HL Deb 10 February 2000 vol 609 cc798-818

(". The Council may only exercise the power conferred by section 11 in a case where it has reasonable cause to believe that the governing body of the institution is managing the affairs of the institution or discharging any duty imposed on them by or for the purposes of the Education Acts or this Act in a way which is having, or is likely to have, an adverse effect on—

  1. (a) the quality of education or training provided by the institution; or
  2. (b) the proper use of public funds under the administration of the institution.").

The noble Baroness said: My embarrassment at not voting on Tuesday evening was greatly overshadowed by the Government's inability to produce even the payroll vote late that night. I remember waiting, with some anguish, night after night, for the House to adjourn in order that I could go home because it was always deemed necessary that at least the payroll vote, if not others interested in the Bill, should remain until the end of business. However, the noble Baroness not only offended some in this House who actually believe in further education, but also others outside the House. Since that evening, phone calls that I have had from further education colleges and people representing them have shown how deeply offended they were by the sweeping statement made by the noble Baroness when she said that the Government's inheritance on taking office was one of sleaze and mismanagement in the further education sector, that had been allowed to flourish by a government who took a back seat whenever they could—

Baroness Blackstone

Let there be no mistake about this. I was saying that the previous government totally failed to ensure that there was a proper system in existence, when there was a breakdown in the performance that we expect from colleges of further education, with respect both to the standards of educational provision being provided and to financial probity. I was referring to the previous government's total failure to create a system in which those problems could be dealt with. I was in no way suggesting that the entire further education system was performing inadequately or suffering from a failure to achieve the kinds of standards that we expect. I was suggesting that there were a number of colleges—and I will name them a little later during the debate—where sleaze, incompetence and financial mismanagement as well as poor educational standards were allowed to flourish because of the previous government's failure to institute a proper system to ensure that such things did not happen.

Baroness Blatch

The words used by the noble Baroness were "sleaze" and "mismanagement". I have gone back to the statute to look at this, and in fact the powers to deal with such situations were there and still are there. The people who did not take action were those on the Further Education Funding Council. They had the powers to intervene; they had the knowledge of what was going on and in fact they did not use the powers as early as they might have used them, or indeed in the way that they should have used them. Certainly the colleges themselves were very concerned at the way in which the noble Baroness referred to the further education sector at that time.

I have some sympathy with them, but they believe that the powers were there and could have been used by the Further Education Funding Council. However, those powers were not used by the council. Several speakers from the Liberal Democrat Benches also spoke of the powers that could have been used. Nevertheless, the noble Baroness will know that when I spoke on the evening in question I spoke of intervention, and especially of intervention at a point when it could either prevent trouble or prevent trouble getting worse in any college. That is important, and the noble Baroness will know that I have no objection whatsoever to the system that she described, of additional governors who could be put in place to help a college and either prevent difficulties arising or, if the intervention has come rather late, to prevent the situation getting worse. They could help a college in such a situation to get back on track.

However, the powers in the Bill are open-ended. There is no trigger mechanism for them and there are no qualifying clauses which would dictate how the powers are to be used. There is no way in which the colleges could know what processes could be put in place if these powers were to be triggered. Therefore it is important that this power which, as I say, is open-ended at this moment, should be qualified in some way. The noble Baroness will notice that I have put forward a suggested clause which would follow Clause 11 which says that, The Council may only exercise the power conferred by section 11 in a case where it has reasonable cause to believe that the governing body of the institution is managing the affairs of the institution or discharging any duty imposed on them by or for the purposes of the Education Acts or this Act in a way which is having, or is likely to have"— which is what the noble Baroness was wanting the other evening— an adverse effect on—

  1. (a) the quality of education or training provided by the institution; or
  2. (b) the proper use of public funds under the administration of the institution".
These are what the noble Baroness said were the conditions under which these powers would be used. I think it would be helpful to the colleges to have that on the face of the Bill, knowing the situation in which they would be used.

Another matter which is greatly troubling the colleges is that there have been discussions with the department for some time now regarding the limited liability of governors. They are in a very vulnerable position in this sort of situation, especially those governors who do act reasonably and in good faith. We all know that acting reasonably and in good faith is normally a defence. However, it is very important that in some way the Government are able to clarify the position and liability of governors. I have in fact put down an amendment today, which will be seen on the Marshalled List on Monday, that will attempt to help this situation.

The important thing is that if there is to be intervention in the colleges, it should not be subjective. It should be on the basis of having concerns either about the standards of education in a college or the administration of the college and the effective use of resources. These resources are, as the noble Baroness rightly said the other evening, public funds and the protection of public funds is important. I believe that this qualifying clause would help. If the Government are minded not to include the suggested clause, one really has to join the colleges and wonder what it is that the Government are planning in terms of the use of these powers.

Perhaps I might just say before the noble Baroness rises to speak that I am not speaking to Amendment No. 168A. I shall leave that amendment to my noble friend Lord Roberts when he comes to deal with the Welsh clauses. I beg to move.

5.15 p.m.

Baroness Sharp of Guildford

I believe that there is real concern about the open-ended nature of the powers given to the LSC in Clause 11. It was for that reason that we from these Benches put forward Amendment No. 79, which was debated the other evening. Since that time I have reread in Hansard our debate, and have thought carefully about the amendments put forward by the noble Baroness the Minister.

