Education Bill

HL Deb 26 June 2002 vol 636 cc1433-98

8.36 p.m.

Further consideration of amendments on Report resumed.

Clause 83 [Establishment of the National Curriculum for England by order]:

Baroness Walmsley

moved Amendment No. 120: Page 56, line 18, leave out subsection (12). The noble Baroness said: My Lords, in moving Amendment No. 120, I shall also speak to Amendment No. 121.

I have tabled the same amendments as we debated in Committee because I received a quite encouraging response from the Minister when I pointed out the sheer illogicality in this day and age of neglecting to teach in the science curriculum about one of the most serious threats to the health of the whole of mankind—HIV/AIDS—and about other sexually transmitted diseases. So I am hopeful of success if I pursue this matter.

I also pointed out that it is important to teach young people in a way that is relevant to their lives and what is happening around them, and that reference to the science of HIV/AIDS is a very relevant way of teaching about the importance of the immune system and what happens when it breaks down. The subsections removed by my amendments make it illegal to teach about AIDS and other sexually transmitted diseases and aspects of human sexual behaviour, other than the biological aspects, in science lessons in schools in England and Wales. That is what I want to change. I think that it should be perfectly legal to include these subjects in the science curriculum for children of an appropriate age; indeed, it is essential.

The noble Baroness, Lady Blatch, pointed out that Clauses 83 and 104, in which these subsections appear, merely re-enact part of a previous statute without changing it at all. She rightly asked the Minister why this should be done when the only valid reason for reenacting part of a previous statute is to change it.

Since we debated these amendments a few weeks ago, we have had a Question in your Lordships' House about the health of children in which I drew the attention of the noble Lord, Lord Hunt of Kings Heath, to the fact that the number of new diagnoses of HIV/AIDS in this country doubled during the last five-year period for which I could find statistics. A high percentage of these victims are young people, very many of whom are heterosexual. Some are even babies who were born with the disease, having contracted it from their mothers in the womb.

AIDS is one of the greatest scourges of our age. We are letting down our children if we do not teach them about the science behind it, including how it is transmitted and how devastating it is to the normal functioning of the human immune system. I also pointed out to the noble Lord that the incidence of gonorrhoea among teenagers doubled within the same period and that the incidence of chlamydia among teenage girls doubled in one year alone, between 1999 and 2000. There is clearly a great need for more and better teaching about these issues, and, crucially, children need to understand the science behind them. When they understand that, they will see the logic behind the lifestyle advice on safe sexual practices which they receive in sex education lessons in other parts of the curriculum. It is a matter of joined-up education.

Ofsted has already identified the problems caused by this ridiculous law. Its report Sex and Relationships stated: Education about HIV/AIDS is receiving less attention than in the past, despite the fact that it remains a significant health problem". It continued: In secondary schools, the teaching at Key Stage 4 was better than at Key Stage 3. At both key stages teaching about sexual health, including sexually transmitted infections, and the law in relation to sex, was poor in one in five lessons". One of the reasons for this may be confusion among teachers about what they can and cannot legally do in relation to HIV/AIDS and a lack of confidence in tackling a difficult but vitally important subject.

I hope that the Minister will be able to respond positively to these amendments and change education law on this matter so that our children can be given the protection of good information. I beg to move.

Baroness Massey of Darwen

My Lords, I support the amendment. I tabled the Question on young people's health to which the noble Baroness. Lady Walmsley, referred. It is an important issue. A key point is that personal, social and health education is not a statutory part of the curriculum. Therefore, there must be a statutory provision to teach aspects of sexual behaviour and sexual health to improve young people's sexual health and well-being. I sincerely hope that the Minister will be sympathetic to the amendment.

Baroness Blatch

My Lords, it may come as a surprise to noble Lords to hear that I am sympathetic to the argument advanced by the noble Baroness, Lady Walmsley. It seems to me that science lessons constitute the right forum in which to teach the science of HIV/AIDS, sexually transmitted diseases and sexual activity. However, there is a practical difficulty in that some parents withdraw their children from sex education lessons—they have the legal right to do so—but it is not beyond the wit of schools to ensure that parents know where that subject will be inserted in the curriculum. In fact, they have an obligation to tell parents how that subject will be taught and what modules of the curriculum will include it to enable parents to exercise their legal right in that regard.

However, I ask again: what is the purpose of subsection (12)? Unless my memory serves me badly—I am prepared to believe that that might be the case—my understanding was that the science curriculum could include some of the science aspects of some of the matters that are listed in subsection (12) of Clause 83. It would be helpful to know precisely the purpose of subsection (12). As I say, I am sympathetic to the argument advanced by the noble Baroness, Lady Walmsley.

Baroness David

My Lords, can the Minister tell us who included the provision in a previous Act? It would be interesting to know that. I thought that parents could withdraw their children from sex education but not from science. I may be ignorant on the matter but I hope that the Minister can put me right.

Lord Lucas

My Lords, I very much support the amendment, certainly as regards deleting paragraph (a) of subsection (12) which concerns a most interesting aspect of the immune system. All kids know about AIDS in one way or another. It is a fascinating hit of science as to why AIDS is such a difficult disease to attack—it affects the immune system from the inside—and that adds greatly to people's understanding of the dangers posed by the disease. It is a matter of science. I do not see why we should seek to exclude a useful bit of scientific knowledge on the ground that it might in some way verge on the PSHE curriculum from which we want people to have a right to withdraw.

I do not agree that we ought to use the science curriculum to teach pupils about sexual health. That is not what the science curriculum is intended for. But we should not have to blank out bits of science because they happen to have relevance to a subject from which we give parents the right to withdraw their children. I do not see that paragraph (b) of subsection (12) is ever likely to be included in any science curriculum short of degree level. I have not seen anything that touches on it in any science curriculum that I have ever seen. I do not suppose that something that deals with such rare and ordinary diseases is likely to come reasonably into a broad and general science curriculum at the compulsory age levels.

Paragraph (c) of subsection (12) refers to a matter that is often seen in nature programmes on television. It is a pity that one is not allowed to draw parallels between what children are exposed to routinely on television and what goes on between people in that regard. I refer to a most interesting aspect of ourselves as living creatures. One should be able to draw parallels between our behaviour and that of animals. I certainly do not see the reason for ruling that matter out of the science curriculum.

8.45 p.m.

Baroness Ashton of Upholland

My Lords, to differentiate between the curriculum in England and that in Wales one has to move chunks—forgive the vernacular—of legislation and tidy them up. One does not extract little bits and pieces. I hope that that technical explanation will suffice.

I have consulted on the matter as a result of the question that the noble Baroness, Lady Blatch, asked in Committee. I say to the noble Baroness, Lady David, that I understand that the noble Baroness, Lady Blatch, included the measure we are discussing in previous legislation.

In Committee I agreed to take the matter away and reflect on the debate. I believe I made clear that it is not a question of what can lawfully be taught in the classroom. The subsection we are discussing does not prohibit teachers from teaching the topics that are listed but it prohibits them from being included in the programmes of study for science. By removing the subsection we could, if we wished to, amend the programmes of study for science to make the teaching of those topics compulsory. However, we do not have plans to do that.

I have reflected on the points made in Committee. I agree with what has been said on all sides of the House. I concluded that the noble Baroness, Lady Walmsley, is right; the relevant subsections are unnecessary. Accordingly, the Government accept the amendments as drafted.

Baroness Walmsley

My Lords, all I can say to the Minister is, "Thank you very much". There are not many amendments to the Bill which, if accepted, would save lives, but this is one of them. I thank the Minister warmly.

On Question, amendment agreed to.

Clause 104 [Establishment of the National Curriculum for Wales by order]:

Baroness Walmsley

moved Amendment No. 121: Page 68, line 28, leave out subsection (12). On Question, amendment agreed to.

Clause 116 [Review Body: function]:

Baroness Walmsley

moved Amendment No. 121ZA: Page 73, line 26, at end insert— ( ) In discharging its functions under this section the Review Body shall have regard to the need to ensure that—

1. (a) the conditions of employment of school teachers which relate to their working time are such that they may have a reasonable amount of time during each school day, or by such other allocation of time as may be appropriate, for the purposes of discharging professional duties other than those of teaching pupils;
2. (b) the conditions of employment of school teachers which relate to their working time are such that they may have an amount of time during each school year for the purposes of their own professional development without unreasonably increasing their overall workload;
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3. (c) the conditions of employment of school teachers which relate to their professional duties are consistent with regulations made under section 129(1) and are such as may be appropriate to secure a balanced working relationship between persons employed as school teachers and others employed to work at each school; and
4. (d) teachers employed on a day to day or other short notice basis may he remunerated in such manner as may be appropriate to encourage them to take opportunities available to them for their own professional development and further training."

The noble Baroness said: My Lords, this amendment is very similar to one we moved in Committee. It gives us a chance to probe the Government's intentions a little further on the need for non-contact time and time for professional development for both full-time and part-time teachers. The amendment also seeks to ensure that teachers have suitable conditions to work effectively with the growing band of other staff, such as classroom assistants, who now work in our schools.

In Committee the Minister expressed considerable sympathy with the issues raised in the Official Report of 28th May at column 1208. But she said in column 1209 that, To impose the requirements in this amendment would greatly fetter the discretion of the STRB to consider current facts and prevailing circumstances and to make recommendations independently". However, she also made the welcome statement that, the STRB's statutory recommendations are as a matter of principle accepted by Government unless there are overriding reasons not to do so. That was the commitment from the start".— [Official Report, 28/5/02; col. 1209.] I should like to take this opportunity to ask the Minister what is meant by, overriding reasons not to do so"? Could it be cost or lack of sufficient staff to cover the non-contact time, or what? Can the Minister tell us how the remodelling working party is getting on with its work and about the Government's progress on the workload review? Will the Minister say whether the Government intend to support schools in the provision of non-contact and professional development time, and will extra funds become available? As there is nothing else in the Bill to address the recruitment and retention crisis in our schools, we see the amendment as a means of probing the Government's plans on one of the most pressing problems facing our schools today.

The Government seem to be relying to a great extent on what might come out of the Comprehensive Spending Review but, although that is important, schools are losing staff now. Placing some reassurance on the record that the Government will provide the cash needed to support the hoped for recommendations would be very welcome.

The whole issue of learning support staff and classroom assistants is one that the Government have still not fully grasped. Paragraph (c) of the amendment refers to that. Although primary school teachers may have 15 minutes of non-contact time in the day, many schools employ classroom assistants for hours that exactly match the teaching sessions. That means either that the teacher has no time for the very necessary liaison work with support staff, which makes for a well-ordered and productive working partnership in the classroom, or that that has to be done on a voluntary basis in the teaching assistant's own time. Many of those workers are very low paid indeed and it is unreasonable to expect them to give of their own time to do something that is absolutely vital if the job is to be done properly. Teachers need the time and the training to be able to manage such support staff properly, especially because some newly qualified teachers have never managed another member of staff before in their lives.

While we are on the subject, can the Minister say something about the way in which the Government plan to encourage schools and LEAs to reward newly trained classroom assistants properly and whether they intend to put in place a proper employment structure and a coherent training and development programme with appropriate remuneration at each stage?

The Minister will be aware that we on these Benches are very keen on the "Grow your Own" route into qualified teacher status as an additional route to the usual degree and PGCE or MEd qualification. The growth of the classroom assistant workforce gives a great opportunity to train more teachers—mature people who are very familiar with what life is really like in a classroom and therefore much less likely to get a shock and to leave the profession after a year or two. Can the Minister tell the House how she plans to use this opportunity to address the recruitment shortfall in schools? I beg to move.

Baroness Ashton of Upholland

My Lords, the issues raised in Amendment No. 121ZA are important, as the noble Baroness, Lady Walmsley, said, and they have given rise to some important questions. I have a great deal of sympathy with the points that she raised and I am glad to have this opportunity to respond.

I am well aware of the importance of securing professional time for all teachers for preparation, planning, marking and related matters, and of the need to reduce the time teachers spend on administrative tasks. Those are important and, at this point in the history of education, highly relevant aspirations. Timetabling arrangements generally provide most teachers in secondary schools with some free periods, although we also appreciate that the school day is not simply taken up with teaching; teachers are involved in many other matters. I know from my own experience of being a chair of governors that in primary schools the position can be much more difficult. This is an important issue.

It is for precisely that reason that my right honourable friend the Secretary of State drew this matter specifically to the attention of the review body, when she asked it to consider the PricewaterhouseCoopers report on teacher workload and to make its own recommendations on that. The remit letter that she gave the review body drew specific attention to the possibility of moving towards a guarantee of professional time for teachers and managers; of more support staff and better use of ICT—new technology—to free teachers for their core professional role; and of considering changes to contracts to assist with embedding the role of continuing professional development. It is a key concern to all of us for many reasons that teachers have sufficient time to carry out professional duties properly and to undertake continuing professional development, both of which lead to higher standards of teaching and learning.

As noble Lords will be aware, the STRB's workload report has been published and we are now in the middle of a constructive consultation—the working party is progressing well—on the helpful recommendations that were made, several of which deal precisely with the matters that are raised in the amendment.

The noble Baroness asked an interesting question about the phrase "overriding reasons". She will be aware that one always has to be cautious of always saying that one accepts everything. For example, technical pay structure issues may be rejected. Inevitably, one has to look at the workability, as it were, of what is happening. There is also an issue of cost, which has tended to lead to staging. One cannot always say categorically that everything will always be available. The phrase "overriding reasons" is meant to imply that the matter will not be taken lightly; it does not involve simply deciding to reject. The Government's record in that regard is good.

I turn to the key reasons for resisting the amendment. We believe, in the first place, that it is inappropriate to seek to introduce into primary legislation a matter that is currently the subject of quite separate and important consultations. Consultations on the principles underlying the STRB's recommendations are continuing and there will be further consultation on detailed proposals in September, in the light of feedback on the STRB's report and the outcome of the spending review. The spending review is an important part of the way in which government work. It is the determination of what moneys are available. Within that, departments are clear about their priorities. In various speeches that my right honourable friend the Secretary of State has given during the past year, and in her approach to this issue, she has made it clear that supporting teachers is a crucial part of the matter.

These are sensitive issues. We want an outcome that is good for teachers, that is realistic and workable within the available resources and which at the same time supports improving standards. In this context, the amendment is a little restrictive. I appreciate the need for "early wins" but we are taking that very seriously in current discussions with interested parties and seek to ensure that we get it right.

My second reason for resisting the amendment is that the current pay machinery, whereby the STRB works in accordance with a public remit provided by the Secretary of State, strikes the right balance and works well. It makes no presumptions about the content of the teachers' contract. We believe that the amendment would introduce such presumptions. The STRB's duty is to make independent recommendations. As we have discussed, we have said as a matter of principle that those recommendations are accepted by the Government unless there are overriding reasons.

The Secretary of State can require the STRB to take certain matters into account when making its recommendations, as has been the case with the latest workload report. But the recommendations are the STRB's and government evidence is taken into account along with all other representations. It would be wrong to fetter the operation of the pay and conditions determination machinery. I know also that the teacher unions would not want to see contractual provisions in primary legislation.

The noble Baroness raised an important point about classroom assistants and the need to ensure that they have sufficient time. I shall take that important point away and write to the noble Baroness about it. I am sure that it is being well dealt with but I do not want to give half an answer when I could give a more efficient one. She rightly said that classroom assistants contribute to education. Some of them may find that that work provides them with an opportunity to become teachers in future. We shall seek to ensure that those opportunities and pathways are available to them.

We are grateful to the noble Baroness for allowing us to discuss this issue but we believe that the amendment would not be helpful in terms of the operation of the STRB. On that basis, I hope that the noble Baroness will withdraw it.

Baroness Walmsley

My Lords, I thank the Minister for her response. The NUT and other teaching unions will take some comfort from her words of clarification and encouragement from the Dispatch Box and from her comments on the interaction between qualified teachers and teaching assistants. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

Baroness Blatch

moved Amendment No. 121A: Page 80, line 31, at end insert— ( ) is under the direction or the direct supervision of a qualified teacher. The noble Baroness said: My Lords, Amendment No. 121A, and Amendment No. 121B, which is grouped with it, both relate to the subject of assistant teachers. The purpose of the amendments is to tease out from the Government the precise difference between those teachers and the present teaching assistants, and to discover precisely how they envisage they should be used in the classroom. There is a great deal of suspicion—I admit that I share it—that we are talking about a form of substitute teacher.

At the outset, I should inform noble Lords that I contacted staff in the Public Bill Office, who promised that they would make an alteration for me. The word "or" in Amendment No. 121A should be "and", so that the amendment reads, is under the direction and the direct supervision of a qualified teacher". I know that that will not be accepted on the Floor of the House as a manuscript change. I shall not be pressing the amendment this evening but, if I return with it at a later stage, it will come back in its amended form. Therefore, I reiterate that the wording should not read, "direction or the direct supervision"; it should read, "direction and the direct supervision".

