities in the new further education structure. This guidance will cover in particular the crucial question of assessment, and the application of the phrase "disproportionate expenditure", to which my noble friend drew our attention. I believe that those additional measures in relation to students with learning difficulties have been welcomed by your Lordships.
This amendment now seeks to take us further in the guidance area. First, it creates a specific power for the Secretary of State to issue guidance. However, the Secretary of State needs no specific power to do so. That part of the amendment is redundant.
16 The amendment also introduces the further concept of codes of practice that would specify how the Bill's requirements are to be discharged. These would take the form of orders subject to the negative resolution procedure. It is important to be clear about the parliamentary process involved. Clause 87 requires orders made under the Bill to be made by statutory instrument, except in relation to provisions which are excepted from this requirement. My noble friend has not included anything to make the proposed new subsection an excepted provision, so any statutory instrument made under his provision would require Parliament's approval by, as I mentioned, the negative resolution procedure.
The amendment would thus add to the Secretary of State's armoury. In addition to issuing guidance or codes of practice in the normal way he would be empowered, in relation to further education students with learning difficulties, to issue codes of practice which would have the force of statutory instrument. I am sure that that addition to the Secretary of State's armoury is intended to be helpful. However, the effect would not be helpful in practice. First, the availability of two kinds of document would create confusion. It would risk devaluing guidance or codes of practice not issued under this proposed power because they would be seen not to have the same statutory backing.
Furthermore, the procedure proposed would apply only to students with learning difficulties. Would that not devalue any guidance which the Secretary of State may issue on other topics? I fear that the two-tier structure proposed by my noble friend would introduce at least as many problems as it would solve. The amendment gives statutory force to codes of practice issued by the Secretary of State detailing the procedures to be followed in making provision for students with learning difficulties. I must say that I cannot follow my noble friend. As I understand it, his contention is that the duty towards students with disabilities is too vague to be enforceable. Requirements in the form of statutory instruments would give the courts more to bite on. My noble friend, in his professional practice, has involvement in cases of this kind and we must respect his experience. However, with the greatest respect, I do not agree with him on the nature of the duty in the Bill, nor, therefore, on the need to reinforce it as he proposes.
The noble Lord's anxiety, as I understand it, stems from the duty in Clause 4 being merely to "have regard" to the needs of students with learning difficulties. That anxiety is misplaced. It overlooks the fact that the primary duty towards students with learning difficulties is not the "have regard" provision of Clause 4, but the duty to secure educational provision contained in Clauses 2 and 3.
As your Lordships know, the duty to secure educational provision is in Clauses 2 and 3, subsection (1) in each case. That duty applies to all students, whether or not they have disabilities. The duty is perfectly clear and is enforceable, if necessary, through the courts. What Clause 4 then provides is additional duties towards students with learning difficulties. Clause 4 requires the funding councils, in discharging the primary duty to secure educational 17 provision in Clauses 2 and 3, specifically to have regard to the needs of students with learning difficulties, and to use placements in the independent specialist colleges where appropriate. For students with learning difficulties Clause 4 thus provides a reinforcement of the primary duty to secure educational provision in Clauses 2 and 3. Clause 4 does not need to contain a duty stronger than "have regard", because the duty to secure educational provision is elsewhere.
This is an important amendment, and I have spoken at some length. In essence, the Government's position is simple. The amendment would be harmful, as the two-tier structure of guidance that it would introduce would cast doubt on the worth of guidance not issued by statutory instrument and thus cause confusion. Most important, the amendment is unnecessary. It is intended to remedy a perceived inadequacy of the duty in Clause 4. That is unnecessary because the duty to secure educational provision for students with learning difficulties is unambiguously set out in Clauses 2 and 3.
The noble Lord, Lord Henderson, kindly gave me notice of the questions he intended to raise. The first concerns fees for adult students with learning difficulties. Nothing in the Bill changes the present arrangement. In making provision the colleges in the new FE sector and the LEAs will, as now, have discretion as to the fees they charge. They will also be able to waive or reduce any fees in specific cases. The LEAs will retain the power to provide discretionary awards which may cover fees or maintenance. Those options continue.
The second question raised by the noble Lord, Lord Henderson, concerned the availability of specialist equipment and human support for students with learning difficulties. Under present arrangements LEAs ensure that facilities such as sign language, interpreters or braille embossers are available. Under the new structure LEAs will retain the ability to provide the support while making educational provision. The further education funding councils also will be able to provide the same support in this sphere of responsibility.
I hope that I have answered the questions of the noble Lord, Lord Henderson, and that I have been able to persuade my noble friend to withdraw the amendment.
§ 3.30 p.m.
§ Lord Campbell of Alloway
My Lords, my noble friend has not persuaded me to withdraw the amendment by anything that he said. But your Lordships will be relieved that I do not propose to press the matter to a Division. I shall speak briefly.