As I said on Tuesday night, we were all disappointed at the attitude of the Government on this issue. The Minister made it clear that the power to appoint governors would be used only in the last resort when things are going badly wrong. It was in that spirit that Amendment No. 79 was put forward: that the powers granted under Section 27 of the Further and Higher Education Act 1992 were sufficient to cover the position. We objected that using these powers would be too cumbersome and would prevent action at an early stage when things were beginning to go wrong, arguing that the L SC should not operate by a ministerial fiat but should have powers of its own.

This new amendment put forward by the noble Baroness, Lady Blatch, would seemingly overcome this obstacle, in the sense that it would give the Learning and Skills Council the power to intervene in its own right in these exceptional circumstances. From these Benches we have some reservations about the powers granted to the council, even under this amendment. For that reason, although we would support it in spirit, we are inclined to prefer to think further on it and perhaps return to the issue at Report stage.

Lord Dearing

I rise for the first time in this House to take part in the discussion of a clause. In doing so I now realise how much more comfortable it was to sit with the files, as an official, as I did 30 years ago, to write notes for the Minister, rather than to stand up and without the benefit of the files try to make a contribution.

For some years I was the chairman of a body called the Polytechnics and Colleges Funding Council. Indeed the noble Lord, Lord Baker, appointed me to that office. It may be that an experience I had on one occasion, imperfect though my memory may be, will be of some relevance. It made me wonder, with respect, whether the very understandable concern to introduce safeguards, as proposed by the noble Baroness, Lady Blatch, might circumscribe the ability of the council to respond to a situation, because it is very difficult to anticipate in a safeguarding clause the kinds of circumstances which may arise.

The circumstance which I imperfectly remember was that of a college of higher education. It got into financial difficulties and then received an adverse report on its academic standards. A very real crisis had developed. The governing body responded by proposing, in effect, the closure of the college and the transfer of all the students to another institution. When the case came before the funding council, it seemed to us, first, that the procedures adopted by the college had been imperfect and, secondly, that the decision it had reached was not in the best interests of the students.

The governing body had taken its decision in good conscience, but we thought the decision mistaken. The council indicated that it opposed the decision and there could have been a very difficult impasse. Happily, the situation was resolved by the honourable resignation of the chairman and one or two other members. I was then able to use my good offices to suggest certain other appointments. So the problem was resolved in a way preferable to what had been originally intended and in the best interests of the students.

If there had been an impasse, I am not sure, without powers to bring in new people and thus unlock minds, that the matter could have been solved satisfactorily. Any powers of the kind proposed by the Government should be used sparingly and only after every attempt has been made to resolve matters by agreement and negotiation. However, sometimes that is not possible. I believe that it is in the interests of students for the council to be able to make two appointments and then be accountable for the action that it has taken.

Baroness Blackstone

I hope the Committee will forgive me if I respond to this amendment at some length. I believe that we are discussing an important matter. We are agreed that the LSC should have the power to intervene. There is nothing between us on that. I return to the points I made when debating amendments to Clause 11 about the need to intervene early. I understand that the concerns of the noble Baroness are about the actual circumstances in which the powers may be used. She referred to the need for triggers on the face of the Bill for determining when the power should be exercised. She has now produced an amendment which would set out the circumstances in which the LSC could exercise the power. But again I am afraid she has missed the point. We must look back at the kind of circumstances which gave rise to the need for this power in the first place.

In our earlier debate I mentioned Halton College. The report published by the Comptroller and Auditor General with the title, Investigations of alleged irregularities at Halton College, lists 14 allegations that were received and investigated by the Further Education and Funding Council. Some were found not to be substantiated. Some were found to be partly substantiated. Some were found to be fully substantiated. In the PAC's 37th report, published after its consideration of the Comptroller and Auditor General's report, the committee drew out some of the devastating consequences of what went wrong. I should like to quote from the PAC's first conclusion: It is highly unsatisfactory that Halton College overclaimed almost £14 million, and that to a large extent these overclaims evaded financial controls in place at the college and in the Funding Council. One immediate impact of the need to repay this money is that 114 people will lose their jobs, and this will cost the taxpayer £1.8 million". The committee went on to give details of a range of other serious concerns about what had happened. As many noble Lords will know, this committee is not known for issuing plaudits, but in this case I think it is worth noting two of the committee's comments. First, in respect of the action taken by the FEFC, the committee said: We welcome the steps taken by the Funding Council and the college to improve governance, internal control, management and audit arrangements at Halton College". Incidentally, I think that what the noble Baroness said, arising, she says, from discussions she has had with the AoC about the funding council, is grossly unfair. I would wish to place on record my appreciation of the efforts that the FEFC has put into tackling problems at colleges. I wish to note also that the provisions in Clause 11 reflect points made to me by its chairman, my noble friend Lord Davies of Oldham and its chief executive, Professor David Melville. They are the practitioners in the front line and it is only right that the form of that clause is informed by their unfortunately all too considerable experience of dealing with problems in certain colleges.