Under whatever new ideas the Government may have for the use of teaching assistants, they may intend that they should be under the direction, and, indeed, under the direct supervision, of a fully qualified teacher—in other words, that they should not be left unsupervised to take whole classes on their own. The Government may not accept the wording of the amendment, but it seems to me that the easiest way to allay both my concerns and those of many teachers would he to accept that teaching assistants will be under the direction and under the direct supervision of a qualified teacher. If the Government are not prepared to accept that wording, I believe it is important that they set out the matter more clearly. Simply stating in Clause 129(1)(b) that such teachers must satisfy specified requirements without giving any indication as to what the parameters of those specified requirements will be is not acceptable. I beg to move.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble Baroness for clarifying the issue of "or" and "and". That makes more sense to me and I am perfectly happy to discuss the amendment on that basis.

The difficulty that I have in relation to Amendments Nos. 121A and 121B is that, in a sense, they fundamentally change the effect and purpose of Clause 129. I want to address the effect of the amendments but I shall speak slightly more broadly about the intentions behind them.

Through this clause we are trying to give schools greater scope and flexibility to utilise the full range of skills and abilities of their staff by setting a framework of supervision. That is in order to ensure that we allow certain unqualified staff to undertake work which we shall describe as "of a teaching nature" in support of their qualified colleagues. At the same time, the framework of supervision is there to safeguard the professional status of qualified teachers and to ensure that their primary responsibility for delivering education in schools is not undermined. In addition, the clause is drafted to provide for particular categories of unqualified teaching staff, such as overseas trained teachers and graduate and registered teachers. Perhaps I may concentrate for a moment on that latter point.

If we accepted the amendment, it would mean that specified teaching work could be undertaken by any person under the direction of a qualified teacher. Of course, legally all staff in schools, from the caretaker to the deputy head teacher, work under the management and direction of the head teacher. The senior manager is also required to be qualified. Therefore, if the amendments were accepted, any member of staff in a school could, in practice, undertake the teaching work specified in the regulations. I know that that is not the intention behind the noble Baroness's amendment, but it is important to understand that that would be the effect.

Secondly, it would not be possible to make detailed provision for certain categories of unqualified teacher. The example that best illustrates that is the position of overseas trained teachers and graduates on employment-based routes to qualified teacher status. We intend that those unqualified teachers will be able to undertake teaching work in schools, as indeed they do at present, but only if they satisfy specified requirements. Those are identified in greater detail under subsection (4) of Clause 129 and will relate, for example, to their being on programmes or courses of training to obtain qualified teacher status or the possession of a suitable qualification.

In addition, subsection (5), which relies on the words that would be deleted by the amendments, provides that regulations may limit the period of time during which teaching work may be carried out by an unqualified teacher. Therefore, for example, a graduate on an employment-based teacher training route who did not qualify within the appropriate period would no longer be able to teach. And overseas trained teachers would, as now, be allowed to teach only for a limited time if they did not gain QTS. The amendments would take away our ability to ensure that the employment position of those staff remains as it is now. Obviously those are important safeguards to ensure that teaching work is carried out by suitable persons. We would not wish to see them lost if the amendments were accepted.

Perhaps I may focus for a moment on what I believe the noble Baroness is seeking. We know that we now have within our schools adults who work alongside teachers and who undertake different tasks. Schools themselves are unsure as to what is appropriate and inappropriate use of teaching assistants. Having talked to people within schools, it is clear that they are looking to us to give them the framework in which to operate. As I said in Committee—I shall repeat it—it is intended that that framework should achieve two things: first, it should ensure that our qualified teachers are responsible for teaching and learning; and, secondly, it should ensure that classroom and teaching assistants are used efficiently and effectively where they can add value when working under the supervision of qualified teachers. Therefore, the intention is for the framework to enable those two things to happen and to allow schools to have the flexibility and scope to use their staff more efficiently.

We have just revised the policy statement, which I am happy to send to the noble Baroness, Lady Blatch. I hope that it will help to allay her concerns on the matter. But I hope that I have also ensured that the House understands exactly what we are seeking to achieve through this clause. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Blatch

My Lords, I am grateful to the noble Baroness for that answer. I am still slightly mystified. A matter that puzzles me is that teaching assistants can now do almost anything in the classroom so long as they are under the supervision of a qualified teacher. They can help to teach reading; they can help small children with basic arithmetic; and they can do different kinds of tasks in a secondary school. They can do almost anything that the noble Baroness has mentioned thus far in all our debates and even as mentioned in the policy statement, which I now know has been overtaken and superseded by one which is more up-to-date.

I am puzzled as to why the new type of teaching assistant is being created. I am told that there will not be two types; they will all become the new kind of teaching assistant referred to in Clause 129.

Another concern is the wording of Clause 129. Teaching assistants are not mentioned. The wording is obscure. Clause 129 states: Regulations may provide that specified work may not be carried out by a person in a school unless he— (a) is a qualified teacher". It does not state "teaching work", but "specified work" and we do not know what that will be. We do not know to what "satisfy specified requirements" refers. Subsection (2) states: Regulations specifying work for the purpose of this section may make provision by reference to—

1. (a) one or more specified activities, or
2. (b) the circumstances in which activities are carried out".

The wording is obscure. Anyone could be forgiven for wondering what Clause 129 means. There is a great deal of suspicion and anxiety about the precise meaning of the clause and what it does for the status of a qualified teacher in the classroom.

Throughout the Bill, with my amendments I have been striving for an honest description of what the Government aim to do. We do not want to find somewhere down the line that we are getting teachers on the cheap. That is the concern among teachers.

The wise use of a teaching assistant can extend disproportionately the amount of work achieved by a teacher in the classroom. I am not convinced that teachers do not know how to exploit the talents of assistant teachers. I have been to many schools and have seen how incredibly effectively teachers will use a teaching assistant. Teaching assistants gather much experience over the years. I have always believed that there should be a proper system of validating some of the qualifications they gather on the way.

There is a pertinent point to be made as regards special schools. I have been in special schools where assistant teachers have gathered much experience over the years of working in the classroom with children with special needs, certainly more than the newly-qualified teachers coming in straight from college. It seems to me that, first, they are paid badly and always have been, and, secondly, there is a case for validating their qualifications and ensuring that they are properly recognised.

I do not deny that there is a proper role and the scope for that to be used as a stepping stone into teaching, as was mentioned by the Minister. I shall withdraw the amendment and await the new policy paper. However, it would be helpful to know that we shall not find ourselves by stealth with teaching assistants who at the end of the day turn out to be substitute, unqualified teachers.

Amendment, by leave, withdrawn.

[Amendment No. 121B not moved.]

Clause 132 [Provision of education]:

Baroness Sharp of Guildford

moved Amendment No. 121BA: Page 82, line 12, at end insert— ( ) Regulations made under subsection (1)—

1. (a) shall not prohibit the provision of education by a person employed full-time who does not have a specified qualification for two years after taking up a first appointment in a further education institution, provided that person embarks on a course leading to such a qualification within that period;
2. (b) shall not prohibit the provision of education by a person employed part-time who does not have a specified qualification for four years after taking up a first appointment in further education, provided that person has embarked upon a course of study leading to such a qualification within that period; and
3. (c) may make different provisions as to the specified qualifications and other matters for those engaged in the provision of education on a part-time basis from those engaged full-time.

( ) In determining the qualifications to be specified under subsection (1), the Secretary of State shall have regard to the extent to which the qualifications match the standards laid down by any body recognised by her as being responsible for determining the competencies required for persons providing further education. The noble Baroness said: My Lords, we discussed this amendment in Committee. It relates to the training of further education staff. In Committee we agreed that many of the staff come from unconventional backgrounds and that the training requirements laid down in the Bill are not necessarily appropriate to them. In particular, there was concern about the arrangements agreed under the Further Education National Training Organisation (FENTO) standards and the procedures which met those standards which had been agreed with the noble Baroness, Lady Blackstone, at an earlier stage. We sought clarification as to whether or not those agreements still applied.

The Minister was extremely helpful in his reply, for which we are grateful. However, the Association of Colleges, on whose behalf we tabled the amendment, was a little unhappy. The Minister's explanation repeated the position already reached in public discussion. The association believed that there was still a problem because he did not explain how, technically, the Government intend to frame regulations to give effect to that policy. It would appear to allow only regulations which prohibit the undertaking of teaching by persons who are not qualified. That formulation would preclude the drafting of regulations which would allow teaching by unqualified persons in certain circumstances. I refer, for example, to persons in the first two years of full-time employment who are pursuing a recognised qualification.

Some explanation of the scope of the regulations and how they fit in within the powers granted within this clause would be helpful. I tabled the amendment to seek further explanation on those issues and wonder whether the Minister can help. I beg to move.

9.15 p.m.

Lord Davies of Oldham

My Lords, I am grateful for the opportunity provided by the amendment moved by the noble Baroness, Lady Sharp, to clarify what I hoped I had established in Committee, but I recognise the points she has made. I shall do my best to have a better shot at it this time around.

The timescales currently set out in regulations were established on advice from FENTO, the standards setting body for further education. For a full-time teacher the qualification must be obtained within two years of a place becoming available; for a part-time teacher the qualification must be obtained within four years of a place becoming available. Those timescales obviously ease the burden on part-time staff, particularly those who have other current employment, and provides sufficient flexibility to acquire the qualification in service and in stages, as appropriate to their role. It is our intention to continue that policy in the new regulations.

It is reasonable for a student to expect those who teach in further education to be qualified, both in their own subject and in teaching practice. If not, it is reasonable to expect that they should become qualified at the earliest opportunity. Of course we provide support from the Standards Fund, through the Learning and Skills Council, to cover both the costs of teacher training and the staff cover costs so that new staff can he released from teaching duties in order to gain the qualification.

As I mentioned in Committee, we recognise that there is heavy pressure on teachers in their first year of teaching. We maintain that the support given to the staff in the way that I have just outlined, together with good management practice, eases the burden of actual teaching in the college. It should ensure that the lecturer can achieve the teaching qualification without too great a burden being placed upon him. So we look to the colleges—as they have always argued that they are in favour of qualified staff—therefore to assist in the development of the policy.

I can confirm that it is our intention that the existing regulations relating to the qualifications for teachers in FE colleges will continue in force, subject to minor modification for clarification purposes. We do not at this stage plan changes to the timescales, which differentiate between full and part-time staff, as I have indicated. Our intention is to re-enact provisions in Section 218 of the Education Reform Act 1988, as part of the rationalisation of that section. As I sought to make clear in the debate on the amendment in Committee, if we are to ensure high standards of provision in FE, it is crucial that these powers are retained.

Whether a member of staff is employed full-time or part-time should make no difference to the standard of teaching received by the learner. I hope that the noble Baroness, Lady Sharp, will feel reassured by that explanation.

In Committee the noble Baroness described the clause as "rather bleak". I looked at it and I agree with that description. It is expressed as a series of negatives and I understand the bleakness of it. The clause needs to be read with Clause 136(1), which effectively gives a power to make exemptions from the regulations, and a more general provision in Clause 204 where any regulations can make provision generally or only in specified cases. The regulations do not apply to anyone who was a teacher at a further education college or at a maintained school before 1st September 2001. There is also an exemption for a, person whose primary occupation or profession is not teaching and who is employed by the college on a temporary or occasional basis to provide updating on current industrial, commercial or professional practice". I am sure that the noble Baroness recognises that one of the great strengths of the FE system is its ability to call in expertise from people practising in commerce and in business. They are not teachers. It would be unreasonable to expect them to obtain teaching qualifications. But they are able to give the latest insight into the practice in the world which they occupy and bring that into the educational framework. We greatly value that. It is that category of person that we would ensure will continue to be exempt from these provisions. We have no plans to change that exemption although we may make minor changes to the wording in the light of experience.

If we produced changes to regulations we would feel obliged to discuss them with FENTO, with the employers and with the trades unions because we recognise the great sensitivity and interest in the matter. All interests would be considered. On that basis, I hope that the noble Baroness is reassured more fully than she was in Committee. I hope that she will feel able to withdraw the amendment.

Baroness Sharp of Guildford

My Lords, I am grateful to the Minister. That was a most helpful reply. I felt that we had an adequate reply in Committee. However, the Association of Colleges still had these queries. It is extremely helpful that the Minister has set the matter out at such great length. I think that the association will be delighted with the reply. I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 138 [Prohibition from teaching, etc.]:

Lord Lucas

moved Amendment No. 121C: Page 85, line 37, at end insert— ( ) Where a person is a parent of a child at a school, and the work in question under subsection (2) or (3) is provided voluntarily and without payment to or on behalf of the school in question, the Secretary of State, in relation to England, or the National Assembly for Wales, in relation to Wales, shall issue guidance as to—

1. (a) the circumstances under which such a parent should be checked for his status under this section;
2. (b) the persons who shall be permitted to know that such a check has been requested;
3. (c) the steps that should be taken, if a parent fails such a check, in relation to informing teachers, pupils and their parents of this fact."

The noble Lord said: My Lords, the last word in the second line of the amendment as printed on the Marshalled List should read, "by". The amendment then makes a little more sense.

I ask the Minister for a reassurance that this part of the Act will not be brought into force until the systems that will be needed to operate it are running rather more perfectly than they are at present. I checked with one county council about the status of the checking that we now, quite rightly, perform. It started about three months ago, if I remember rightly. The council said that during those three months it had made 400 requests. It had so far received three replies—three okays—and all of them were also on the list provided by the authorities of applications of which they had no trace. So there seems to be a fair state of delay and chaos in the system at present. We should not pitch the enormous amount of applications that will come from schools into that system until we are sure that that system is working correctly.

We discussed the matter in Committee, and the Minister was kind enough to write to me afterwards, providing a good deal of explanation as to what was going on. It is clear from what was stated in the letter and what was said in Committee that parents who help out in schools will be caught by the clause, and specifically by subsection (3)(a), which states: brings a person regularly into contact with children". If we are to place such an obligation on schools, we must be a little more helpful to them.

If the school discovers that someone who has been working with children is on the register—specifically, on the sex offenders' register—and that that is why they fall under the clause, there will be a good deal of general uproar in the school community and questions will be asked as to why the case was not cleared earlier. We owe it to governing bodies and others in charge of schools to give them some kind of guidance about how they are supposed to deal with parents who come in to help with reading or with school trips. In village schools, it is often other members of the local community as much as parents who are involved in such activity. It would be a great comfort to governing bodies if guidance were set out for them to follow.

I suggest that a sensible procedure for people who volunteer to help out in school would be for the process of checking them out to start immediately but that they should be allowed to serve two or three days in schools before they are cleared, because the process will clearly take some time. The first part of the amendment is intended to ensure that the process works smoothly for the school.

Secondly, what do we do if a parent or some other member of what the school would regard as its community fails such a check? It will be devastating for the parent and the child for the parent suddenly to be exposed as someone not considered suitable to be around children. That is something for which a school must be prepared.

If we are to believe the BBC—I do not know from where it gets its figures—there are 200,000 paedophiles in this country. That is the figure that it was advertising widely in advance of its latest programme on the subject. That means that roughly one in 100 parents will be a person who should fail such a check. So schools should expect parents to fail quite often. There may be many instances in which parents will fail such a check once the provision is fully in force; there will certainly be some.

In any case, it will be a delicate matter for schools to handle. When they discover that, are they meant to tell everyone? If not—and the Minister shakes her head—they will have to be very careful about how they carry out the check; who knows that the check has been carried out; and how the negative result is transmitted to the parent. Otherwise, it will become known anyway, without the school having to broadcast it, because such matters will travel fast and far. So, there is scope for guidance and for the department to tell the school how it should behave in those circumstances. That is what I seek to achieve, although I will be delighted if there are other ways of doing it. I beg to move.

Baroness Blatch

My Lords, my amendment deals with something slightly different but is, nevertheless, to do with criminal checks. I have no intention, despite what I shall say about the way in which the system works, of speaking against the need to check the background of people who work with young children. It is a real issue, and the policy was decided by the team who worked with me at the Home Office before the 1997 election.

The introduction of the system has been horrendous. The problems appear to be insuperable. On 8th May, Philip Johnston wrote in the Daily Telegraph: Two months after the agency started work, long delays in vetting teachers and care workers are being reported by the agencies that recruit them. The problems are so acute that Estelle Morris, the Education Secretary, has urged David Blunkett, the Home Secretary, to take a personal hand in improving the system". He went on to say: Teachers, care workers and others who work with children or vulnerable people need an 'enhanced disclosure' check from the CRB before they can take up an appointment … The system has now been centralised under the CRB, which is supposed to complete 90 per cent of the checks within 15 working days. But only 10 per cent have been completed within that time and agencies say thousands of supply teachers have been waiting for up to 12 weeks—causing many to look elsewhere for work". Marcia Roberts, the director of external relations for the Recruitment & Employment Confederation said: Along with many other organisations we have been warning the CRB for months that it was underestimating the likely demand for checks. All our fears have now been realised". The delay causes huge problems. The Government have underestimated the impact of an Act of Parliament that was going to affect every teacher and every person who works in a school—the cleaners, the caretakers, the gardeners, the contractors on site, every volunteer, every mother who comes in to help with reading. I am talking only about the education system, never mind the health system or other public services. David Hart, general secretary of the National Association of Head Teachers, said: The CRB system is an absolute disaster. Now, the Government is going hack to an unsatisfactory situation because there's been a monumental cock-up". I use the words of other people. They work in education and are directly affected by the problems. It is dismaying to see that the company that has been given the work is Capita, the consultancy that also operated the individual learning accounts. It is not surprising that people are concerned.