There are essentially three objections made by my noble friend Lord Cavendish. First, he says that the amendment is harmful; then he said that it is not necessary and, finally, that it is not helpful. That it is harmful is pure nonsense. The Department of Employment, as all your Lordships are aware, runs a two-tier code of practice, part under (A) and part under (B). I used it as a precedent for the drafting of my amendment, so that response is so much nonsense.
18 Secondly, my noble friend said that the amendment is not necessary and not helpful. For the sake of saving a little time, I shall roll both those into one. If the Secretary of State does not think that they are helpful or necessary he will not use them. What then would be the object of passing the amendment? I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 5 [Administration of funds by councils]:
Lord Renfrew of Kaimsthorn moved Amendment No. 5:
Page 5, line 13, leave out ("subject to that").
§ The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendment No. 40, which relates to the higher education funding councils. It employs precisely the wording moved at Report stage but not, at that late hour, pressed to a Division. It may look like a drafting amendment, containing merely three words. However, in moving the amendment, I should like the House to convey the message, which is an important one, "Do not deter benefactors". That is what the amendment is concerned with.
§ I am sure that it is not appropriate to repeat at length the points I made in my speech at Report stage. However, the issue is quite simple: that money deriving from benefactors, from private sources, in the hands of universities and departments should not be required to be used to repay funding councils, for whatever reason, when the funding councils are not satisfied with the way their own money has been spent. If one looks carefully at the Bill that is entirely what is in question.
§ It is clearly desirable that there should be a separation between, on the one hand, the money deriving from the Government paid to the funding councils, together, of course, with the councils' repayment obligations if terms and conditions are not fulfilled, and, on the other hand, the funds derived from private sources, particularly benefactors. The meaning of the amendment is not in doubt. What was disputed by my noble friend the Minister in earlier discussion is its utility. The real point is that it is wrong to kill the goose that lays the golden egg. I can think of no more effective way of deterring a benefactor than giving the benefactor the impression that his or her money may be used to repay the Government when the Government are dissatisfied in regard to terms and conditions.
§ One noble and learned Lord for whom I have great respect observed to me that, if a department has a general purpose fund derived from private sources, it may be not unreasonable to expect it to use that funding when the department has been found by the funding council or the Government to be in default as regards terms and conditions laid down by the funding council. On reflection, the noble and learned Lord is quite correct; it is probable that a department will wish to do so if it has spare money lying around. But it should not be required to do so in the mandatory way which would result from leaving the words "subject to that" in the Bill.19
§ Perhaps the most telling argument is that the phrase, "subject to that" was not contained in the 1988 Act although the rest of the wording is much the same. It has been inserted into the 1988 Act with no good purpose from the point of view of those seeking to raise money for universities. It would be splendid if it could now be deleted from the Bill. I beg to move.
§ Lord Campbell of Alloway
My Lords, I support the noble Lord in this benefactory goose argument, upon which I have addressed the House before.
§ Lord Adrian
My Lords, I too wish to support the amendment. It seems to me that the arguments given by the noble Lord, Lord Renfrew, are compelling. Where the council makes the conditions and is both the judge of necessity and the receiver of the repayment, the absence of the words "subject to that" introduces a necessary arm's length between the council and the institution's resources.
It may be that donors could get round the difficulty by setting up trusts for specific purposes. However, in institutions in higher education—and I am sure it applies elsewhere—the freedom and flexibility of income from general endowment is of enormous importance.
§ The Paymaster General (Lord Belstead)
My Lords, when my noble friend Lord Renfrew moved a similar amendment on Report to what was then Clause 61, I responded by pointing out that the words "subject to that" served a useful if very limited purpose. That purpose is to guard against a situation in which an institution which has failed to comply with conditions attached to grant and has exhausted the funds provided by the council, argues that repayment or payment of interest would be improper because it would mean resorting to funds derived from sources other than the council, which in turn would mean that the council's conditions would relate to such funds.
That said, I recognise that these circumstances are very unlikely to arise. I also acknowledge that the words do not appear in corresponding provisions in the Education Reform Act 1988. As a matter of fact, they do not appear in the corresponding Scottish Act which is going through Parliament at the present time. Apparently that has not caused difficulties for either the Universities Funding Council or the Polytechnics and Colleges Funding Council or, as I have said, in the Further and Higher Education (Scotland) Bill.
I accept the importance of the principle that the funding councils should not be able to interfere with the use made by institutions of private income. That was eloquently and vividly referred to by my noble friend in moving the amendment. I recognise that the words "subject to that" could be seen as a violation of that principle. I therefore have pleasure in accepting this amendment.
§ Lord Renfrew of Kaimsthorn
My Lords, that is a most helpful response from my noble friend. I am grateful to the noble Lord, Lord Adrian, and to my noble friend for supporting me on this matter. I believe that the Government are sending a helpful signal to benefactors that they may be assured when 20 they give their money to a university or a department that it will not be improperly tampered with. I am most grateful.
On Question, amendment agreed to.