Secondly, on the measures that we introduced to improve the accountability framework for further education colleges, the committee had this to say: We strongly support the positive response of the Department to the problems uncovered at Halton and Bilston Community College on which the Funding Council has recently published a highly critical report". The committee referred to Bilston College and I should like to mention a number of points about it as well. The FEFC commissioned an inquiry into the future of this college which was published in March last year. It was headed by Terry Melia, the former chief inspector of the council. The college had been the subject of the most critical inspection report on a further education college ever published by the council up to that time. The inspection report highlighted deficiencies in both the governance and the management of the college. It found serious weaknesses in many curriculum areas and cross-college services that impact directly on students.

Baroness Blatch

I thank the Minister for giving way. Can she tell the Committee what powers the FEFC lacked for picking up these points earlier and for taking action even earlier than it did?

Baroness Blackstone

I shall come to that later in my response to the noble Baroness's amendments. I shall return to the particular case of Bilston Community College. The college's financial position was "parlous". Terry Melia's report found that the management and financial systems of the college were unreliable. Indeed, his inquiry team could not with any certainty be sure of the financial position of the college. The report noted that the corporation had not been conducting its business in accordance with its instrument and articles of government. It had not fulfilled its responsibilities under its financial memorandum with the funding council. College budgets did not provide a sound basis for the college's continuing solvency. Financial planning and monitoring had been imprudent. There was no systematic management of the college's provision. There was no coherent management of student support. I am afraid I could go on at some length.

The sad conclusion reached by the inquiry team was: We see no future for the college as an independent corporation". Following the normal statutory processes, it was my task to consider the proposal made by the council to the Secretary of State to close the college. Regrettably, I saw no option but to agree to this last summer.

The reason why I have illustrated these issues at some length is not to restate the case for having these provisions in the Bill. We have already agreed that and there is common ground between us. Rather, it is the very wide-ranging nature of the issues that the FEFC at present, and the LSC in future, may have to tackle. I can assure the noble Baroness that since we last debated these issues we have thought long and hard about whether we could go some way towards meeting her concerns. But as soon as we begin to look at the realities on the ground—and I have only illustrated two of a number of cases in which I have had personal involvement—it immediately becomes evident that as soon as we start classifying or prescribing circumstances and situations or conditions to be met, we run into problems. I remain extremely unhappy that we should impose restrictions of this kind on the face of the Bill.

The issue is this. When we start limiting the power and ruling certain things in, we automatically rule everything else out. As I have tried to indicate through the examples that I have given, the kind of problems that have been encountered cannot always be readily categorised and pigeonholed. The LSC must be able to act flexibly and responsively if concerns arise at a college.

I turn now to the existing power. The existing power for the FEFCE to nominate two additional members to governing bodies was provided without constraints by the previous government in the Further and Higher Education Act 1992. I must repeat that if we did not include anything in this Bill, the LSC could be given a power to nominate additional governors in the same way as the funding councils do now, and it would be without constraint. However, the power is limited to nomination, not appointment, leaving the LSC open to the possibility that it could be frustrated by delaying tactics. This provision, which is designed to allow swifter intervention, would avoid that kind of delay and make the operation of the power more effective. We are making effective the use of an existing power upon which the previous government saw no case for including constraints. Therefore, I find it particularly surprising that the noble Baroness, who was a member of that government, now wants to impose such constraints on the LSC.

If the noble Baroness's amendment is accepted, it could prove less effective than the existing provision under which the FEFC has power to nominate two people for membership of a governing body. That power of nomination is not limited in any way by the factors which are identified in this amendment. Therefore, the noble Baroness has, I am afraid, committed herself to an amendment which, in practice, will make it more difficult for the LSC to make an early intervention. At the same time, she has gone on record as saying that there is a case for early intervention and that it is right that additional governors should be appointed. I do not feel that the noble Baroness can have it both ways.

Given the ever-present threat of judicial review, there can he little doubt that the noble Baroness's amendment will act as a disincentive to early action by the LSC. I really do not understand why the noble Baroness has persisted with the matter when she has confirmed her agreement to the principles involved. I am grateful for that agreement.

Her amendment introduces a new condition before the triggers. The councils must have "reasonable cause to believe". Of course, the councils must act reasonably, as the noble Lord, Lord Dearing, has already said. They are public bodies and we require no less. Therefore, that is quite unnecessary.

However, I shell return to that particular point concerning reasonableness a little later as I should also like to comment on a separate point, relevant to this debate, that was raised by the noble Baroness, Lady Sharp of Guildford, when she spoke to her amendment to Clause 11. I take this opportunity to address that matter more fully. She was concerned that this power, seems an unreasonable interference with the autonomy of individual colleges".—[Official Report, 8/2/00; col 647.] I am afraid that I believe that to be overstating the case. We intend to respect the autonomy of FE colleges. We are not proposing an unlimited power of appointment, which, I agree, would undermine autonomy, but simply a maximum of two additional governors. For example, all further education corporation governing bodies have a minimum of 12 governors before any additional appointments are made. Therefore, the LSC appointments would always be in a minority. But the LSC must have a seat at the table so that its voice can be heard and listened to when things go wrong.