I have one or two technical questions. On page 8 of the guidance document sent out by the department, there is a reference to health issues. The document says: Anyone appointed to a post involving regular contact with children or young people should be medically fit". My question is technical, but it is important. My understanding is that one cannot discriminate against someone with HIV/AIDS. If, however, staff must be medically fit, will someone with HIV/AIDS be excluded by that part of the guidance?

On page 10, the following question is posed: What checks should be made on applicants for teacher training courses?". My understanding is that courses that start after March 2002 should be asked to apply for enhanced disclosure. I understand that and agree with it. However, should there be a further check when someone takes up a post? All the rules say that they should because they would be working for a different employer in, perhaps, a different part of the country. It would be helpful to know whether the certificate of clearance can be passported around the country from job to job.

The promises about how long it would take to process applications have not been kept. It would be helpful to know what will happen on that front. Every member of staff, volunteer, or contractor working on site who comes in contact with the children in our 24,000 or so schools has to be paid for: an application on behalf of each one of them, costing £12, will be a great expense on the education budget. I know that the guidance says that the cost for schools will be met by the LEAs, but I wonder whether that has been recognised in the budget provision.

I turn to the new checks and the requirement for disclosure, which is why I asked the first question about newly-qualified student teachers. Paragraph 38 of the guidance says that where persons take up, a new appointment with a different employer, are re-appointed or re-elected as a governor, have a break in service of three months or more, or move to a post with significantly greater responsibility for children, or if the employer, school, further education institution or LEA has grounds for concern about their suitability to work with children", another check is necessary.

Why must a person who has been a governor for many years have another check carried out on re-election? It is no good a Minister returning to the Dispatch Box to say that it is not necessary; it says in the guidance that it is necessary even if there is a current, properly certified clearance document. That seems excessive. Of course we do not want unsuitable people working with children, but this is a belt-and-braces provision too far.

The application form that has to be filled in is intrusive. It asks for information which is of no relevance to whether a person is suitable to work with children. Section E asks for additional information. It says that the information, will help us to process your application more quickly". It asks for marital status and the number of financially dependent children under 18. It then asks for bank or building society account number, sort code, employment status and occupancy status, and mother's maiden name. Many people in this country who have bank accounts and sort code numbers often use their mother's maiden name as a kind of security check. That information has nothing to do with whether someone is suitable to work with children. Why is it necessary?

One answer is that additional information will help to process the application more quickly. I should like to know precisely how that works. Furthermore, my understanding is that it is not a compulsory part of the form. Information given by Warwickshire County Council to its teachers states, Unless otherwise told, please answer all questions in Sections A to H". That includes section E, from which I have quoted. What have bank accounts to do with finding out whether someone is suitable to work with children?

The noble Baroness was kind enough to write to me about the checks, for which I thank her warmly. But the letter did not deal with backlog and my concern about backlog needs to be addressed. Schools are losing volunteers and staff because they do not want to wait around. Some people in the community help with reading and tasks in the classroom in more than one school. It is excessive for them to be subjected to more than one check if they work in more than one school.

The noble Baroness's letter states on the second page, Parents who seek or offer to do work at a school should be checked in the same way as any other voluntary workers"— —I do not disagree— However, these provisions do need to be applied with a degree of common sense". When there is guidance from the department, and detailed and pedantic guidance from the local authorities to the schools, they have to follow it, but the guidance is not applied with any degree of common sense.

I have yet another missive—there is so much information concerned with criminal checks—this time from the Criminal Records Bureau of the Department for Education and Skills, but I have no date or other reference for it. On page 5, it states that elected governors should be checked after election. That is even if they were checked before the previous election and the one before that. That seems to be really excessive.

The document also states that they must be checked before appointment. If there are weeks of backlog, how on earth can they be checked before appointment? Once selected, they are appointed to governing bodies within days—and sometimes sooner if they have previously been governors—but the idea that they are kept waiting is unacceptable.

I am sorry that I have spent a little more time than usual on the amendment, but there are great anxieties in our schools. I believe that we are losing important assistance to our schools—that is, volunteers and members of staff—and the Government ought to reexamine the way in which the system is working.

9.30 p.m.

Baroness Ashton of Upholland

My Lords, I listened carefully to the noble Lord, Lord Lucas, and the noble Baroness, Lady Blatch. I shall attempt to give them as full an answer as possible and to deal with the significant points they made.

I shall begin with Amendment No. 121C. I appreciate the concern expressed by the noble Lord, Lord Lucas, about the position of parents who undertake voluntary work at their children's school. I hope that it will help to allay his concern to know that provision for checking parents who volunteer is not new. A school may not use the services of a person as a volunteer to work regularly with children where that person is subject to a direction and on my department's list of barred persons—list 99, as it is known. Therefore, where a school seeks to use a volunteer, including parents, to work in regular contact with children, it must be satisfied that that person is not on list 99. In other words, a check must be carried out.

That has been the position since September 1998. However, the arrangements for checking list 99 changed in March this year when the Criminal Records Bureau became operational. Prior to March, a school or education authority could check the list directly and the person concerned would not necessarily know that the check had been made. There were also separate arrangements whereby education authorities could arrange criminal record checks with their local police forces. However, those checks could be made only if the person would have substantial unsupervised access to children on a regular basis.

Since March, checks of list 99 are undertaken alongside criminal record checks by the Criminal Records Bureau as part of what are now called "disclosures". And we have now issued guidance advising that in addition to people who have regular contact with children, schools should also obtain a disclosure via the CRB in respect of anyone who is eligible to apply for one. I shall be happy to send the noble Lord a copy of the guidance to which the noble Baroness, Lady Blatch, referred, and to follow up any questions. I hope that he will find it useful.

We advise, for example, that any person who applies, seeks or accepts work with children at school should be asked to obtain a disclosure, regardless of whether the work is paid or voluntary. So, a parent or anyone else who volunteers to help out in the classroom should be checked.

Another category of person who should be checked is anyone who applies for, seeks or accepts any position where his or her normal duties will include caring for, supervising, training, or being in sole charge of children. Perhaps I may give specific examples. Someone who volunteers to accompany pupils on a residential trip and will be responsible for looking after or supervising the children should be checked. On the other hand, we would not expect a volunteer who will have only limited contact with children on a single occasion to be checked; for example, someone who helps out on sports day or accompanies an outing to a museum or local activity.

I can understand that noble Lords might be concerned that we should go too far in advising that parents who volunteer their services should be checked in the same way as other prospective volunteers and employees. However, being a parent does not of itself mean that someone is automatically suitable to work with other people's children or to have responsibility for them. It is a sad fact that a great deal of child abuse takes place within families and many of the people who are deemed unsuitable to work with children are also, unfortunately, parents—and in the case of Lauren Wright, who we will be discussing later, step-parents.

A number of safeguards are built into the arrangements for disclosures to ensure that information is not disclosed indiscriminately, that checks cannot be made without the individual's knowledge and that the individual is told what information the checks reveal.

In the first instance an application for a disclosure must be signed by the individual concerned to indicate his or her consent and then the person is sent a copy of the disclosure so that he or she can challenge any inaccuracy.

If a check reveals that a prospective volunteer is on list 99, however, the same safeguards in regard to confidentiality apply to that information as apply to any information about a person's criminal record that is revealed by a disclosure. Such information is confidential and its disclosure is governed by the Data Protection Act 1998 as well as the law of confidentiality. Also, the disclosure will be issued only to a person registered with the CRB and the Police Act 1997 provides that it is a criminal offence to reveal information supplied in a disclosure in a way that is not provided for in that Act.

It is difficult to envisage circumstances in which any staff other than the head teacher would need to have access to the information and it would certainly not be acceptable for any information to be disclosed to pupils or their parents. Because the individual has to agree and sign to have that check, I think that those with something they would not wish to be known which would make it inappropriate for them to work with children might be discouraged. That is the process that we believe makes most sense in this context.

There are two reasons why we believe that Amendment No. 130 is unnecessary. First, public authorities already have a duty to act reasonably in all circumstances, and they can be challenged in the courts if they do not. Secondly, as I have explained, there are already safeguards in place about the use of information provided by the Criminal Records Bureau.

The amendment raises concerns about two aspects of the new arrangements for criminal record checks, now called disclosures, that are operated by the CRB: the level of personal information that is sought on the application forms for a disclosure; and the fact that a disclosure for the purpose of child protection reveals information about the whole of a criminal record that a person has, not only about offences against children.

The CRB is clear that the information requested on its application form is needed to enable it to establish the identity of the applicant beyond doubt. That is necessary to ensure that highly sensitive information is not issued to the wrong person and that someone cannot obtain a disclosure by using another person's identity. The information requested is used only for the purpose of establishing and verifying the person's identity and is no more than people provide to a variety of organisations in the normal course of their lives—for example, when applying for a credit card. We believe that it is important to know precisely whom we are describing and talking about.

I am conscious of the concern, particularly among parents and others considering voluntary work among children, that some youthful indiscretion that is not relevant to children might become known in the school or the local community. It is not possible to limit the information included in a disclosure only to that which is relevant to the position the applicant is seeking. A person's suitability for work with children is invariably a decision that can be made only on a case-by-case basis in the light of the circumstances of each instance.

If we were to limit the information disclosed in the way the amendment suggests, schools would not be able to obtain information about drugs offences or offences of violence against adults. I am sure that the noble Baroness, Lady Blatch, would agree that such offences may well be relevant in assessing a person's suitability even if the offence itself did not directly relate to children.

Also the department's guidance about vetting staff and volunteers that I mentioned earlier stresses that a person's suitability for work with children should be judged in light of all relevant information and that a criminal record does not automatically make a person unsuitable to work with children.

The guidance advises employers to take account of a number of factors in deciding whether a criminal conviction is relevant: the nature of the offence; the age of the offence; the frequency of offences; and the nature of the appointment. A copy of the guidance is in the Library of your Lordships' House. I shall, of course, make it available to any noble Lords who wish to receive it. On that basis, I hope that I have reassured your Lordships on the two aspects of the amendment.

I want to talk about the Criminal Records Bureau. It is a large and complex project and is experiencing difficulties. Those difficulties are being dealt with as a matter of urgency. When these initial problems are resolved, we believe that the bureau will provide a more comprehensive and much quicker service than was available under the previous arrangements.

In the meantime, despite the vigorous efforts made by the CRB and noted by the noble Baroness, the position in regard to delays has not improved as quickly as we had hoped. We refuse to compromise on child safety, but we also need to make sure that the appointment of teachers can be done in a fast and efficient manner. We have therefore put in place interim arrangements to allow that. Those interim arrangements will stay in place until the CRB is fully up to date and meeting its performance standards.

Under the arrangements, CRB staff are trawling the backlog of applications and checking new applications to identify those in respect of teachers and other key staff for schools. For those applications, the CRB is performing checks of list 99. If that check is satisfactory, the employer or agency will be able to appoint the person provisionally. The full criminal record and police check will be performed and the relevant disclosure issued by the C'RB as soon as possible after that.

I hope that, on the basis of my detailed explanation, the noble Lord will feel able to withdraw his amendment.

9.45 p.m.

Lord Lucas

My Lords, I am most grateful for that explanation. The noble Baroness has answered quite satisfactorily all the questions that I put to her. It will be a great relief when the system starts to work well. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 121D not moved.]

Schedule 14 [Inspection of nursery education]:

Baroness Blatch

moved Amendment No. 122: Page 172, line 37, at end insert— "Rights to require paperwork In paragraph 18 of Schedule 26 to the School Standards and Framework Act 1998 (c. 31) (rights of entry), in sub-paragraph (2)(b) for "which he requires" there is substituted -which he reasonably requires". The noble Baroness said: My Lords, this amendment concerns the amount of paperwork and other information that nursery schools will have to prepare for inspection. The amendment is simple and, until we considered this in Committee, I thought uncontroversial. It adds a specific test of reasonableness to the amount of paperwork that inspectors can require from nursery schools when undertaking inspections.

I do not know how closely Ministers are in touch with the world of nursery education, or indeed with the professional world generally. One only has to glance at the articles, information and comment in the professional press to understand that the nursery world and the teaching world more generally are groaning under the weight of unreasonable demands for paper, partly from the process of inspection itself and partly from the need to comply with a whole range of constantly shifting demands for paperwork.

More and more is piled on to this paper mountain, day by day. The latest demand, which we have discussed elsewhere, is for exhaustive, expensive and time-wasting criminal records checks. By that I refer to those over and above what is necessary to secure information checks on those working with children.

We are also discussing elsewhere in the Bill massive new powers to regulate nursery schools in fields as extraordinary as sex education and religious education. How will their performance in those areas be inspected, may I ask? With no paperwork? I scarcely think so.

If Ministers do not think that there is a case for a test of reasonableness so far as demands for paperwork are concerned, then I fear that such a response would send out the message that there is a total lack of understanding of the problems faced by nursery schools.

I have studied carefully the Government response in Committee, but I regret to say that I was not convinced. Furthermore, those who have been in contact with me on this subject are also not convinced. By agreeing to a specific test of reasonableness, the noble Baroness would provide some reassurance to the world of nursery education. If she does not agree, I will certainly be reinforced in my belief that we need much wider-ranging constraints on the proliferation of regulation to be incorporated in this Bill along the lines of Amendment No. 34, which we discussed last week. I beg to move.

Baroness Ashton of Upholland

My Lords, I want to make absolutely clear the reasons why I shall resist this amendment. It is not because I do not agree with the noble Baroness, Lady Blatch, that requests from Ofsted must be reasonable. That applies not only to the thousands of pre-school playgroups and day nurseries now subject to regular inspection by Ofsted, but also to schools, which for some time now have been inspected by Ofsted. The point I need to emphasise is that adding the word "reasonably" in this part of the legislation would add nothing. If anything, it could have the opposite effect. Perhaps I may take a few moments to explain the position to noble Lords.

As a public body, Ofsted is already under a public law duty to act reasonably in all its dealings with schools, nursery settings and childcare providers. A specific requirement to act reasonably in one aspect of its dealings with its customers is therefore otiose in law. The noble Baroness, Lady Blatch, knows very well that adding unnecessary requirements does nothing to clarify the law and, at worst, casts doubt on a general duty to act reasonably. That would not help. We therefore think it better to leave the law as it stands.

I shall say something about what Ofsted has been doing to reduce paperwork requirements. In recognition of the potential burden that Ofsted inspections place on schools and other establishments, it has already reduced its requirements for documentation. It no longer collects detailed staff and curriculum data, performance data from earlier years, or insists on schools supplying data to Ofsted's own format.

Furthermore, the draft framework for school inspections from September 2003 takes this even further stating that, with the exception of the basic inspection forms, the documentation required by inspectors should be limited to what schools would normally expect to have available. The same principle applies to early years settings, in that documentation should not be written specifically for the inspection as that puts an undesirable burden on staff.

Those wholly desirable changes have not been achieved through changes to legislation, but rather through the normal process of dialogue between public bodies and those they serve. I believe that we have a good dialogue and that Ofsted has responded well.

For the reasons that I have given about the effect of the amendment—not the spirit behind it—I ask the noble Baroness to withdraw it.

Baroness Blatch

My Lords, it is disappointing. The noble Baroness said that my amendment was otiose. The Government have not been deterred from including otiose provisions in other parts of the Bill. There is so much that the Government have said that is being re-enacted from other Acts of Parliament.

The test of reasonableness is not new in legislation. The amendment would simply change the clause to read, "which he"—the inspector—"reasonably requires". It would present nursery schools with at least a challengeable test. The Minister says that the inspectorate is expected to behave reasonably always, but that could be said of every part of government. The world of nursery education is concerned about the issue, and I am sorry that the noble Baroness is not hearing that concern. Small though the amendment may be, I have had unprecedented contact since we discussed the issue in Committee with nursery schools pleading with me to press on to try to win the battle.

We shall be discussing later a whole new burden that will be put on nursery schools and it would be so easy for the Government to say that there ought to be a test of reasonableness when Ofsted requires information to be prepared ahead of an inspection. I am sorry that the noble Baroness is unable to respond to the amendment, but I cannot say that it is the last time that we shall discuss the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland

moved Amendment No. 123: Before Clause 171, insert the following new clause— "DUTIES OF LEAs AND GOVERNING BODIES IN RELATION TO THE WELFARE OF CHILDREN (1) A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children. (2) The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school. (3) The governing body of an institution within the further education sector shall make arrangements for ensuring that their functions relating to the conduct of the institution are exercised with a view to safeguarding and promoting the welfare of children receiving education or training at the institution. (4) An authority or body mentioned in any of subsections (1) to (3) shall, in considering what arrangements are required to be made by them under that subsection, have regard to any guidance given from time to time (in relation to England) by the Secretary of State or (in relation to Wales) by the National Assembly for Wales. (5) In this section— child" means a person under the age of eighteen, governing body", in relation to an institution within the further education sector, has the meaning given by section 90 of the Further and Higher Education Act 1992 (c. 13), and maintained school" means a community, foundation or voluntary school, a community or foundation special school or a maintained nursery school. The noble Baroness said: My Lords, in moving Amendment No. 123, I shall also speak to Amendment No. 137.