As for the noble Baroness's concern that Clause 11 gives the LSC carte blanche to act unreasonably, that is a misguided concern. As I believe the noble Lord, Lord Dearing, said, such a power would be used sparingly. No one has suggested that the FEFC is currently abusing its power to nominate members of governing bodies, and I have never heard the AoC even suggest that. Clause 11 merely expedites the process whereby the LSC gains representation on the governing body. In the unlikely event that the LSC proposed to act wholly unreasonably and appoint, governors for absolutely no good reason, not only would the ordinary process of judicial review be available, but the Secretary of State would be able to give a binding direction to the LSC under Clause 25, which we shall come to later. To the extent that Clause 25 does not already make that absolutely clear, we propose to bring forward an amendment in due course to put the matter beyond doubt.

The powers would be along the lines of similar powers that already exist in respect of the current FE funding councils. If a college considered that it was being treated improperly, the funding councils would enable it to ask for intervention by the Secretary of State. It would include as a matter of course the powers under Clause 11.

I must repeat that the Government cannot accept these amendments, for the reasons that I have given. However, I hope that the amendment that I propose will go part of the way to meeting the concerns of the noble Baroness, Lady Blatch. That will put directly on to the face of the Bill a way for a college—or, indeed, anyone—to approach the Secretary of State if it considers that the LSC is acting unreasonably. It would also address the concerns of the noble Baroness, Lady Sharp. Therefore, I hope that the noble Baroness, Lady Blatch, will withdraw her amendments. However, if she decides to divide the House, I hope that on this occasion she will not forget to vote.

5.30 p.m.

Lord Tope

Before the Minister responds, I thank her for explaining the Government's position so fully. I believe that, in spite of the slightly adversarial start to today's proceedings, we are not very far apart on this matter. I believe that we share the concerns expressed. The noble Baroness, Lady Blatch, of course, speaks for herself, but she has said, and I echo, that we understand and share the intentions of the Government.

On the other hand, I hope that the Minister recognises that the concerns which the noble Baroness's amendment seeks to address are shared not only by our Benches but by the FE sector generally. I am pleased that apparently she has recognised that point sufficiently to want to bring back an amendment at Report stage. Perhaps I may ask that we have early sight of that, when possible. I am sure that we can return to the matter at that stage.

I believe it is important that the Government recognise that, while their objective is shared, I am sure, by all, there is great concern, not only in this Chamber but outside, too, about the apparently open-ended nature of Clause 11. It may be that the amendment she intends to table will help to resolve some of that concern. We shall await it with interest.

Baroness Blatch

I am grateful to the noble Baroness for a full and comprehensive answer. I echo the points made by the noble Lord, Lord Tope, that there is a great deal of agreement about the principle and about the policy intention behind this issue.

I am sorry that the noble Baroness believes that my amendment is narrowly drawn. It covers absolutely every aspect of a college: the quality of the education and training provided—that is, its whole rationale for being—and the whole of the management. It states, where it has reasonable cause to believe that the governing body of the institution is managing the affairs of the institution or discharging any duty imposed on them by … the … Acts". In other words, it covers every aspect of the college. The amendment refers to "Education Acts"; that is, those that have been passed and this Act, in particular, which is about to be passed and which, as I say, is likely to have an adverse effect on the quality of education or the management of the college and/or the use of public funds. There is nothing narrow about that. It includes all the activities of the college.

I turn to the particular examples given by the noble Baroness. A number of us are still bemused that the FEFC, which continued to fund those colleges—and that was not the only example; there were one or two others—continued to fund them in the full knowledge of what was happening. The only eyes and ears for any Secretary of State past or present—in this situation are the inspectorates and/or the FEFC. It seems to me extraordinary that such a parlous situation was allowed to develop at that college and that the report to which the noble Baroness referred was the first manifestation of what was going on there. Therefore the appointment of two governors was extremely late in the day. I absolutely agree with the point made by the noble Baroness that early intervention would have been much more appropriate. An early exposé of what was going on at that college would have helped a great number of people, not least the students and the people in the local community.

It is not a narrowly drawn amendment. The noble Baroness has talked about strengthening the powers. I still believe that it is important for the colleges to know that any additional governors are nominated and/or appointed because of a reasonable view that there is something wrong. That is precisely what my amendment provides.

I spoke to the noble Lord, Lord Tope, before coming into the Chamber today. I know that Members on the Liberal Democrat Benches wish to give more thought to this matter because there are concerns about the use of a power.

What needs to be said and put on the record is that for every college that went wrong, many more colleges had no problems at all and served their local communities and students extremely well. They have enjoyed and made the most effective use of their autonomy. Therefore, it is important to balance the autonomy of the governing body and the running of an institution with taking sensible precautionary action where that becomes necessary.

The noble Lord, Lord Dearing, gave us some examples. Throughout what he was saying, I was thinking to myself that it was much too late in the situation which the noble Lord described. One would want to appoint the governors at the point at which the signs were picked up, either through auditing and/or inspection or by the funding council, which in future will be the skills council, that something is going seriously wrong. That would be on the basis of having some suspicion that problems were beginning and things were beginning to go awry. Intervention would then be wholly justified.

That is linked to another point, to which I shall return on a later amendment; namely, governors' liability. It is extremely important that, from time to time, governors see these matters for themselves. Some people operate in some institutions in such a way that the governors are not aware that something is going wrong until it is too late.

But I return to my original point. It is very odd that the FEFC waited so long to expose the problems in that particular college. I shall withdraw the amendment. I hope that discussions can continue and that we can reach an accommodation before the next stage of the Bill.

Baroness Blackstone

I am grateful to the noble Baroness for saying that she will withdraw her amendment. Just before she sits down, I want to make two or three small points.

First, I too want it on the record, as I think I said earlier this afternoon, that the vast majority of colleges do a very good job. But unfortunately, a small minority has not done so and it has been able to get away with that partly because the structures were not in place which allow the FEFC to intervene as quickly as it needs to.

It is precisely because of the autonomy of those colleges which the noble Baroness wants to see that the FEFC's position must be one whereby it abides by the law and takes care in how it operates. It must also collect the evidence before it can intervene. But once that evidence is collected, it must be untrammelled in its ability to do so.

The primary power existed under the previous government's 1992 Act but, unfortunately, an order had never been brought forward until this Government did so in October last year, making it possible for the FEFC to nominate up to two additional governors. We are now taking that one step further and allowing it to make that appointment.

Baroness Blatch

Is the noble Baroness saying that the FEFC could continue to fund for specific purposes, knowing that the money and resources given to those colleges was being abused and misused and could continue without any power whatever to do anything about it?

Baroness Blackstone

Unfortunately, most of the continuing funding of those colleges went on under the government of whom the noble Baroness was a member. As soon as this Government came into power, they immediately took action through the FEFC to sort out the appalling mess which had existed as a result of the failure of the previous government to have a proper structure in place.

5.45 p.m.

Baroness Blatch

That was not my question. Where was the lack of power which would have prevented the FEFC from saying to a college, "You are not receiving any more money until resources are being properly used"? The FEFC had power to hold moneys back. No Secretary of State can know what is going on unless he is told what is going on. Where was the lack of power? Under what power did the FEFC continue to fund a college knowing that things were going so badly wrong?

Baroness Blackstone

The issue at stake here is that the governing bodies of further education colleges have very considerable autonomy with respect to spending the money which has been allocated to them. There may be subsequent changes to the allocations but a large college already has substantial resources. A couple of those colleges got into a deficit position. At that stage, the FEFC was able to intervene.

Baroness Blotch

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Research and information]:

Lord Addington moved Amendment No. 80: Page 6, line 18, at end insert— ("( ) The Council shall carry out research into specific groups of learners and the learning process as relevant to such groups.").

The noble Lord said: With this amendment, we return to something of a hobby-horse of mine; that is, the provision of information and making sure that the correct information is available. It deals also with something of a parliamentary old friend; namely, "may" and "shall".

At present the Bill provides that: The Council may carry out research".

My amendment seeks to ensure that: The Council shall carry out research into specific groups of learners and the learning process as relevant to such groups".

Effectively, we are seeking to build up the bank of information. Most people who have been dealing with this problem—I referred to it during our previous debates in Committee—encounter enormous difficulties in trying to secure the right sort of information and to take the right sort of action. That leads to a prolonged process in trying to obtain the appropriate help for individual students, and it is probably the greatest bugbear of all the organisations which are dealing with those issues.

I suggest that this Bill provides us with the opportunity to build up a great pool of information on which it will be possible to call. It will be of tremendous help also to other sectors of education as it will set precedents which will be relevant to the schools and higher education sectors. We should grab that opportunity as it will make life easier for the whole sector. I beg to move.

Baroness Blatch

I wish to speak to Amendment No. 92, which is grouped with this amendment. Also, I support the noble Lord, Lord Adeington.

I wish to qualify the word "adequate" which is difficult fully to understand in legislation. I know that those concerned with people with learning difficulties believe that whatever is provided should be "sufficient" and it certainly should be "appropriate" to the particular needs of the individual. Therefore, the words "sufficient and appropriate" would be more specific, understandable and reassuring for those who are concerned about meeting the relevant needs of people with learning difficulties.

Lord Pearson of Rannoch

Perhaps I may refer the noble Baroness to our debate on Tuesday 8th February at cols. 578 and 581, when I queried whether the provision provided by social services would remain adequate for mentally handicapped young people to complement the education supported by the new LSC. Understandably, the Minister said she could not speak from the Dispatch Box for social services, but she said that the Government were doing their best to improve social services in this area. I am sure that we all accept that and are very grateful for it.

Even if the noble Baroness cannot make commitments for other departments, which I am sure we all accept, the collaboration between government departments is something I would like to pursue in this area because education on its own, however excellent (certainly for all children with learning difficulties and especially for those with severe learning difficulties) cannot succeed unless social services, and indeed the Department of Health, is collaborating fully. I mention health because we must not forget that these children often have quite severe health problems as well.

I hope I may be pushing at an open door with the Government, because I am aware that for mentally handicapped adults—adults with learning difficulties—the Government are wisely encouraging more collaboration between health, social services and local authorities. I feel sure that the Government deserve congratulation on that initiative. Indeed, I have suggested to the Minister in another place that for mentally handicapped adults the Home Office should also be invited to join the loop because a disturbingly high proportion of the prison population is now mentally disordered—I believe the figure given is some 40 per cent. A growing number of those people may have learning disabilities.

Better collaboration between health and social services in areas indicated by the Home Office might prevent some of these people going to prison, which is obviously damaging for them—they are already unfortunate—and it is also, of course, very expensive. One fears that some prisoners will be in the age group covered by this clause—up to age 25.