During the Committee stage I gave a commitment to respond to the amendments tabled by the noble Baroness, Lady Seccombe, which sought to strengthen the current arrangements for child protection. These amendments now implement that commitment.

Having listened to the arguments of the noble Baroness, and those of her right honourable friend, Gillian Shephard, I am convinced that by placing the education service's responsibilities for making child protection arrangements on a statutory basis, it will add further safeguards against child abuse. Moreover, in examining the issue, we have concluded that the arrangements need to go a little further than those that we debated in Committee. To place a duty solely on schools would leave gaps and might leave some children more vulnerable than others. That would clearly not be right.

Amendment No. 123 would place a statutory duty on LEAs and on the governing bodies of further education institutions as well. LEAs should be covered by this provision, not least because of their role in representing schools on area child protection committees and their responsibilities for groups of children not currently educated in schools. As to the inclusion of further education institutions, we would be remiss if we did not ensure equity in arrangements for under-18s in these settings, particularly given the proposals in the 14 to 19 Green Paper.

Before I conclude, I should like specifically to address the issue of enforcement of this new provision. For schools and local education authorities we shall have recourse to Section 497 of the Education Act 1996, which is ultimately enforceable by mandatory order. For FE institutions, the Secretary of State's powers of intervention contained within Section 57 of the Further and Higher Education Act 1992 will provide the enforcement mechanism. Failure by a head teacher or a member of staff to act in accordance with arrangements when they are in force would be grounds on which the governing body, or the employing authority in the case of LEA staff, could properly consider action against the individual either under disciplinary procedures or in terms of competence.

However, the clause does not intend to give rise to private law actions by individuals against an education authority, school or FE institution for breaches of the statutory duties it contains.

I should like to pay tribute to the noble Baroness, Lady Seccombe, and her right honourable friend Gillian Shephard for bringing the tragedy of Lauren Wright and the implications of that case to the attention of this House. I hope that the whole House will again be able to support these amendments, which I believe will strengthen the protection afforded to the children in our education system—an objective which I know all noble Lords share. I beg to move.

Baroness Seccombe

My Lords, I begin by thanking the Minister for sending me a copy of the new clause as soon as she had it to hand. It was very helpful. As she has explained, one of our main concerns has related to the Lauren Wright case; namely, that the head teacher and assistant teacher in that case could not be disciplined although they had failed Lauren in every way. They had not followed the guidelines—but, then, they were only guidelines and had no force in law. Our anxiety is that this amendment will give that force in law, which I believe is what the noble Baroness said. I should like a reassured on the record that failure to observe the content of the guidance would result in some kind of disciplinary procedure, which I believe is the reassurance that the Minister has given me.

Perhaps I may ask one or two questions. In subsection (1) of the proposed new clause, local education authorities are required to ensure that their arrangements are adequate. Who will judge what is adequate? Who will inspect the arrangements? Who will pursue LEAs that are not up to scratch?

In subsections (2) and (3), governors are given responsibility with regard to children at risk. The noble Baroness has said that governors, as employers, would be empowered to dismiss or otherwise to discipline heads and teachers who in some way failed to safeguard and promote the welfare of the children at the school. But what powers would LEAs have if the governors failed in this respect? In such a case, could they discipline teachers who had failed?

Lastly, is the Minister confident that this new clause will have the teeth that we want it to have? If that is all in order, it is my duty and great pleasure to say thank you to the noble Baroness. With her officials, she has come up with some very useful amendments.

Baroness Massey of Darwen

My Lords, I welcome the amendment, and I share some of the concerns of the noble Baroness, Lady Seccombe. The intentions to safeguard and promote the welfare of children and young people are important and honourable.

Can the Minister be a little more precise in defining the word "welfare"? It is slightly more difficult than defining "child" or "governing body". Does it apply only to children who are at risk or in need, for example? Following on a point made by the noble Baroness, Lady Seccombe, can the Minister say how local arrangements might be developed in practice, including drawing up frameworks for action in schools and monitoring those frameworks? Again, what is the role of the LEA? Do the Government foresee guidance being developed on this? If so, the amendment is a very valuable one.

10 p.m.

Baroness Walmsley

My Lords, I warmly welcome government Amendment No. 123. I am delighted that the Minister has responded in her usual thoughtful way to the concerns of the noble Baroness, Lady Seccombe, and the rest of us who spoke in Committee. Schools are on the front line with children and are in a good position to detect abuse and ensure that children receive the protection and services that they need. However, it is right that their duties in this matter should be made clear, as they are in Amendment No. 123.

I share some of the concerns expressed by the noble Baronesses, Lady Seccombe and Lady Massey of Darwin. I have a different question for the Minister about the resource implications of the new statutory duty that the amendment gives to schools. Teachers and officers of the LEA may need additional training, which costs money, and supply cover may be needed to enable them to benefit from the training offered. Will adequate consideration be given within the Comprehensive Spending Review to the additional funding that LEAs and schools may need to fulfil these important duties?

Baroness Ashton of Upholland

My Lords, I am grateful for the general welcome that the House has given the amendments. Because the guidance will be statutory, it will be subject to monitoring in the same way as all other statutory guidance. Governing bodies will be responsible for making arrangements in schools. It will be their responsibility to ensure that such arrangements are in force and it will be part of the normal framework of inspection to ensure that this is complied with. Anyone who feels that the issue has not been dealt with properly will have the right to object to the Secretary of State, who will be able to take action under the mandatory orders.

Governing bodies or the local education authority act as employers in this context. Employment law would come into force. The noble Baroness knows far better than I do that in Lauren Wright's case there was nothing on which the governing body could take action. There was no basis on which they could act. Now there will be. We believe that this will go some way to improving the situation, but we shall monitor it, as we do all other issues of children's welfare. Welfare is defined as the health, happiness, prosperity and well-being in general of a person. In this context, it applies to all children.

The amendment will give teeth. In considering what to do, we took the resource implications into account. It is for us to look into that. We gave careful consideration to the issue and we are responsible for that to ensure that the provisions work.

As I said in Committee, we cannot bring Lauren back or do anything for her. I think that the amendment will help to ensure that such a tragedy could not happen again and the plight of a little girl like Lauren will not go unnoticed.

Baroness Blatch

My Lords, before the noble Baroness sits down, I have one question. She said that there was no action that could have been taken and no basis on which action could have been taken in Lauren's case. Even without these amendments, which I very much welcome, do not teachers have a duty of care to the children in their charge? Did not the foster parents have a duty of care? Did not the social workers and the LEA have a duty of care? Were they not all neglectful? Did not they all breach their duty of care?

Baroness Ashton of Upholland

My Lords, that is a much wider question. I do not want to give the wrong answer. The particular point that I was referring to was that in Lauren's case, there were no procedures for the head to follow and there was nothing that meant that the head could be disciplined for not taking appropriate action. We have sought to remedy that with the amendment. The noble Baroness, Lady Seccombe, knows the case far better than I do, but I have read the details. Huge mistakes were clearly made by a number of agencies and individuals, of which the school was but one. We have said before in your Lordships' House that the stepmother was working as a lunchtime supervisor and therefore looking after other children. There is no question but that the situation that happened with Lauren was a tragedy of huge proportions. This is our response to it, by putting schools and local education authorities in no doubt as to what is required. Other agencies must do the same and I trust that they will do so.

On Question, amendment agreed to.

Baroness Ashton of Upholland

moved Amendment No. 124: Before Clause 171, insert the following new clause— "CONSULTATION WITH PUPILS (1) It shall be the duty—

1. (a) of a local education authority, in the exercise of any of their schools functions, and
2. (b) of the governing body of a maintained school, in the exercise of any function relating to the conduct of the school,

to have regard to any guidance given from time to time by the Secretary of State (in relation to England) or the National Assembly for Wales (in relation to Wales) about consultation with pupils in connection with the taking of decisions affecting them. (2) Any guidance under this section must provide for a pupil's views to he considered in the light of his age and understanding. (3) In this section— maintained school" means a community, foundation or voluntary school or a community or foundation special school; pupil" does not include a child who is being provided with nursery education (whether at a school or elsewhere); schools functions", in relation to a local education authority, means functions relating to—

1. (a) maintained schools,
2. (b) pupil referral units, or
3. (c) the provision of education for children of compulsory school age otherwise than at school."

The noble Baroness said: My Lords, in moving Amendment No. 124 I shall also speak to Amendment No. 138. I should like to pay tribute to the contributions of all noble Lords in Committee. It was clear that there was much support for the principle of ensuring that our children and young people participate more effectively in processes that affect them.

These amendments are designed to provide an avenue through which we can ensure that LEAs and schools have access to best practice in actively involving young people when making decisions that affect them. We believe that at the present time the best way to do this is by issuing best practice guidance, sharing information about what many of our best schools do to motivate and involve young people and to raise standards. We do not believe that there is a single best way of doing this. However, we do believe that it is an important issue and one where guidance based on the best can make a very significant difference.

The amendments recognise that many schools are already involving their pupils in different ways. Indeed, I genuinely struggled to recall the last school I visited which did not have a mechanism in place for doing so. I also recognise that schools have different mechanisms which apply depending on the age of the children and the way in which they discuss with the children how they wish to involve them. We want to encourage best practice so that it becomes the norm in all schools.

So we intend to develop an approach that is not prescriptive but means that schools will be able to find the best way for them of involving young people. We do want to see young people involved more effectively. However, we believe that the issue of how best to achieve that will depend on the circumstances of the school. Our guidance will support schools to develop innovative approaches that work for them. It will offer a flexible menu of options. It will also allow schools to adopt the best-fit model of participation and adapt it over time as circumstances change. It will reflect that pupils have to be engaged differently according to their age and understanding.

Amendment No. 124 ensures that we can pursue this approach. Amendment No. 138 is purely technical and ensures that certain definitions from the Education Act 1996 are read across to this amendment.

Arrangements will also support the flexible citizenship programme of study, allowing schools choice in planning provision, and ensure that Ofsted inspectors will look at a broader range of provision when they come to judge how well schools are involving pupils in the running of their school.I beg to move.

Baroness David

My Lords, I do apologise for rising to speak to Amendment No. 125 after eleven o'clock at night—if I have counted correctly, there are 11 noble Lords in the Chamber—lbut I feel very strongly about this amendment. It is about a subject, hearing the views of children, about which I have spoken on many occasions over a very long time. Here is another opportunity, and I am afraid that I am going to take advantage of it. The other reason is that I have had very strong support for this amendment, for which I am grateful, from the Liberal Democrat Benches and from the noble Baroness, Lady Darcy de Knayth, who has had to leave, for which she sends her great apologies.

I am grateful for the Minister's comments. The Government have gone some way, but not, I think, far enough. The purpose of this new clause is to fulfil our obligations under the United Nations Convention on the Rights of the Child. Under Article 12, states must, assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child". When the Committee on the Rights of the Child examined the UK's initial report back in 1995, it noted that this and other general principles the convention were not reflected consistently in our law and recommended that they should be. We regularly tell other countries that they must fulfil their human rights obligations, and we must do so too. This Government have done much towards creating a culture of human rights in this country. Building that culture for the future depends on children. Creating schools in which children feel valued as individual people whose views are to be taken seriously must be a big part of that process. So we need to deliver a clear message to local authorities, and to schools, and, above all, to children.

Saying that schools must have regard to any guidance on consultation which the Secretary of State may give from time to time is not a clear message and is far from reflecting the clarity of Article 12. The Government's new clause is not satisfactory. Statutory guidance sounds strong and it is strong when the guidance relates to a body of legal duties, as with the code of practice on special educational needs, for example. But there is a complete vacuum in education law on respecting pupils' views.

The Government's new clause simply leaves it to the Secretary of State to decide how far schools should be advised to go. The new clause does not in fact implement Article 12 at all. Local authorities and governing bodies will have to have regard to any guidance and should follow it unless they can think of a reasonable reason not to. The Minister has stated that Ofsted will check up on what schools are doing. In Committee the Minister on 9th May suggested that guidance will offer schools a flexible menu of options and allow schools to adopt a best fit model of participation and adapt it over time. The legal duty in our new clause does not prescribe a particular model of participation. The flexible menu will still be there to be developed and owned by schools themselves, but backed by an essential imperative to respect the principle.

Of course schools need guidance and the encouragement of rigorous inspection. But all of that needs to be based on a clear legal duty. What seemed right to the current Secretary of State when she moved a similar "legal duty" amendment to the Education Bill 1993 is more than right today. One of our new schools Minister's last initiatives as a Back-Bencher was to table a similar new clause in Committee on this Bill in the other place. Our ministerial team are obviously really with us on this issue! The Government should have the courage of their strong human rights convictions and go for a proper duty as the basis for guidance and for inspection.

For more than a quarter of a century, from the Children Act 1975, local authorities have been under a duty to respect the views of children in care. That duty was re-enacted and broadened in the Children Act 1989. There was no question of reducing that clear duty to statutory guidance. In Scotland the first education Act to be passed by the new Parliament includes a statutory duty to have regard to children's views in all decisions that significantly affect them. In education law there has been a principle of respect for parents' wishes in primary legislation since the Education Act 1944, and probably before that.

This really is not an issue to be hesitant over. We know that good schools already respect pupils' views on decisions that affect them; some schools have always done so. The purpose of a legal duty is to ensure that all schools do so in relation to all significant decisions affecting pupils. As far as I can see, the only possible reason for preferring the Government's new clause to mine is if one does not want all schools to be required to respect children's views.

One specific issue about the Government's new clause is its exclusion of nursery age pupils from even guidance on consultation. That seems very strange; there is no age limit on Article 12, and the habit of seeking and respecting children's views, which is not at all the same thing as following their views, should start young. That is important. You do not necessarily have to follow their views but you must try to hear them.

NGOs, including Save the Children and the National Early Years Network, have promoted very positive initiatives to hear young children's views. The pioneering Children and Young People's Unit, a cross-cutting unit placed in the Department for Education and Skills, has been promoting participation by children across government. The DfES responded earlier this month with its action plan for the involvement of children and young people, which was entitled, Listening to Learn. Its vision is of, a department which is young-person friendly and accessible, responsive to their needs and aspirations, and renowned throughout government for leading change in this area". I note that on page 12 the report prejudges the result of this debate and suggests that the department will develop statutory guidance on consulting pupils on decisions that affect them. However, if the department is serious about its vision and the timetable for achieving it, it must place a clear legal duty in the Bill. It has to be admitted that until very recently the Department for Education and Skills has lagged well behind the Department of Health in terms of respecting children's views. If it wants to be seen to be leading change, here is the opportunity. The Department for Education and Skills has not had a terribly good reputation in the past for being forward looking. Here is an opportunity for it to try to make that better.

If the Minister suggests that there are technical problems with the amendment, as there probably are—there usually are—there is plenty of time to put that right if the Government, having accepted the principle that pupils have a right to be consulted, concede that there should be a clear legal duty.

I hope that the Minister will change the Government's previous view and support the amendment. I beg to move.

10.15 p.m.

Baroness Walmsley

My Lords. I rise to support the amendment moved by the noble Baroness, Lady David. I do not feel that government Amendment No. 124 is good enough, for three reasons. First, the Government are under a legal obligation to implement the UN Convention on the Rights of the Child, which was ratified in December 1991. I do not see how the Government can possibly resist having a statutory right rather than guidance. When the United Kingdom Government were last examined by the Committee on the Rights of the Child, which is the international treaty monitoring body for the CRC, it strongly recommended action in schools in terms of implementing Article 12, which gives children the right to have their views considered. The Government will next be scrutinised by the committee in the autumn. All the indications are that that committee is more or less certain to issue very critical comments about the UK's treatment of its children. The lack of a statutory right to be consulted is only one of many criticisms that are likely to be made. I am sure that the Government would not wish to be so embarrassed.

The second reason is that consultation with children and listening to their views engenders a positive relationship between students and their teachers and it stresses a mutual respect and atmosphere of cooperation. The Government state that they would like more young people to be involved in politics and to use their right to vote. They cannot expect young voters to spring fully formed from the womb of the school and to rush to the polling station to put their vote in the ballot box unless they have got used to consultation, to considering the issues and to having those views respected. This would be a very good way of doing that. It would help to encourage young people to participate in the political process when they reach the voting age.

Finally, the approach would bring English education law into line with developments in other public services. The noble Baroness, Lady David, mentioned the fact that the health service and social services consult children. I also refer to Scottish legislation and education law in many European countries; Scotland already gives pupils that statutory right. That legislation has been in force for more than a year and there have been no reported difficulties for schools or pupils. For those three very good reasons, I support the amendment of the noble Baroness, Lady David.

Baroness Howe of Idlicote

My Lords, I support both amendments. But, unless I hear arguments which are strongly contrary, the amendment in the name of the noble Baroness, Lady David, is the one that I would prefer. It is clearly important to include an appropriate level of consultation with school pupils in areas which affect them. As has already been said by all three speakers, it is almost certainly the minimum that will be expected under human rights legislation and, indeed, under Article 12 of the United Nations Convention on the Rights of the Child.

It is clear that young people are very much better informed than they used to be. We can blame, or praise, modern methods of communication for that. They also have fairly straightforward views and criticisms of purely "adult-imposed" schooling requirements. The latest example of that was when young people spoke in support of a children's commissioner. Such an arrangement has been granted in Scotland but not in the rest of the UK. When young people spoke in support of a children's commissioner on 10th June, they illustrated very well how articulate they are.

It is certainly my view that we need to listen carefully to young people's views. Of course, that does not necessarily mean that we should accept them. I must confess that I should have preferred a decision that the Education Bill should include full provisions for pupil governors. From what I have read in the press, I know that that does not seem to be totally popular with the teaching profession at present. But my views on that form of consumer representation were formed well over 50 years ago when I worked at the Architectural Association's School of Architecture. That organisation had had student governors for a long time, and very effective they were.

I believe that other countries have such an arrangement at school level. I am told that South Africa, which borrowed much of its school law from us, allows for pupil governors. That country has decreed that the governors must be 16 years of age or older. What might be called the more "sensitive" issues are dealt with by an executive committee of the governors. In relation to the minimum requirements for consultation, as time goes on, there may be hope that this is but a first step in not too long a road to full, important inclusiveness of pupils' views.

Baroness Massey of Darwen

My Lords, as I introduced in Committee the amendment on the issue of listening to children, I shall be very brief and far less poetic and metaphorical than the noble Baroness, Lady Walmsley.

I am very pleased that there is so much support around the House for the notion of listening to children. However, I should like to be a little more generous than others have been in thanking the Minister for going such a long way and for producing Amendment No. 124, which I find useful.

There is already much good practice in schools on which to build. My own school—a primary school, including a nursery school—does listen to children and takes their views into account. It does not always go along with them but it listens and, many times, it acts on what the children say.

In Committee, several noble Lords contributed vigorously to the discussion on the issue of supporting consultation processes within schools. I believe that the Minister has listened. Consultation with children is important. It is enshrined in legislation and, indeed, in the Children Act. I agree with others that the issue of consultation should be included in all legislation and not only in that relating to education. However, I thank the Minister for acting on this issue and I look forward to her response.

Baroness Ashton of Upholland

My Lords, there is nothing which divides us in wanting to ensure that we bring children closely into consultation on issues within schools. My problem is not with the amendment per se but with the technicalities of doing what the noble Baroness, Lady David, would like us to do. There is a technical problem with the approach. The difficulty concerns the interpretation in law. That is what prompted us to table an amendment to ensure that we take forward in a real spirit of agreement the desire to consult and involve pupils.

I draw two issues to the attention of noble Lords. First, we want to ensure that schools are able to develop the approach which works for them. As I said in opening, many schools involve pupils but, because of the age of the children, the type of school and the way in which the children have wanted to be involved, they do so in different ways. School councils are a good example of that. I know of school councils which attend governors meetings and those which do not; those which operate with their fellow pupils in different ways; those which meet to discuss matters with teachers and those which discuss matters with only the head teacher. Those are small points, but they concern a different approach.

I know of schools, of which I have chaired governors, which involve pupils in discussions about anti-bullying strategies and do innovative work, particularly with younger children. We know of schools which involve pupils in important decisions about the future of the school. I refer, for example, to decisions on school uniform, how the school might operate activities, how it orders and buys play equipment, and many other matters. We are trying to allow schools to develop the approach that works for them. That is not because we believe that this is the end of the process, but the beginning.

It is the responsibility of government to consider the implications of their proposals in terms of the law. The introduction of a broad statutory requirement of this kind could cause difficulties for schools over the meaning and interpretation of the law and could increase the risk of judicial review if pupils felt that they had not been consulted when they should have been on a particular issue. That would either lead—

Baroness Walmsley

My Lords, I thank the Minister for giving way. I rise in a spirit of genuine inquiry. If I understand the noble Baroness correctly, she stated that the difficulty with a statutory right is what might happen in court. If that is the case, why is not there the same problem in Scotland?

Baroness Ashton of Upholland

My Lords, I do not know whether there is the same problem in Scotland. This is the best advice we have in terms of our legal representation and I bring it forward on that basis. I cannot answer for what might happen in Scotland. It may be—I am guessing—that the difference is that the provision is specific about ways in which children are consulted and that thereby that difficulty is avoided. That is precisely what I am trying to avoid, by not saying, "The way to do this is to set up a school council, with this representation with lots of regulation and guidance alongside it", and so forth.

We are trying to allow schools to develop the model which works for them. That is the approach which we think will work best. We want to take an approach which enables children and young people to be consulted and involved in ways which work best for schools. I reiterate that this is the beginning and not the end of that process.

The amendment does not help us in the approach we want to take. Therefore, I have the responsibility to raise these issues. We believe that our amendment is more effective. We want to minimise the likelihood of difficulties to schools and to increase the likelihood of schools taking effective action on their own initiative. I reiterate that we have a strong belief that participation can and should take many different forms if it is to fit the particular circumstances in which schools find themselves and is to be effective. Every noble Lord shares the desire to ensure that this is not lip-service but genuine participation by young people and children.

Therefore, on the basis that we believe Amendment No. 125 carries some serious risks of schools facing legal difficulties and also of less effective action by schools, I hope that the noble Baroness will not press her amendment.

10.30 p.m.

Baroness David

My Lords, I wish to respond to the Minister said. First, I thank very much those who have spoken in favour of my amendment. I had very strong and powerful support. I am extremely grateful for that. I thank the Minister for what she has said, but it was an extremely timid and uncourageous response. I am rather ashamed of the Department for Education and Skills for being so very timid. I hope that she will convey the message to her ministerial colleagues that I think they really are extremely timid and weak. They do not have the courage of their convictions. That is very bad.

I should dearly like to divide the House, but with so few people in the Chamber and it being after half past ten at night, it would be a fruitless exercise. But I feel very strongly about the matter and am extremely disappointed. In the circumstances, I shall not press my amendment.

On Question, amendment agreed to.

[Amendment No. 125 not moved.]

Schedule 17 [Amendments of Part 5 of Education Act 1997]:

Baroness Blatch

moved Amendment No. 126: Page 178, line 27, at end insert— (2B) In the case of maintained nursery schools or of funded nursery schools which are designated as Montessori schools, and where the principal or at least two senior teachers are holders of recognised qualifications from Montessori awarding bodies, the authority, in carrying out its functions under this section, shall do nothing that will require or advise schools or teachers to depart from principles and teaching methods that are appropriate to Montessori education and shall not insist on anything that is inappropriate to Montessori education. The noble Baroness said: My Lords, in moving Amendment No. 126, I shall speak also to Amendments Nos. 127 and 128. I make no apology for returning to the subject. I shall not repeat the points I made in Committee, except to remind noble Lords that the Montessori system is an international system of education established, tried and tested for generations and freely chosen in this country by many thousands of parents for their children.

This is not a fringe activity to be tolerated; it is a significant part of nursery education in the United Kingdom. It deserves proper recognition and status. Indeed, The QCA and the department—which frequently chop and change their ever expanding guidelines for nursery schools—might usefully learn from the consistency and success of Montessori bodies.

The three amendments have simple objectives which, frankly, I do not think any reasonable government would, or indeed should, resist if they really meant what they said, that they valued Montessori education.

Amendment No. 126 asks that the judgment of qualified Montessori schools and teachers should not be overridden by public authorities so far as concerns the principles and teaching methods of Montessori education.

Amendment No. 127 asks that Montessori qualifications—which I remind your Lordships are earned over two years and many hours of practical experience—should be in all respects adequate for all educational purposes in running, managing and teaching in a Montessori school.

Many teachers and managers now fear they are facing the nonsense of being asked to requalify in a different—and lower level—qualification that is inappropriate to Montessori teaching.

Do the Government not realise that if we ask would-be Montessori teachers to go through too many qualification hoops we may end up by strangling the Montessori system? If that happens, no Minister in the Government can say they were not warned of that risk.

Amendment No. 128, which is new, provides that the QCA, in issuing directions to Montessori awarding bodies, should do nothing to require them to depart from teaching and accrediting principles appropriate to Montessori schools and should not require them to use any accreditation standards that are inappropriate to Montessori schools. That is a reasonable amendment that the Government should accept.

I have read carefully the words of the Minister in Committee. I have also had further representations from Montessori practitioners who have convinced me that the arguments I put in Committee were justified.

Whatever the Minister may say, or whatever may be said by officials, there is a deep sense of unease in the Montessori world that they are not respected or valued as they might be.

When I speak to these schools, I find a profound sense of despair settling on professionals as they witness the prospect of yet more regulation, more interference, more hours spent ploughing through paperwork and, in this case, all too often for purposes entirely unconnected with Montessori education.

The Minister said in Committee: What is at issue is whether all 15 Montessori bodies should separately have qualifications accredited by the QCA as part of the national framework".—[Official Report, 28/5/02; col. 1300.] With respect, that is not the case. For the department's information, there are nine Montessori awarding bodies, not 15. Although Montessori bodies have hoped for that in the past, they now accept that it is not possible. They accept that a proliferation of qualifications is undesirable. They are not holding discussions with the QCA on that basis.

Contrary to what the Minister appeared to believe, they accept that it would not be financially viable to set up a Montessori awarding body. The question is how the system can be organised so as not to damage the integrity of Montessori education but to incorporate its ideals and avoid placing an unnecessary and damaging burden of inappropriate regulation and re-qualification on Montessori trainers, schools and teachers.

The Minister said in Committee that Montessori qualification was not level 4. That statement has caused great dismay to the Montessori community. It takes issue with the idea that just because a qualification has not been submitted to the QCA, for accreditation, it cannot be regarded as level 4. Level 4 qualifications in early years are a recent introduction. Previously, there was only level 3 qualification, the equivalent to national vocational qualification level 3. The Montessori teaching diploma has always been at a higher level than NVQ level 3 and holding it has exempted students from the first year of a variety of courses, including the B.Ed with qualified teaching status. Surely the Minister is not saying that, in the department's view, it does not have that status. That needs to be made clear beyond doubt.

Perhaps I may suggest a way forward. The Montessori community continues its work of establishing common minimum standards for Montessori training in the United Kingdom. It is also piloting a kite-marking programme for Montessori training. All that is lacking is to ensure that Montessori diploma holders have their qualifications recognised by Ofsted. It believes that the most appropriate route would be to link the Montessori diploma with the Council for Awards in Children's Care and Education certificate of professional development, a qualification in the national framework, the certificate giving license to practise. The certificate in itself may have its limitations but, combined with the practical and theoretical training, including extensive practice-based training, that constitutes the Montessori diploma, that should more than meet the level 3 criteria of the national standards.

Unlike all of the other bolt-on options, that would not require a Montessori student to backtrack at a lower level over material already covered simply to gain a so-called recognised qualification. I understand that the Montessori bodies would like to adopt that approach from September and that all that they are waiting for is some official blessing from Ofsted and the department. Can the Minister today give that indication and urge Ofsted and the QCA to support that proposal, instead of insisting on tying Montessori education within the straitjacket of an inappropriate and inflexible national framework?

I hope that in his response the noble Lord, Lord Davies, will accept at least some of the amendments. That would send a powerful signal that he meant what he said to those thousands of dedicated trainers and teachers. If he cannot, I hope that he will undertake to consider the points that I have just made and be prepared to return at Third Reading with a statement as to whether the option that I have sketched out would be acceptable.

Finally, perhaps I may take this opportunity to ask two other questions. First, will the Minister give a firm assurance that no qualified Montessori teacher, school manager or proprietor will have to re-qualify under the provisions and that, in view of what I have told the House about the high standard of Montessori qualifications, past qualifications will be fully accepted? Great fear and anger is abroad on that point.

Secondly, if the Minister cares about Montessori, will he instruct his officials to ensure that information and contact details about services provided by the Montessori community are included in government publications? For example, Wanting to Work in Early Years Education, Childcare and Playwork, which was funded by the department, failed to include Montessori. What is more, the good practice guide for early years education, Childcare Quality Improvement and Assurance Practices, includes details of six quality assurance schemes, one of which is still only being piloted, but not the one set up by Montessori Education UK, which has been running for six years. I understand that representations have been made about the matter, with no result as yet. Will the Minister give instructions that Montessori should, in future, be included as another example?

Against that background, is it any wonder that the Montessori world feels troubled and undervalued? I hope that the Minister can give us better reassurance in response to the amendments and will undertake to follow it up in practice. I beg to move.

Lord Lucas

My Lords, I declare an interest as the stepfather of a young lady who is training to be a Montessori teacher. We all have much to gain from going down the route proposed by my noble friend. Montessori education is widely appreciated, respected and used by parents. As we are extending the general coverage of regulation to that sector of education, the Department for Education and Skills should give it proper respect.

On the other hand, I have always been perplexed and, to some extent, annoyed by the fragmentation of the Montessori world. It is difficult to know exactly what one is getting in a Montessori school. We have never really known about the qualifications for teaching. We have known what the philosophy is, but we have not known what recognised training has been done. Much will be gained from the department's putting pressure on the Montessori world to bring things into a recognised framework. If that is done alongside giving full respect to Montessori principles, it could work well. In other similar professions, that sort of pressure has worked well to bring things together under common regulation. In this case, it would give parents of the pupils concerned confidence in and knowledge of what their children get at a Montessori school.

Some of the points made by my noble friend have great validity. Those who have taught in and managed Montessori schools for some time should not have to go back and do the equivalent of a PGCE to prove that they can do what they have done for years. There must be some form of migration, through which people who have achieved Montessori qualifications can gain qualifications that will enable them to teach in other nursery schools, without having to begin again with the basics. A spirit of co-operation and respect is needed, and I hope that the Minister will assure that that is what we will get.

10.45 p.m.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble Lord, Lord Lucas, and I am pleased to follow him. Before dealing with the amendments, I must make it as clear as I can that nothing that the Government are doing or would do—in the Bill or elsewhere—harms or threatens Montessori education in any way. The Government value the contribution of Montessori education and have no wish to see it damaged or altered.

I shall start with Amendment No. 126. The Bill ensures that providers of early years education, such as Montessori schools, will retain the flexibility to plan learning experiences that are appropriate to the particular needs of the children, families and communities with whom they work. As my noble friend said in Committee, the introduction of a foundation stage has been welcomed almost universally in the sector.

The curriculum for the foundation stage is not prescriptive in its principles and teaching methods and is already provided appropriately in a range of early education settings, including Montessori. Nothing in the Bill changes or threatens that. I hope that I can reassure noble Lords that neither the department nor the Qualifications and Curriculum Authority wish to make the foundation stage curriculum inoperable for any of the practitioners who deliver it.

I turn to Amendment No. 127, and the recognition of Montessori qualifications. I want to be clear that there is no prospect of the Government imposing inappropriate qualifications on Montessori. I understand that since Committee stage Montessori Education UK has written to QCA and to Ofsted proposing a way forward that involves the awarding body responsible for other childcare qualifications, the Council for Awards in Children's Care and Education—CACHE. QCA is seeking clarification with Montessori, CACHE and Ofsted.

We are not yet certain that this will prove to be the solution, but it is increasingly clear that accreditation to the national framework will be possible within the scope of the current arrangements in a way that will not in any way compromise Montessori. Therefore we continue to believe that it would not be appropriate to make an exception of any awarding body in primary legislation and that QCA should be allowed to use its technical and professional expertise even-handedly in this as in other cases.

Although I understand that Amendment No. 128 is also designed to ensure that the special characteristics of Montessori education are respected, I do not believe the amendment is necessary. It primarily addresses the power to direct. The power is designed to safeguard the effective delivery of qualifications and the interests of learners expecting to take qualifications, where there has been a failure or there is a serious risk of failure by the awarding body and where the withdrawal of accreditation would not be viable.

The power can be exercised only if an awarding body is failing to comply, or is at risk of not complying, with a condition of accreditation which it had agreed to accept. Furthermore, the power to direct, which should be used only as a last resort, is designed to restore compliance with those accreditation conditions. Accreditation is a voluntary process and, while, as I said earlier, there have been discussions between Montessori and QCA about the issue, so far, no Montessori organisation has submitted any qualifications for accreditation.

Therefore the amendment is seeking to tie QCA's hands in the eventuality that Montessori does so. However, should Montessori submit its qualifications and they meet the conditions necessary for accreditation, then the scope of the power to direct will simply ensure that Montessori continues to meet them.

I do not believe that Montessori provision needs to be, nor indeed should be, treated as a unique case. Nor do I believe that the regulatory authorities should have their hands tied in such a way for provision of which they have a reasonable understanding, but have not yet had an opportunity to scrutinise closely. Our primary concern must be to protect the interests of learners and to protect credibility in both the educational and qualifications systems. I am confident that, should QCA be given the opportunity, it will work closely with Montessori to ensure that sound qualifications that best serve the needs of learners are the result. I am confident that a clear and satisfactory solution will he found. Noble Lords will understand that I do not believe we should necessarily negotiate it on the Floor of the House.