And so, for the young people concerned it seems to me that we cannot provide even "adequate" education, let alone "sufficient and appropriate" education or training, as proposed by my noble friend's amendment, unless there is full collaboration between the noble Baroness's department, social services and health. I submit, for what it is worth, that it might also be worth consulting the Home Office for the reason I have given.

Finally, I think it would be worth having a representative of the Treasury present in this proposed inter-governmental collaboration because I am sure that the Government want to look at education which is effective, care-effective and cost-effective. I support the amendment.

Baroness Blackstone

In addressing the amendments in this group I shall first speak to Amendment No. 80 and to Amendment No. 169, the parallel amendment for Wales.

Clause 12(1) and subsection Clause 39(1) empower the LSC and the CETW to carry out research relevant to any of their functions. Clearly, those functions include provision for all learners, including people with learning difficulties and disabilities. Identifying and meeting the learning needs of those groups will be part of the core business of the councils.

The LSC and the CETW will certainly therefore have all the powers that they require to carry out research into the needs of specific groups of learners, including those with disabilities and learning difficulties, and into how the learning process is and should be serving them best.

The FEFCs, working with organisations such as FEDA, have a good track record of research in this area and I certainly expect the LSC to maintain that level of priority. Indeed, further research is an important part of the consideration of plans for our future provision for disabled people which the LSC will be under a statutory duty to compile.

While research into the needs of such key groups will be an important part of the work of the LSC and the CETW, I see no need to give them statutory duties to that effect. Therefore, with the assurances that I have given, I hope that the noble Lord will feel able to withdraw the amendments.

With regard to Amendment No. 92, the Further and Higher Education Act 1992 recognised the importance of specialist provision and boarding accommodation as part of the learning opportunities available for people with learning difficulties. We have continued that approach and the good practice that currently exists in this Bill.

Our intention is that in discharging its duties in Clause 2 and 3, the LSC must give consideration to whether or not it can provide an adequate standard of education for a person with learning difficulties. Where it cannot, it must consider provision of boarding accommodation if a person is under 25, and may do so where a person is over 25. That is what Clause 13 means. Our use of the term "adequate" has a meaning similar to that at Clause 2(2)(b)—page 2 at line 8 where it alludes to the "quality" of provision adequate to meet the needs of a young person, and reflects the priority that we have given to meeting young peoples' needs.

It is not necessary to amend the clause by inserting the word "appropriate" because, in effect, it is already there. The council's duties at Clauses 2 and 3 stipulate that its provision must be, suitable to the requirements of persons". In short, it must be "appropriate" in the sense that the noble Baroness intends.

Turning to what the noble Lord, Lord Pearson of Rannoch, said, I entirely accept that in this area there is a need for collaboration across departments, just as there is a need for collaboration across departments in the setting up of the ConneXion service, where young people in various kinds of difficulties may require the services not just of my department but also of the Department of Health, which, of course, is responsible for social services, and in some cases the Home Office, where the young person has got into trouble with the law. As for the Treasury, that department always makes its presence known in departmental discussions of this kind. I take the point that the noble Lord makes. We are trying to have more effective joined-up government thinking in this and other areas.

Lord Addington

I thank the Minister for that reply. If I heard her correctly, I believe her reply was that the Government intend to do that anyway so there is no need for a specific duty to be placed on the face of the Bill. That is roughly what I understood her to say. However, we must bear in mind that so far we have never had enough information to allow people to find the right kind of help or the right processes are not available to them. That point lies behind the amendment. I do not know whether we shall ever achieve that. We can certainly do better and we can stop wasting time.

I said that this is a "may" or "shall" argument, although I do not believe that we should delay the Committee on this matter. However, I give notice that I shall return to the issue, on this Bill and others, because unless we get it clear and unless we know where to start looking people will continue to chase around and miss years in their education because they cannot find out what is going on.

I thank the Minister for her description of "adequate", which makes one consider the bear minimum as opposed to what is right. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Baroness Blatch moved Amendment No. 81: Page 6, line 26, leave out ("is") and insert ("are").

The noble Baroness said: I travel hopefully on this amendment because it is purely a change to the grammar. I am sure there are no politics whatever in it because I had a jolly good look. I feel the provision should say "systems are" rather than "systems is" and I hope we will not be going through the Division Lobbies on this amendment.

Amendments Nos. 82 to 85 are grouped with Amendment No. 81 and I shall speak to them also. The noble Lord, Lord. Haskel, will speak to Amendment No. 86 and the Welsh Amendment No. 170.

My amendments relate to the same theme as that of the noble Lord, Lord Haskel; that is, to put into the public arena information in relation to the further education and post-16 sectors. Amendment No. 82 seeks to provide that, where the Secretary of State commissions work from the council, he will publish any such request in the interests of open government. Amendment No. 83 requests the council to, publish annually information about the number of students in each age cohort obtaining any qualification approved under section 87".

Amendment No. 84 asks again for annual information, about the number of students in each age cohort working towards any qualification approved under section 87".

Amendment No. 85 suggests that the council should publish each year, information about the number and percentage of people in each age cohort achieving each level of qualification approved under section 87, making due allowance for individuals achieving more than one approved qualification".

We have gone a long way to produce this kind of information from the school sector. The amendments would do a service to the further education sector because in terms of its achievement it is an unsung part of the education service. It is a continuing bank of information which would be enormously useful, not only to show what our colleges are achieving, but also to help the Government and local communities using the colleges quantify the way in which the aims and objectives of the colleges are being achieved. I beg to move.

Lord Haskel

I shall speak to Amendments Nos. 86 and 170. My reasons for tabling these amendments are close to the reasons stated by the noble Baroness, Lady Blatch. But this is not the time or place to make a long speech about the benefits of openness and freedom of information.

The purpose of my amendment is to ask the Government to continue collecting the data which is at present collected by the Further Education Funding Council. It collects data, including staffing information on FE colleges and other information, which is not published regularly but which is valuable both to unions and local authorities. My amendments ask the Government to ensure that that information continues to be collected and is published regularly. It is the regular publication of the data which is helpful to those trying to plan staffing and other aspects of FE education.

Lord Tope

First, I congratulate the noble Baroness, Lady Blatch, on Amendment No. 81. I see the Minister shaking his head. I have no doubt the previous government got it wrong as well. I pledge the noble Baroness our support at least if she feels the need to divide the Committee on this important issue. It may be that this will be the most significant victory that she scores in these Committee proceedings.

I support the intention behind the other amendments, which is to obtain from the Government what I hope we are about to hear; namely, an assurance that this information will continue to he collected and published. Whether or not it belongs on the face of the Bill I have some doubts, but I welcome an assurance from the Minister that, if it is thought appropriate, the council will be asked to provide and publish this information, in guidance or whatever.

Lord Lucas

I rise to support my noble friend. A freedom of information Bill is coming to this House in due course and one of its great effects, should it become law, will be to open up this closed box of information that is kept by the likes of Ofsted and the FEFC. It is important information on how schools are run and managed, to which access to the public: and researchers is far too restricted. Outside researchers hardly ever have access to that information and analyses of how schools do and what kind of education works well. That access tends to be restricted to authorities' researchers alone. The freedom of information Bill will open that up and make this sort of information much more widely available on much better terms.

I hope the Government will recognise that the freedom of information Act is coming and adjust the terms of this Bill to accommodate the kind of openness that will be the ruling feature of the Act. It is important that information is collected—information cannot be made available if it is not collected. It must be clear that the right information is collected, that there are duties on the council to collect information that will be useful to people on a wide scale and not just to the limited clientele described in the Bill. I hope the Government will see their way to supporting my noble friend's amendments.

In relation to Amendment No. 81, the noble Lord, Lord Bach, appears to wish to dispute it. If he does he will misunderstand the nature of "information''. We cannot design information. Information is something that is collected. We can design systems for collecting it; but we cannot design it. If we design information all we get is lies.

Lord Bach

I should like to take in turn Amendments Nos. 81, 82 to 85 and then 86 and 170, all of which relate in different ways to the provision of information.

I start by saying that I agree with the noble Baroness, Lady Blatch, that Amendment No. 81 does not concern any political issue. I am impressed by how closely the noble Baroness scrutinised the Bill. But that is as far as I can go. I cannot accept the amendment, which is based on a belief that there is a grammatical inaccuracy in the Bill as it now stands.

I do not want to spend too much time on this; there are other matters with which we must deal. The effect of the amendment, and indeed what the noble Baroness means by it, is that it is the systems which the councils set up which could, in and of themselves, secure that the funding and other decisions are made on a sound basis. The Government argue that it is the information—for example, on learner and labour market needs—which will do the securing and not the mechanics and structures of the systems which will hold and process the information. So it is "information is" rather than "information are". I am afraid therefore that we reject the amendment and ask her to withdraw it.

Lord Tope

Perhaps I may intervene at this stage and thank the Minister for his explanation. I read the wording with different breaks in it and feel that I must now withdraw my unqualified support for the noble Baroness that I gave earlier.

Lord Bach

This must be the first time, certainly in my experience, that I have ever persuaded any Member of the Committee of the strength of my argument. It gives me encouragement for the future.

I turn to Amendment No. 82. The intention is to amend line 21 and Clause 21(2), which deals with requests from the Secretary of State, and not Clause 21(4), which links to line 27. I only say this for the sake of clarity and not to be clever, but I believe the amendment should read "Page 6, line 21" and not "line 27". I give way of course if I am wrong.

Baroness Blatch

On a quick reading, I still think that I am right. I am less interested in where it goes than in whether the Minister thinks the point is good, and that information should be in the public arena.

Lord Bach

Let us move straight to that aspect. It is neither surprising nor exceptional that the Bill contains a requirement of the LSC to respond to requests from the Secretary of State for information or advice on matters relating to its functions. Such a prevision—like its precedent in the 1992 Act—helps lay the foundation for good governance and a good working relationship between a Secretary of State and a non-departmental public body.

As to confidentiality, I had the pleasure of serving with the normal Lord, Lord Lucas, on the Select Committee that considered the draft Freedom of Information Bill. The revised Bill is still in another place. No doubt we will spend many hours, if not days, examining that Bill in due course.

Lord McNally


Lord Bach

I see another member of the Select Committee in his place, when he was not a few minutes ago.