I am keeping a watchful eye on the matter and I will of course be in touch with the noble Baroness, Lady Blatch. But I hope on the basis of the reassurance I have put on the record and the understanding that we are waiting for the discussions to move forward, and recognising the points made by the noble Lord, Lord Lucas, that the noble Baroness will feel able to withdraw her amendment.

Baroness Blatch

My Lords, I am totally puzzled by the response. The noble Baroness has not responded in detail to my suggested way forward. I said that all that was lacking was to ensure that Montessori diploma holders have their qualifications recognised by Ofsted. Is the noble Baroness saying that that is open for submission to Ofsted for recognition? As I said, the Montessori community is continuing its work of establishing common minimum standards for Montessori training in the United Kingdom.

The Montessori establishment, not the DfES, is responsible for Montessori education. If the Montessori establishment is prepared to submit its diploma holders for recognition by Ofsted, it would be helpful if the noble Baroness would tell me whether that is acceptable. It believes that the most appropriate route would be to link the Montessori diploma with the CACHE certificate of professional development. The noble Baroness referred to the CACHE certificate, which is a qualification on the national framework.

I do not welcome discussions with myself about the matter; I believe they should be taking place with Montessori. The Montessori community is most anxious to retain the integrity of Montessori education. For the people who work within that educational system, satisfying their client group—those who choose Montessori education—that ought to continue and nothing the DfES does should stand in the way of that.

The Minister began by saying that nothing the DfES intends to do will harm or damage Montessori education in any way. I cannot take that statement at face value because I am not sure that there is not a way of applying the national framework so as to have a harmful effect on Montessori. The Minister also said that there is no prospect of imposing any other qualification on Montessori education. We need to be convinced of that, too.

I shall have further discussions with the organisation, but the Minister said that no organisation has submitted any qualification whatever for accreditation. However, I want to conclude by repeating the questions I asked earlier. Would it be possible for Ofsted to recognise the value of Montessori diploma-holders and the value that has within the national framework? Is there any chance whatever that the Government have moved forward on that positive suggestion?

Baroness Ashton of Upholland

My Lords, I tried to deal with the noble Baroness's points. I presume that Montessori UK is the particular Montessori organisation to which the noble Baroness is referring. There are nine different Montessori organisations and the generic name "Montessori" covers all nine. The particular proposal to which I referred relates to Montessori UK. We have written to the QCA and to Ofsted and they have proposed a way forward. We have great hope that within that proposal there may be steps we can take, but conversations are continuing and I would not like to reach any conclusion on the Floor of the House. That would be inappropriate.

If the noble Baroness is referring to a different Montessori organisation, perhaps she can give me more details. I would then be happy to respond.

Baroness Blatch

My Lords, I shall speak to those in the Montessori community between now and the next stage of the Bill. There was a slightly warmer reception to the amendments today. There was a distinct chill in the air when similar amendments were tabled in Committee. I do detect a slight aversion to Montessori within the department—not on the part of the Minister. I believe that within the department there is a frisson of some sort towards the organisation and, frankly, that is a barrier that we need to break down.

I believe that this is a most valuable part of nursery provision across the country. It should be recognised as such and we should do what we can to ensure that it remains so. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 127 and 128 not moved.]

Baroness Sharp of Guildford

moved Amendment No. 128A: After Clause 193, insert the following new clause— "TRANSPORT FOR PERSONS OVER THE ACE OF 14 (1) A local education authority shall make such arrangements for the provision of transport or otherwise as may be necessary to secure the attendance of persons over the age of 14 receiving education or training—

1. (a) at schools,
2. (b) at any institution maintained or assisted by the authority which provides further education or higher education (or both),
3. (c) at any institution within the further education sector,
4. (d) pursuant to an order made under section 82 of this Act, at any establishment, or
5. (e) at any establishment (not falling within paragraph (b), (c) or (d)) which is supported by the Learning and Skills Council for England or the National Council for Education and Training in Wales.

(2) In considering what arrangements it may be necessary to make for the purpose specified in subsection (1), the local education authority shall have regard (amongst other things) to—

1. (a) the needs of those for whom it would not he reasonably practical to attend a particular establishment to receive education or training if no arrangements were made.
2. (b) the need to secure that persons in their area have reasonable opportunities to choose between different establishments at which education or training is provided,
3. (c) the distance from the homes or persons in their area of establishments such as are mentioned in subsection (1) at which education and training suitable to their needs is provided,
4. (d) the costs of transport to the establishments in question and of any alternative means of facilitating the attendance of persons receiving education or training there,
5. (e) the age of the person and the nature of the route, or alternative routes, which he could reasonably be expected to take,
6. (f) to any wish of him, or if the person is under the age of 18 his parents, to be provided with education or training at an establishment in which the religious education provided is that of the religion or denomination to which he or his parent adheres, and
7. (g) any guidance issued by the Secretary of State.

(3) Before determining what arrangements it will make under subsection (1), a local authority shall consult—

1. (a) any other local education authority that they consider it appropriate to consult,
2. (b) the governing bodies of schools maintained by the authority and of any institutions in the further education sector providing education or training for the people in its area,
1476
3. (c) the Learning and Skills Council for England (in the case of local education authorities in England) or the National Council for Education and Training in Wales (in the case of a local education authority in Wales), and
4. (d) any other person specified by the Secretary of State for the purposes of this section.

(4) Any transport provided in pursuance of arrangements under subsection (1) shall be provided free of charge. (5) A local education authority may pay the whole or any part, as they think fit, of the reasonable travelling expenses of any person receiving education or training at any institution mentioned in subsection (1) for whose transport no arrangements are made under that subsection. (6) Arrangements made by a local education authority under subsection (1) shall—

1. (a) make provision for persons receiving full-time education or training at any institution within the further education sector which is no less favourable than the provision made in pursuance of the arrangements for pupils of the same age at schools maintained by the local education authority, and
2. (b) make provision for persons receiving full-time education at institutions mentioned in subsection (1)(d) which is no less favourable than the provision made in pursuance of the arrangements for persons of the same age with learning difficulties (within the meaning of section 13 of the Learning and Skills Act 2000 (c. 21) (persons with learning difficulties)) at schools maintained by a local education authority, or where there are no such arrangements the provision made in pursuance of the arrangements for such persons for whom the authority secures the provision of education at any other institution.

(7) Regulations may require a local education authority to publish, at such times and in such manner as may be prescribed, such information as may be prescribed in respect to the authority's policy and arrangements relating to the making of provision under this section. The noble Baroness said: My Lords, the amendment, which we discussed in Committee, relates to the transport of those over compulsory school age. It is a longstanding issue, particularly with colleges of further education, partly because conditional obligations are already placed on LEAs. Clause 193 and Schedule 19 make it somewhat clearer that there will continue to be obligations on LEAs but they remain conditional.

It is not explicit that LEAs must be responsible for the provision; it is assumed that colleges will continue to provide via their own access funds. In addition, the provision focuses only on 16 to 19 year-olds and there are problems because those older than 19 need help with transport costs. In addition, with the new 14 to 19 provision, there will also be the issue of the transport of those under 16 who need to get to the colleges and to work-based places.

In Committee, the Minister responded at some length. We raised the matter at half past midnight and we have done a little better this time—but not much! It was suggested that the amendment was totally inappropriate. The Association of Colleges was not happy with that response. It has asked me to bring it back. It said that the amendment was designed, first, to impose on the LEA an absolute duty to arrange transport for students rather than the conditional duty of Section 509 even if that section is enhanced as envisaged in Schedule 19; secondly, to extend to all adult students the obligations on LEAs which Schedule 19 seeks to create for the 16 to 19 year-olds; thirdly, to strengthen the requirement for equality of treatment regardless of institution attended; and, fourthly, to add a new duty in respect of transport for the 14 to 16 year-olds undergoing vocational or work-based training of the type envisaged under the clauses of the Bill.

To date, the Government have given no public explanation of how they believe that the new requirements set out in Schedule 19 will strengthen the obligations on LEAs in respect of transport for 16 to 19 year-olds or under what circumstances they might be willing to use their powers of direction, which have never been given under Section 509 or its predecessors despite a virtual withdrawal from the field of 16 to 19 transport by some LEAs.

The Government have not given any public explanation of why they believe it appropriate to draw a distinction between 16 to 19 year-olds and adults in the obligations they believe reasonable to lay on LEAs or about their thinking on the way in which policies for assistance with transport might assist adult access to continuing education. Equally, they have been silent on the question of how 14 to 16 year-olds will access vocational or work-based learning. Is the duty to provide on the LEA, the learning provider, the parent or no one?

There are, I think, real problems here. We are anxious to encourage participation on the part of 16 to 19 year-olds. Transport costs can be very considerable for those young people. They can be a major disincentive to participation. While there remains obscurity as to who bears the burden, if the buck can be passed it will be passed between LEAs and colleges and from colleges to parents. That is not satisfactory. A clearer delineation of responsibility needs to be given. I beg to move.

Baroness Match

My Lords, first, unless I have missed it, there is no reference to an upper age limit. I assume it to be post-14 education. In speaking to the amendment, the noble Baroness referred to 14 to 19 year-olds.

Baroness Sharp of Guildford

My Lords, there is a problem with some of the young adults, in particular those up to 25.

Baroness Blatch

My Lords, secondly, as far as I know—unless the law has changed or is about to change—from 14 to 16 statutory school age transport arrangements are in place which meet the distance from school requirements. I assume that that is subsumed in this discussion.

Another big issue arises here. The Government go on ad nauseam about inclusiveness. A large number of post-16, non-statutory aged children, in rural areas cannot get to their local tertiary college or further education college to undertake foundation courses, or whatever they might want to do. It is not that they cannot afford the bus fare; for many there is no bus. In large tranches of the country, there is no public transport in villages to take people where they want to go and to bring them home. We know from the No. 10 Policy Unit that millions of pounds are expended almost on a weekly basis on scheme after scheme. If there is to be a policy of inclusiveness, this is a practical policy which would allow those with such an aspiration to continue their education post-16 in some form of tertiary provision. That would apply whether the education was provided in a school sixth form, a tertiary college, a college of further education or, as I have mentioned already, a foundation course in a college of higher education.

There is an issue here that needs to be considered if a large number of young people are not to be prevented from taking advantage of what is really very basic and fundamental post-16 education.

11 p.m.

Lord Lucas

My Lords, I am delighted that the noble Baroness has brought this amendment back. This has never been a subject which the education department, in any of its previous incarnations, has wanted to address because the potential costs involved in reforming the school transport system are so large. This amendment illustrates quite graphically why they are large. However, the distortions that over the years have developed in the education system as a result of not facing up to this are now reaching the point where they must be dealt with. To have the matter spelt out so clearly and extensively in the amendment is immensely helpful.

I hope that the noble Baroness will press the amendment to a Division. The Government have sent their troops home and at least we would achieve an adjournment of the House at 11 o'clock. That would be a nominal victory. I have wandered around the House and, unless noble Lords are hiding away in a bar or in someone's private room, they must have left. They are not to be found in any of the public rooms. I encourage the noble Baroness to say that debate until 11 o'clock is enough. An extra hour put on the business tomorrow would not be a great problem for the Chief Whip. I am sure that he would be able to fit in the remaining amendments then.

I return to the amendment. It raises the whole question of how we should deal with children living in a relatively widely dispersed society, such as the countryside. However, when considering a suitable FE college for 16 year-olds, it could be anywhere. The cost of attending school for 16 to 19 year-olds living in the country can reach as much as £1,000 per year. That is the case if, as my noble friend Lady Blatch pointed out, they can even get to a college. That cost really should be taken into account, if for no other reason than that it should be considered when planning the pattern of provision of education for this age group.

It is seductive to seek to gather all provision into big centres because the unit costs are cheaper, but if transport matters are taken into account, then the total costs and the possible reduction in opportunity might outweigh those reduced unit costs. That consideration should be a part of the decision-making process and public authorities must look with a clear eye at the transport costs they cast on to pupils and their parents.

I am also delighted to note that the amendment faces up to the need to provide for some of the costs of pupils being able to choose which educational establishments they attend. If it is decided to provide a bus service to one particular FE college—that would follow the pattern of provision made for schools—then young people will be deprived of a great deal of opportunity. FE colleges do not all provide the same range of courses. Young people living in the middle of Hampshire might want to attend college at Eastleigh, Andover or Basingstoke. Some courses might only be available even further afield. It is not a question of finding everything at the local FE provider.

Many questions have to be asked and some radical thinking will be required. That would go a long way towards improving the provision of transport for pupils of all ages, in that potentially it might improve the position for parents who, for one reason or another, do not have access to free school transport. That may be either because they live too close to the school or because they have chosen a school other than that designated by the local education authority.

For that reason, I am saddened to see subsection (4) of the amendment which states that, Any transport provided … shall be provided free of charge". That misses the point. At present many children have to pay large sums of money. It would be better and more reasonable to put in place an arrangement whereby children could pay rather less, but at least contribute something. In that way everyone would be better off than they are at the moment.

Beyond that, I support the amendment. If we do not agree it tonight, I hope that we shall return to the subject frequently and that, over the years, we shall see some movement on it.

Lord Davies of Oldham

My Lords, the noble Lord, Lord Lucas, suggested that we adjourn at 11 o'clock, but he spoke until five minutes past 11, so that is the end of that proposition. I can go some considerable time past 11. Lest he think that we have no intention of sustaining our commitment to the Bill this evening, I reassure him that I can call up demons from the deep, which will come at any hour of the morning.

Let us ensure that we concentrate on the amendment. Of course I share entirely the sentiments expressed on all sides of the House that transport for students in further education is an extremely important matter. I agree with the noble Baroness, Lady Blatch, that transport cannot be the be-all and end-all for the obvious reason, as she rightly says, that there is no point in offering transport support to students when there are no buses or trains to catch and when they cannot avail themselves of such transport.

Baroness Blatch

My Lords, it would be perfect if transport were laid on. I am saying that public transport is often not available even if students could afford the fares.

Lord Davies of Oldham

My Lords, that merely reinforces my next point that the amendment does not draw a distinction as to which students are to be supported. The mind boggles at the concept of every student at a further education college being provided with subsidised transport. The figures would be astronomically high, as the noble Lord, Lord Lucas, suggested. It would mean that every other support that one wanted to provide in further education would have to give way to the one priority of transport. Although transport is important, it is not the only factor that deters students from participating in further education.

A few years ago I knew a student who cycled 12 miles to a Lincolnshire college. There was little in the way of public transport for him to use, so he would have been much better supported in other ways. He came from a poor family with limited access to resources, so buying the materials required for his course was his main problem. He did not have transport problems; he was prepared to get on his bike, starting at 7.30 in the morning and cycling home at night.

We cannot pretend that transport support would be the panacea for all issues regarding further education. I agree with the noble Baroness, Lady Sharp, that transport is an important feature, which is why we are making constructive proposals, but the noble Baroness, Lady Blatch, hinted at the point that it is not clear whether the amendment would take the place of existing provision for students under the age of 16.

There is a statutory entitlement for such students to be provided with transport. I assure the House that we recognise the obligations of ensuring that such provision also obtains for post-14 students on the new courses who are not attending school but who go to a place of work or training and which may meet the same requirements of being more than three miles from their home. We shall ensure that they get the same support as if they were attending school.

We want to ensure that additional help is given to students in the 16 to 19 group. The noble Baroness, Lady Sharp, will recognise that the amendment has an unlimited dimension, which makes it impossible to quantify and I shudder to think of the resources that it would require. We intend to develop additional opportunities for support for students in further education in the 16 to 19 group.

Clause 193 and Schedule 19 are designed to ensure that the needs of students of sixth-form age in further education are met effectively. They require LEAs, colleges and others to work together on developing local policies and delivery. Both have learner support funding to help with this. Clause 193 and Schedule 19 were developed to get LEAs and colleges to work together in developing more effective arrangements where their interests overlap. That is where the independent research recommends that we concentrate our efforts. The research has also shown that a key problem for students has been the lack of information about transport support and services available in their area, and we intend to improve the quality of information provided.

In addition, there will be a duty on the LEA to ensure that the provision or support as set out in the statement is actually provided. Most importantly, the schedule will help to ensure that no student is prevented from following further education because he or she cannot access or afford transport. Students have an element of choice in the courses that they follow and the institution that they attend—a point referred to by the noble Lord, Lord Lucas, in terms of whether they might necessarily go to the nearest college when the appropriate course might be at a more distant institution. Students are supported, where necessary, in travelling to courses beyond their local area. LEAs take account of the costs involved and any alternatives, such as residential provision or other modes of transport where these would be more effective.

The overall effects of these requirements would be considerably to strengthen the obligation on LEAs in respect of transport for 16 to 19 year-olds. If a further education transport policy was completely ineffectual, the Secretary of State could use her powers of direction.

Most transport support for students over 19 is provided by learning and skills council funded colleges and by other institutions, rather than by LEAs. So we have to address ourselves more widely than issues relating to LEAs.

We are currently reviewing arrangements for funding adult learners. The review will include transport as part of the range of support available for adults in a variety of learning contexts. We shall consider whether and what changes are necessary to transport arrangements for adults when this work is completed. We should not wish to change arrangements in a piecemeal fashion.

I can give the noble Baroness, Lady Sharp, an assurance that we are mindful of the needs of older students. She is right to refer to them in her amendment. However, she will recognise that the way in which the amendment is drafted lays an unconfined obligation on the Government of staggering proportions in terms of public cost.

I hope that my response will satisfy the noble Baroness, Lady Sharp. The amendment, depending on how it is intended to operate, would either create financial commitments and confusion of responsibilities for students of 19 and over, or a duplication of requirements and confusion for students between 15 and 19, and it is not compatible with the work that is currently in progress for reviewing student support for older students.

I can assure the noble Baroness that we shall continue to monitor the effects of arrangements for students of all ages. It is not that we are not very much seized of the fact that transport is an important dimension on restricting access to further education and of the fact that it needs to be tackled. But this amendment goes further than we are able to accept. I hope that the noble Baroness will recognise the objectives that we have in common, and the fact that the Government are following a strategy which will improve the position, and that she will feel able to withdraw the amendment.

Baroness Sharp of Guildford

My Lords, I thank the Minister for his reply. I must say that it was quite tempting to press the amendment and to see whether we were in fact keeping a House. However, I think that many of us would like to see the hack of the Bill rather than to pursue it again tomorrow.

I thank the Minister for his remarks, which clarify the position. One or two questions remain to he pursued a little further. For example, he spoke about LEAs and colleges working together to provide a more effective transport system for 16 to 19 year-olds. There are problems, particularly in rural areas, where no transport is available. I very much hope that if the yellow bus school transport gets off the ground and develops further, we shall see it being used across different forms of educational provision; it might be the most suitable.

Also, while there is clearly an obligation for 14 to 16 year-olds who are going to work-based learning, they could have problems accessing that work-based learning. Some thought may have to be given to that.

We shall look carefully at what the Minister has said. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.15 p.m.

Baroness Blatch

moved Amendment No. 129: After Clause 195, insert the following new clause— "DRUGS AND ALCOHOL POLICIES (1) The governors of every maintained school shall determine the drugs and alcohol policy for that school. (2) A school's drugs and alcohol policy shall provide that where a head teacher takes disciplinary action against a pupil under the terms of the school's drugs and alcohol policy, the parent of the pupil concerned may appeal to that school's governing body. (3) No appeal shall be made under subsection (2) save on procedural grounds. (4) On such an appeal, the governing body may—

1. (a) confirm the head teacher's action,
2. (b) in the event of a procedural error on the part of the head teacher, invite the disciplinary case to be heard again, or
3. (c) direct the head teacher to take such other action as they consider appropriate in the circumstances.

(5) The head teacher shall comply with any directions of the governing body given under subsection (4)(b) or (c). (6) The governing body shall notify the appellant and the head teacher in writing of their decision on such an appeal. The noble Baroness said: My Lords, the amendment returns to drugs policy. It is designed to support those schools that are battling against the dreaded scourge of drug and alcohol abuse. The Government should do everything possible to endorse and support the incredibly difficult work of head teachers who are battling with this issue.

There is a great deal of anxiety, pain and anguish ahead of the point at which someone is excluded from school. I am not talking about frivolous exclusions. Where that happens, the merits of the decision should be supported. If there have been procedural breaches on the way and the decision has to be considered null and void on procedural grounds, rather than the case simply being thrown out and a serious drug and/or alcohol abuser returning to school, undermining the authority of the head, there should be an opportunity to reconsider the case.

Whichever Minister responded in Committee—I do not remember which—asked why we should make an exception for drug and alcohol abuse. What about violence? I am prepared to table an amendment to include violence. We have an excess of streetwise young people who are making life hell for some schools, particularly for teachers and head teachers. It is our duty to do as much as we can to support those schools that are really battling and trying to address the problem. I hope that the Government will be sympathetic to the amendment. I beg to move.

Baroness Ashton of Upholland

My Lords, I agree with the noble Baroness that drug and alcohol problems in schools are very important. I do not intend to repeat everything that I said in Committee, particularly in view of the lateness of the hour. I assure the noble Baroness that we are as concerned as she is to address problems of drug and alcohol misuse. That is why we have made it crystal clear that they have no place in our schools and we have spelt out a number of new measures to tackle the problem, including supporting a policy of zero tolerance for those caught supplying drugs within the school gates.

However, we do not believe that the amendment would help achieve our aims. We know from Ofsted that schools are already complying with current guidance to have in place drug education and drug-related incident policies agreed by governors and developed in consultation with staff, parents, pupils and police. These policies should include a clear message that the school does not tolerate the possession or use of unauthorised drugs and that such incidents will be dealt with promptly and firmly. I remain convinced that existing exclusion procedures are adequate to the task of dealing with disciplinary action taken in respect of drug and alcohol incidents.

We should continue to have truly independent appeals panels. When the noble Baroness, Lady Blatch, was a Minister, she defended the principle of an independent appeal for parents. I support her in that view. That is one reason why I am unable to support the amendment. What appeals panels do is of fundamental importance, not least because the first thing that they consider is whether a pupil is guilty of the offence with which he/she is charged. Because the amendment would allow appeals only on procedural grounds, it would deny the opportunity for an appeal on the fundamental ground that the pupil was not guilty of what he was charged with. That cannot be right.

Appeals panels must be free to make their own decision in the light of all the facts of the case, taking on board government guidance. The draft revised guidance on exclusions makes it clear that we would not expect an independent appeals panel to reinstate a child excluded for the supply of an illegal drug or the severe examples of misuse of an illegal drug.

Furthermore, by using the words "disciplinary action" and making no reference to exclusions in the amendment, the noble Baroness is in danger of creating enhanced rights of appeal for particular categories of pupils in breach of a school's behaviour and discipline policies. Currently, discipline committees review only the use of exclusions within school, not other forms of disciplinary action, where there is no right of appeal. I do not think that pupils disciplined for drugs and alcohol offences should have greater rights than those disciplined for other reasons, which this amendment would create.

We have implemented a wide range of practical measures to support schools and education authorities in building pupils' social and emotional competence and improving behaviour in schools. We believe that this will have a further positive effect in reducing both drug-related incidents in school and exclusions. As noble Lords will be aware, the £66 million made available through the Budget is linked to the national strategy to tackle street crime. It also supports our long-term strategy on behaviour improvement, based on the excellent practice already in place.

In the light of all I have said, I hope that the noble Baroness will agree to withdraw her amendment.

Baroness Blatch

My Lords, there are examples of the reinstatement of such people in our schools, which does undermine the authority of the head. I am sorry that the noble Baroness, even after my warning, used the argument of categories against my amendment. I did say that if she would like to name the categories, I would table an amendment at the next stage to include them. Violence, which she named at the previous stage, is certainly one of them. I should like to test the opinion of the House.

11.21 p.m.

On Question, Whether the said amendment (No. 129) shall be agreed to?

Their Lordships divided: Contents, 3; Not-Contents, 30.

Division No. 3
CONTENTS
Blatch, B.	Rotherwick, L. [Teller]
Miller of Hendon, B. [Teller]
NOT-CONTENTS
Acton, L.	Gould of Potternewton, B.
Andrews, B.	Grenfell, L.
Ashton of Upholland, B.	Grocott, L. [Teller]
Bassam of Brighton, L.	Hilton of Eggardon, B.
Blackstone, B.	Hollis of Heigham, B.
Carter, L.	Howells of St. Davids, B.
Chandos, V.	Macdonald of Tradeston, L.
Crawley, B.	McIntosh of Haringey, L. [Teller]
Davies of Oldham, L.
Desai, L.	Massey of Darwen, B.
Dubs, L.	Miller of Chilthorne Domer, B.
Farnington of Ribbleton, B.	Ramsay of Cartvale, B.
Gale, B.	Scotland of Asthal, B.
Golding, B.	Sharp of Guildford, B.
Gordon of Strathblane, L.	Simon, V.
	Walmsley, B.

Resolved in the negative, and amendment disagreed to accordingly.

11.31 p.m.

Baroness Blatch

moved Amendment No. 130: Before Clause 196, insert the following new clause— "CRIMINAL RECORD CHECKS ( ) Notwithstanding any other provision, no public authority shall make unreasonable demands of any governing body or head teacher of any school or nursery school to seek personal information from its staff or from visitors to the school, or make any unreasonable demands of any employee of a school or any visitor to a school, or the premises where the school or nursery school is situated, in the process of conducting checks for the purposes of child protection. ( ) In making such checks a public authority or school shall only request such information as is directly relevant to assessing the risk of an offence against children or which is essential for the purposes of identifying a particular individual. The noble Baroness said: My Lords, although this amendment was spoken to earlier, I was not allowed, under the rules, to respond. I wish to do so now. In her response, the Minister made much of List 99, but that list was never a problem for schools. It was a quick, swift and immediate check. The name and the relevant information were submitted and there was no delay in getting hack information about List 99. That list has now been subsumed with all of the other checks and we now have unbelievable bureaucracy, which is causing delay. The Minister touched on delay but said very little about the real problems associated with it, or about the timescale under which the particular targets that were set out in the documents would be achieved.

The Minister gave no response whatever in regard to the personal information required—bank account numbers, sort code numbers and other specific information—and she did not explain why it was essential to have that information. Only additional information appears on the form. Some say that it is voluntary and is additional only to help speed up the checks, but at least some county councils state that all sections of the form have to be answered. However, the form asks for a passport, which establishes identity.

The Minister said that bank account details were necessary to establish identity. They cannot possibly be. A passport, driving licence and birth certificate are all asked for on the form and all of them will confirm identity. Will the Minister give specific reasons why it is important to have details of one's bank account number, sort code number and one's mother's maiden name? That is interesting because the mother's maiden name is given to banks by many people in this country for security purposes. What possible use can that be to the CRB?

Again, when a person has been a governor for, say, two or three terms and he lives in the village and knows the school, and when it is known that CRB checks will be carried out on that person when he becomes a governor for, say, the third, fourth of fifth time, why is it necessary to carry out the checks again when he is reelected or reappointed? I have not received, but should like to have, satisfactory answers to those questions. I beg to move.

Lord Lucas

My Lords, it is important that, when we ask for a great deal of information from people who mostly have nothing whatever to declare, we restrict it to information which is absolutely necessary. I believe it is accepted that one goes through enough checks to establish one's identity when applying for a passport, and it should not be necessary for a great deal of intrusive and personal in formation to be included in that. One wonders what is going on when this Government wish to give all and sundry access to communications data. It seems that this is another example of the tendency to pry as closely as possible into people's lives at the slightest excuse. I believe that that should he discouraged.

Baroness Ashton of Upholland

My Lords, I shall be brief. I believed that I had dealt with all these issues. We are, of course, discussing the protection of children. As I indicated, the Criminal Records Bureau is clear that the information requested on the application form is needed in order to establish the applicant's identity beyond doubt. Therefore, it is necessary. The information in question is highly sensitive. We need to be absolutely certain that it is not issued to the wrong person and that a person cannot obtain a disclosure by using another person's identity. Therefore, the information is requested for that purpose—a purpose that I consider to be important because of the issue with which we are dealing. That is my understanding and I am very happy to reiterate it.

I have made it clear and explained that the Criminal Records Bureau has genuine difficulties. I have not attempted to make any apologies for that beyond saying that the bureau is working as hard as it can to ensure that these processes are resolved satisfactorily so that it can do its job effectively. I do not have information on the exact timetables because I am not responsible for the Criminal Records Bureau. I shall be very happy to ask for that information from my colleagues and to write to the noble Baroness, Lady Blatch, with the details. But, as I indicated, we have put arrangements in place to ensure as far as possible that schools are able to continue with their work and are not adversely affected.

Baroness Blatch

My Lords, the answer is still deficient. The noble Baroness continues to say that it is important to prove the identity of the person for whom the application is being made. A passport will give that information, as will a driving licence and a birth certificate. May I have a straight answer as to why the sort code, bank account name, account number and mother's maiden name are required in order to prove identity?

11.39 p.m.

On Question, Whether the said amendment (No. 130) shall be agreed to?

Their Lordships divided: Contents, 3; Not-Contents, 30.

Division No. 4
CONTENTS
Blatch, B.	Rotherwick, L. [Teller]
Miller of Hendon, B. [Teller]
NOT-CONTENTS
Acton, L.	Gould of Potternewton, B.
Andrews, B.	Grenfell, L.
Ashton of Upholland, B.	Grocott, L. [Teller]
Bassam of Brighton, L.	Hilton of Eggardon, B.
Blackstone, B.	Hollis of Heigham, B.
Carter, L.	Howells of St. Davids, B.
Chandos, V.	Macdonald of Tradeston, L.
Crawley, B.	McIntosh of Haringey, L. [Teller]
Davies of Oldham, L.
Desai, L.	Massey of Darwen, B.
Dubs, L.	Miller of Chilthorne Domer, B
Farrington of Ribbleton, B.	Ramsay of Cartvale, B.
Gale, B.	Scotland of Asthal, B.
Golding, B.	Sharp of Guildford, B.
Gordon of Strathblane, L.	Simon, V.
	Walmsley, B.

Resolved in the negative, and amendment disagreed to accordingly.

11.49 p.m.

Clause 199 [Application of Part 5 of Education Act 1996 to nursery education]:

Baroness Blatch

moved Amendment No. 131: Leave out Clause 199. The noble Baroness said: My Lords, this is an important amendment. Section 410 of the 1996 Act exempts nursery schools from the provisions of Part 5 of that Act. If the noble Baroness will answer this question, not having answered my previous one, we shall hear the reason why. Part 5 of that Act comprises many pages, from which I shall read a small selection, remembering that we are discussing nursery schools, not mainstream schools, such as primary and secondary schools, or even further education.

It covers subjects such as dealing with the national curriculum, core subjects and foundation subjects, development work and experiments, procedure for making certain orders and regulations, programmes for research, general functions of local education authorities, governing bodies and head teachers in relation to curriculum, agreed syllabuses of religious education, constitution of advisory councils, functions of advisory councils, advisory councils: supplementary provisions, duty to constitute new standing advisory councils, religious education: access to meetings and documents, no requirement of attendance at Sunday schools, courses leading to external qualifications, obligation to enter pupils for public examinations, sex education and the manner of provision, sex education: statement of policy, exemptions from sex education, politics and indoctrination, duty to secure balanced treatment of political issues, provision of information, complaints and enforcement, county voluntary and maintained special schools. I could go on and on.

There must be a good reason why Part 5 of that Act should be applied to nursery schools. I have already spoken in support of nursery schools, which are absolutely overwhelmed and burdened with new requirements to provide information, to respond to documents and to provide information for inspection. The whole of Part 5 is now to apply to nursery schools. It would be useful to know why. I beg to move.

Lord Lucas

My Lords, Clause 199 appears to have some strange implications. Collective worship would appear to become compulsory in nursery schools. They will have to make statements of sex education policy. Has that really been considered in detail? I can understand why some provisions of Part 5 now have to be applied to nursery schools, or the foundation stage of the curriculum could not work correctly. But I really do not understand why the Government want to bring those other aspects of school education into nursery schools.

Baroness Ashton of Upholland

My Lords, as the noble Baroness, Lady Blatch, said, Clause 199 repeals Section 410 of the Education Act 1996, which provides that Part 5 of that Act does not apply to nursery schools or nursery classes. Chapters 1 and 2 of Part 5 deal with the national curriculum, which is repealed and re-enacted by the Bill.

In the 1996 Act, the national curriculum was for children from compulsory school age. The introduction of the foundation stage in the Bill extends the national curriculum to include children below compulsory school age, including those in nursery schools and nursery classes. Because we are repealing and re-enacting the relevant parts of Part 5 of the 1996 Act, we in any case need to repeal Section 410 of the 1996 Act. But we do not want to re-enact the blanket exclusion that it created, because we want to enable the foundation stage as part of the national curriculum to apply to those settings.

As noble Lords will be aware, the foundation stage has been warmly welcomed by those working in early education settings including nursery classes and nursery schools. During the year in which I have been a Minister, I have never heard someone in a primary school or nursery setting say anything other than how much they value the foundation stage. I should again reassure noble Lords that there are no plans to change the flexible and effective approach to early learning set out in the joint DfES and QCA publication, Curriculum Guidance for the Foundation Stage.

It is important that early learning experiences are of good quality and contribute positively to learning. The foundation stage guidance sets out the core principles for that. It explains that learning activities should be appropriate to the age and stage of development of the children in the early years setting. The guidance emphasises the crucial role of the early years practitioner in using well planned play as a key way in which children will learn with enjoyment. I am sure that noble Lords will agree with that.