Lord McNally

But it will still be weeks.

Lord Bach

I question whether a requirement to publish would not cut across good practice in relation to confidentiality. I believe that everyone, including those in your Lordships' House, is committed to the principle of open government, but due regard must be paid to ensuring the privacy of personal and commercially important policy information.

The publication of requests for information or advice, which might relate to the circumstances of individuals or future expenditure plans, may not always be appropriate or constructive. On that basis and with the law as I stands, I hope that the noble Baroness, Lady Blatch, will not press Amendment No. 82.

Amendments Nos. 83 and 85 would require the LSC to obtain information about all external qualifications, whether they are pursued in the secondary or further education sectors—including those delivered by private providers. Approvals will be made for qualifications under Clause 87 for the purposes of public funding by the LSC or LEAs, but approved qualifications may also be provided without any recourse to public funds. The amendments appear not to distinguish between qualifications that are publicly funded and those which are not. The LSC would have to supply information about the uptake and achievement of approved qualifications regardless of who funds them.

The amendments would impose a disproportionate additional burden on learning providers in both the public and private sectors. The information required would probably exceed the use to which it would be put—and far more than the LSC requires to meet management or financial information needs. It might replicate information that providers already supply to meet other requirements. Schools provide information about provision and achievement for various purposes under the Education Act 1996. The governing bodies of FE sector institutions will continue to be required to publish information on provision and achievement under the Further and Higher Education Act 1992.

We want to ensure that information on achievement will be published. The current secondary and 16 to 18 performance tables and measures to monitor progress against national learning targets for young people and adults already provide the appropriately focused information that we all require, so we cannot accept the noble Baroness's three amendments.

As to Amendment No. 86 and—the Welsh connection—Amendment No. 170, I am conscious that there are Welsh experts seated in all parts of the Committee. Providing high-quality learning requires people with the necessary skills. In the prospectus we said that all providers will need to demonstrate to the local LSC that their employees have appropriate nationally recognised qualifications or at least have plans to acquire them. The LSC will base its requirements on work by the employment and further national training organisations—NTOs. That is the right approach to developing high-quality standards and recognises the independence of providers, whether they are FE colleges or private or voluntary sector training providers. The proper approach for the LSC as the purchaser is to set the standards its providers should meet, then support them in a process of continuous improvement using the best-quality management systems.

The amendments would make that a bureaucratic process, with costly and time-consuming data collection. It may be necessary from time to time—I hope this gives my noble friend some comfort—for the LSC to undertake surveys on matters such as staff qualifications, as does the FEFC with its annual survey of FE sector colleges. It would not be right to impose that practice by statute. The remuneration of staff employed by providers is a matter for employers rather than the LSC. I have to disappoint noble Lords, saying that I cannot accept the amendments.

6.15 p.m.

Lord Dearing

I presume to intervene on this greater matter of the "is" and have considerable sympathy for the noble Baroness, Lady Blatch, in the way that she has been misled by the construction of the sentence. I have never heard of information that is designed. Information is information. Surely the provision is stating, in simple English, that the council must establish systems to collect the information needed to provide a sound basis for its decisions. The draftsman has been less than lucid in expressing his intentions.

Lord Pearson of Rannoch

I support the noble Lord, Lord Dearing, because it is not just a grammatical point. Information cannot secure a decision, whether by design or otherwise. It will not be information that produces a sound decision but the council—based on the information that its systems should have provided. Even then the clause is not right; even systems cannot make sound decisions. I suggest that the Minister and his advisers have another look.

Baroness Blatch

What is in a word? It is a clumsy sentence. Whether or not "is" and "are" present a problem, I implore the Government to take another look. However one reads the sentence, it does not make sense. It would be better for it, to make sense, especially as other practitioners will have to use the legislation as a working manual for delivering what the Government want.

The Minister was concerned about the split between publicly-funded a rid privately-funded education and training. Therefore, before I decide what to do about these amendments, I have a question for the noble Lord. If I bring forward amendments that refer to "publicly funded" education, will that make a difference to the Government's response?

Lord Bach

I can tell the noble Baroness that if she did so we would certainly look at them carefully before deciding what our attitude would be. I do not think that she can expect more than that today.

Baroness Blatch

I am grateful for that helpful indication and I shall certainly look at them again. However, I return to the school sector. Independent schools do provide information, although one cannot compel them to do so. That information is valuable and dovetails in with the information that comes from all the state and publicly-funded schools. It seems to me that it could be a feature of the 16-plus education.

I take most seriously the Minister's point about the burden on providers, especially when they are very small and medium-sized businesses. I should like to reconsider the wording of these amendments, and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 82 to 86 not moved.]

Baroness Blackstone moved Amendment No. 87: Page 6, line 29, leave out ("or advice") and insert (", advice or guidance").

On Question, amendment agreed to.

[Amendments Nos. 88 and 89 not moved.]

Baroness Blackstone moved Amendment No. 90: Page 6, line 29, at end insert ("(including employment)").

On Question, amendment agreed to.

Clause 12, as amended, agreed to.

Clause 13 [Persons with learning difficulties]:

[Amendments Nos. 91 and 92 not moved.]

Clause 13 agreed to.

Lord Addington moved Amendment No. 93: After Clause 13, insert the following new clause—