The issue of collective worship is a good example of what we are discussing. Because of Section 410 of the 1996 Act, the collective worship provision in Chapter III of Part V did not apply to a nursery class at a primary school. The School Standards and Framework Act 1998 does not prevent the provisions from applying. The effect of Section 70 of that Act is that children in a nursery class at a primary school must take part in the act of collective worship, although children at a maintained nursery school do not have to. That has been the law since 1998. It might appear anomalous, but children in a nursery class should not be treated differently from the rest of the school, of which they are a key part. We have not changed that position with this Bill.

I hope that, with those assurances, the noble Baroness will feel able to withdraw the amendment.

Baroness Blatch

My Lords, the Minister has ignored all the other aspects of Part V of the 1996 Act. There is a mass of provisions in Part V, and all that this Bill states is that the exemption from Part V shall cease to have effect. So Part V has an effect on nursery schools. I read out a selected list of the things that I believe do not apply to nursery schools. It would be useful to know what elements of Part V will now apply.

The Minister referred to the foundation stage. I am not against the foundation stage. With a little drafting experience, one could find a way of putting in the Bill a provision for producing a foundation stage for children of nursery school age without taking the whole of Part V and applying it to nursery education.

How much of this is compulsory? Nursery school children are not of compulsory school age. Are we lowering the age of compulsory schooling to include nursery school children? Is it now the case that children who attend nursery school must enjoy—or endure, depending on the parents and the children— compulsory provision? It would be helpful to know what is compulsory and how much of Part V will apply to nursery education.

Baroness Ashton of Upholland

My Lords, I want again to offer my reassurances that we do not intend to change the way in which nursery education is provided, either by not re-enacting Section 410 or through the terms of Clause 152 of this Bill. I know that many noble Lords are concerned about the potential that children will be pushed into an over-formal approach to learning when they are too young, particularly if they are in a primary school environment.

Clause 152 is simply about definitions, not about the institutions in which children learn. Nor does it change the curriculum in respect of which the guidance on the foundation stage has been so well received. Sex education, of course, applies to secondary schools and not to the provision that we are describing here. Nursery education has always been a subset of the definition of primary education. We have tried to make the distinctive nature of that stage much clearer, particularly, for example, the fact that it is normally provided part-time. Noble Lords will be aware that the existing definitions refer to full-time education for pupils below the age of ten and a half.

The Bill introduces a more distinct definition of nursery education that recognises the practice in nursery schools of offering children either a morning or an afternoon session and the fact that the nursery phase of primary education is intended for children between the age of two and compulsory school age. We seek to develop legislation to reflect practice. We also intend to introduce greater clarity and distinctiveness to legislation that bears on that important phase of children's education and development.

We are concerned with the foundation stage and with making sure that we have enacted in legislation what we are doing and what we consider to be important for the children. We are not attempting to provide an over-formal curriculum or bringing in extraneous matters. We are concerned with the issues that I have raised. If I have been unable to clarify things for the noble Baroness, I am, as she is aware, always willing to write to her and make sure that I lay things out in a manner that will make it easier for her to understand. I hope that, on that basis, the noble Baroness will be able to withdraw the amendment.

Midnight

Baroness Blatch

My Lords, I would like to take up the noble Baroness's offer to write to me. She has not addressed the compulsory nature of the provisions. My understanding is that Section 4(10) of Part 5 of the 1996 Act applies to all mainstream education but that nursery education is exempt. The Bill regards that exemption as ceasing to have effect. Therefore, Part 5 applies to nursery education. If the only effect of Section 4(10) was to allow for the introduction of a foundation stage for nursery education, I cannot see why there could not have been a clause in the Bill to provide a foundation course for nursery education and to link it with some of the provisions in Clauses 74, 75 and 76.

This seems a strange way to do it. Many aspects of Part 5 of the 1996 Act bear no relationship to nursery education. It does not even contain a foundation curriculum. That would have to be inserted into Part 5 to have the effect of which the noble Baroness speaks. The provision is unsatisfactory and I hope that a letter will clear the air for me and clarify the points on which I have concerns. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch

moved Amendment No. 132: After Clause 200, insert the following new clause— "NUISANCE OR DISTURBANCE OFF EDUCATIONAL PREMISES Where a pupil or pupils of a foundation or voluntary aided school, who are clearly identifiable as being pupils of that school, are guilty of committing an offence, or cause nuisance or disturbance in a public place or behave in a manner offensive to a reasonable member of the public, the head teacher of the school shall have full authority to apply the disciplinary code of the school to the pupil or pupils, even if the offence, nuisance or disturbance is committed outside school premises or outside school hours. The noble Baroness said: My Lords, the amendment addresses an important issue for maintained schools. It allows the head teacher to take disciplinary action against any pupil or pupils who have committed an offence, or caused a nuisance in a public place, if the child can be identified as being of a particular school.

I know I went to school a million years ago, but it was commonplace that if you brought your school into disrepute outside the school by behaving badly, when you arrived the next morning the school would take disciplinary action against you. Not only would disciplinary action be taken at home but the school also would take a dim view.

We are constantly wringing our hands in this Chamber about what we are going to do about disaffected youth and increasing incidents of poor behaviour in the classroom. The amendment gives us the opportunity of another shot in the armoury for schools to deal with such problems. I beg to move.

Baroness Ashton of Upholland

My Lords, a head teacher of any maintained school, including foundation or voluntary aided schools may already—as the noble Baroness referred to from her own experience as a young person—take disciplinary action against a pupil for behaviour that occurs outside school premises if there is a clear link between the misconduct in question and the promotion of good behaviour and discipline on the part of the school's pupils.

This will be a matter of judgment for the head teacher, who will take into account the likely impact of the misconduct on the life of the school. The same discretion also applies where the incident takes place on the school's premises outside school hours. To that extent the amendment is unnecessary.

The revised draft guidance on school exclusions makes it clear that where a school-related incident is also subject to a police investigation which may result in criminal prosecution proceedings, the head teacher may exclude the pupil in question. In those circumstances, before excluding, the head teacher must take into account a number of factors: first, the seriousness of the allegation made against the pupil by another pupil or member of staff at the school; secondly, whether the allegation may result in criminal proceedings being brought; and finally whether, pending the outcome of any criminal proceedings, the pupil's presence in school is likely to have an adverse effect on the complainant and other potential witnesses and on the promotion of good order and discipline generally.

It is important that there are checks on the head teacher's discretion as it would be entirely inappropriate for the head teacher to take such action unless he or she was satisfied of the seriousness of the impact of the alleged offence on the school.

Regardless of whether criminal proceedings result, in all cases where a pupil's action was entirely unconnected with the school, we consider it to be both undesirable and unreasonable to expect the head teacher to take disciplinary action.

Generally speaking, at times when a school does not have charge of its pupils outside school hours and off the school premises, it will not have a general duty either to its pupils or anyone else to police pupils' activities. That is rightly principally the duty of the children's parents and, where criminal offences are concerned, the police.

I would be cautious about raising expectations that a school should continue to have general disciplinary responsibility for a pupil when he is not within the school's control other than in the limited circumstances identified by the Court of Appeal in the Bradford Smart case; for example, if it were reasonable for a teacher to intervene if he saw one pupil attacking another near the school gates. It will also clearly extend further afield if the pupils are on a school trip, educational, recreational or sporting.

However, there should be no opportunity for parents in particular to rely on a school to take action to avoid their own responsibility for their child's discipline. Furthermore, where there are already laws and law enforcers in existence to deal with anti-social behaviour in public, it does not seem necessary also to make pupils, already subject to those laws, the responsibility of the school in the circumstances where the school would not otherwise be involved. If a school were to be expected to take action in such circumstances, it would also be a burden and impractical for it to investigate a complaint of misbehaviour, irrespective of where or when it was alleged to have occurred.

Perhaps I may repeat the point with which I began. The head teacher of any maintained school may already take disciplinary action against a pupil for behaviour that occurs outside the school premises if there is a clear link between the misconduct in question and the promotion of good behaviour and discipline on the part of a school's pupils.

For the reasons I have given, I hope that the noble Baroness will feel able to withdraw her amendments.

Baroness Blatch

My Lords, I find it difficult to understand how one establishes a clear link. Let me give two examples. The first is of a child in school uniform away from the school's buildings being very rude to an old person: not sufficiently rude as to require a policeman to take criminal charges against a child. Would the fact that the child was recognisable as a child of that school be a link with the school? The second example is of a child out of uniform but identifiable as belonging to a particular school behaving in a similar way and causing a nuisance or disturbance, but which fell short of being a criminal offence but was nevertheless regarded as a real nuisance. I am not sure what the Minister means by establishing a link.

The Minister referred to parents and I have to agree with her on one point. She said that parents have a responsibility, but, sadly, many parents either collude with their children or have no interest in their children's behaviour. Their children are out at all hours and are committing offences and causing nuisance. The parents turn a blind eye to all of that. Again, if the school is being bought into disrepute, and if the school takes that seriously, is it not understandable that the school would want to consider excluding such a child or at least consider the situation the following day in school? The complainant might be the old lady who was being harassed by a child, so should not the school take that seriously and lake action?

The noble Baroness was speaking about the serious end of behaviour, but I am talking about the community nuisance, disturbance, offensive behaviour which falls short of criminal behaviour. If it is criminal behaviour, there is another remedy, but if it is not, the school and the parents should be allowed to act. The Minister seems to believe that a link should be established, but I do not know what a link is. It would be helpful to know whether in the examples I have given a link would be established and in what way.

Baroness Ashton of Upholland

My Lords, I mean the noble Baroness no disrespect by not responding. It is in part through my understanding of the procedures of the House on Report.

I sought to indicate that the head teacher can indeed do the things for which the noble Baroness asks. It is for the head teacher to consider the likely impact on the life of the school. If the head teacher believes that the attitude and behaviour of a pupil, perhaps on his way home from school wearing the school uniform, was relevant to that consideration he or she could take disciplinary action.

Schools are not acting in loco parentis in that context. On a Saturday or Sunday the school is closed and the teachers are nowhere near it. The child is wearing jeans and a T-shirt and is operating well within the jurisdiction of the parent but not of the school. I do not believe that it is the job of our schools to be entirely responsible for the behaviour of the children. But where the head teacher believes there to be a link—it is a matter oldiscretion—the head teacher can act.

Baroness Blatch

My Lords, I am grateful for that. There is considerable discretion for the school. The link is a matter for the head teacher to decide and that head teacher would be supported. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 20 [Nuisance or disturbance on educational premises]:

Baroness Blatch

moved Amendment No. 133: Page 189, line 8, at end insert— (ac) any nursery school The noble Baroness said: My Lords, under Schedule 20 schools have a protection against a person who without authority causes or permits nuisance or disturbance to the annoyance of persons who lawfully use the premises. I see no reason why nursery schools should not be included.

Section 547 of the Education Act 1996 is amended by Schedule 20 of the Bill. Section 547 relates to nuisance or disturbance on educational premises caused by any person who is present without authority. Such persons would be guilty of an offence and liable on summary conviction to a fine. But this protection does not appear to be enjoyed by nursery schools.

I have taken the trouble to rewrite Section 547 with all the amendments set out in Schedule 20. Where all other schools are named, it makes eminent sense to include nursery schools. I note that there is a reference to grant-maintained schools although they do not exist. That does not appear to have been amended. I hope that the Minister will agree that if other schools are protected from this kind of unruly, unattractive and in some cases threatening behaviour, a nursery school is as deserving of protection as a primary school, secondary school, or any other school. I beg to move.

Baroness Ashton of Upholland

My Lords, in this part of the Bill, we are extending the existing provisions in Section 547 of the Education Act 1996 regarding nuisance or disturbance on educational premises. Maintained nursery schools are already covered by the existing provisions and independent schools providing nursery education will he included under Schedule 20. We are extending these provisions to independent schools and to all institutions in the further education sector in direct response to their requests to do so.

We have not been pressed to extend the provisions to the private nursery sector. It is not our intention to extend the offence to a wider range of early years day care provision in the private sector. Therefore, I do not believe that the amendment to extend the provision to all nursery schools is necessary.

However, I understand the point about extending the provision to private nursery schools. I should be willing to take the matter forward for further consideration. There are some major issues to be resolved. There would need to be a clear definition of a private nursery school on which to base an amendment so that the police and courts were able to distinguish between those private establishments providing nursery education and, for example, those simply providing day care facilities. No such definition exists. We do not think it reasonable to extend the offence to day care provision mainly because it includes a wide range of provision—much wider than private nursery schools offering education. We shall want to consult with the police, who will be affected by any changes, and, most importantly, the private nursery sector.

On that basis, I hope that the noble Baroness will feel able to withdraw the amendment. If she is looking for me to have those discussions with the private nursery sector, I am more than happy to do so.

12.15 a.m.

Baroness Blatch

My Lords, it is odd that although a number of schools are listed, nursery schools are not mentioned. For example, voluntary-aided, foundation and special schools are listed. I shall not read out the whole of new Section 547 as amended by Schedule 20, but certainly reference is made to independent schools and so forth.

A mention of nursery schools would be extremely helpful here. The nursery school sector thinks that it has been left out of these provisions. It would be helpful to know whether nursery schools have been subsumed. In new subsection (2A) there is a reference to, provided by a local education authority under section 508". I do not have that section to hand. Would nursery schools be encompassed within that section of the Act?

Baroness Ashton of Upholland

My Lords, I am afraid that I shall have to write to the noble Baroness to clarify that point. I have checked it, but at this hour I simply cannot recall the specific reference. Nursery schools are already covered by the existing provisions, but I shall write to the noble Baroness to explain precisely where.

I take the point made by the noble Baroness that if the nursery school sector is unclear about the position, then we need to rectify that. I can confirm that it is covered under the provisions of the Bill, as we would wish it to be.

Baroness Blatch

My Lords, it would be helpful to receive confirmation that the sector is covered. I should like to respond to those who have contacted me with a proper reference, quoting the chapter and verse of the position. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 134 and 135 not moved.]

Baroness Blatch

had given notice of her intention to move Amendment No. 136: Before Clause 204, insert the following new clause— "SAFEGUARDING PROVISION FOR SPECIAL NEEDS Nothing shall be done under this Act to the disadvantage of any provision in respect of special educational needs under this or any other enactment. The noble Baroness said: My Lords, I shall not move this amendment. Although the Government have brought forward welcome amendments. I still believe that there is a lacuna in the Bill with regard to the protection of children with special educational needs. I am discussing the matter with the noble Baroness, Lady Darcy de Knayth, who in turn is in discussions with the department. We seek rather more watertight protection for children with special educational needs. As I have said, I shall not move the amendment today and I shall return to the matter at Third Reading.

[Amendment No. 136 not moved.]

Clause 206 [General interpretation]:

Baroness Ashton of Upholland

moved Amendment No. 137: Page 126, line 2, after "Part" insert "section (Duties of LEAs and governing bodies in relation to welfare of children) On Question, amendment agreed to.

Baroness Ashton of Upholland

moved Amendment No. 138: Page 126, line 2, after "Part" insert "section (Consultation with pupils) On Question, amendment agreed to.

Clause 210 [Commencement]:

Baroness Ashton of Upholland

moved Amendment No. 139: Page 127, line 23, after "126" insert "and Schedule 11 The noble Baroness said: My Lords, in moving Amendment No. 139 I wish to speak also to Amendments Nos. 140 and 141. Amendment No. 139 is entirely technical.

Schedule 11 was omitted from the commencement provision of the Bill. Without this amendment, the procedure for commencing the Bill would be in some doubt. The amendment simply corrects that omission.

Amendments Nos. 140 and 141 are also technical, consequential amendments. They correct cross-references which due to repeals in the Bill would become meaningless on its commencement. Under Amendment No. 140, Schedule 11 to the School Standards and Framework Act 1998 is to be repealed. So, regulations under paragraph 6 of that schedule are to be replaced by regulations under Clause 18 of the Bill. In Amendment No. 141, Section 44 of the 1998 Act is to be repealed and replaced, with amendments, by Clause 33 of the Bill.

The amendments ensure that references in existing legislation to provisions which will be repealed by this Bill are substituted by references to their replacement provisions in the Bill. I beg to move.

On Question, amendment agreed to.

Schedule 21 [Minor and consequential amendments]:

Baroness Ashton of Upholland

moved Amendments Nos. 140 and 141: Page 206, line 26, at end insert— 100A In section 50 of the School Standards and Framework Act 1998 (effect of financial delegation), in subsection (5) for the words from "under paragraph 6" onwards there is substituted "under section 18 of the Education Act 2002 (or, in the case of temporary governors of a new school, regulations under section 33(5) of that Act)." Page 207, line 2, at end insert— 104A In section 72 of the School Standards and Framework Act 1998 (further provisions relating to new schools), in subsection (3)(a) for "section 44" there is substituted "section 33 of the Education Act 2002". On Question, amendments agreed to.

Schedule 22 [Repeals]:

Baroness Ashton of Upholland

moved Amendment No. 142: Page 216, line 46, column 2, leave out "Section 86(6)" and insert— Section 86(3)(b) and (6). Section 91.

On Question, amendment agreed to.

House adjourned at nineteen minutes past midnight.