HL Deb 17 September 2003 vol 652 cc950-79

5.34 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (The Countess of Mar) in the Chair.]

Clause 19 [Parenting contracts in cases of exclusion from school or truancy]:

Lord Hylton

moved Amendment No. 84: Page 17. line 36, after "parent" insert "or both parents The noble Lord said: In moving Amendment No. 84, I shall speak also to 10 amendments in the same group, on behalf of my noble friend Lord Northbourne. He apologises for not having been in his place, through inadvertence, to move Amendment No. 75 last week and for being overseas this week.

The whole group of amendments attempts to clarify the Government's intentions about the meaning of the two words "a parent" in this part of the Bill. It also seeks to make the Bill clearer and easier for ordinary people to understand. It is difficult for a non-lawyer to understand that "a parent" can, and does, include both parents. It is ordinary people whose lives will be affected by the Bill. It therefore needs to be comprehensible to them, as well as to the practitioners who will have to administer it, and who may not have legal training.

Amendment No. 84 and the other amendments in the group, except Amendments Nos. 108 and 144, are designed to make clear beyond doubt that this part of the Bill should apply, not only to one parent acting alone, but to two or more persons acting together, if each falls into one of the categories of persons who qualify as parents for the purposes of this part of the Bill. It is particularly important to avoid any misunderstanding on that point because, where two parents are available, it is often the case that both working together can be more effective in helping the child than either working alone.

Amendment No. 144 attempts to define the categories of person who may qualify as "a parent" for the purposes of the Bill. The noble Baroness, Lady Scotland of Asthal, has written to my noble friend Lord Northbourne a most helpful letter, for which he asked me to express his thanks. It indicates that, for the purposes of the Bill, the definition of "parent" will be the same as in the Education Act 1996, the Crime and Disorder Act 1998 and the Family Law Act 1987. However, the definition of "parent" in those three Acts is not exactly the same. Am I correct in assuming that the Government's intention is that any class of person mentioned in those Acts will qualify as "a parent" for the purposes of the Bill?

Amendment No. 144 as drafted is intended to be probing. It includes some classes of person to test whether the Government intend to include them or not. My noble friend who drafted the amendment is particularly interested in the status, in this matter, of stepfathers and stepmothers, and also of persons living in the home of the child as a partner of a parent of the child. In a society that prides itself on having an increasing number of "flexible families", it is important that the Government should make clear what, if any, are the responsibilities of cohabiting partners in families with children.

Amendment No. 108 addresses the fact that a relatively high proportion of young people who display anti-social behaviour have fathers who are either violent or have left the family home. In cases where practitioners or the court identify that the behaviour of the child's father is contributing to the child's behaviour, it is important that the father should not be able to avoid facing up to the consequences of his actions or omissions simply because he is more difficult to contact than the mother. This amendment encourages the court at least to make the father come to court and listen. I beg to move.

Baroness Scotland of Asthal

I very much understand and appreciate the sentiments that have just been expressed by the noble Lord, Lord Hylton, especially those on behalf of the noble Lord, Lord Northbourne, who has had a long-standing interest in this issue. I am very sympathetic to the intention behind these amendments and share the noble Lord's concerns about the "dad deficit" about which he spoke so passionately and so well at Second Reading. I should like to provide a strong reassurance that the Government also believe that engaging both parents, where appropriate, is extremely important in improving their child's school attendance or behaviour in or outside school. The relevant clauses of the Bill have been drafted to ensure that that is possible.

Who is approached and whether one or both parents will be involved depends on an assessment of the child and the child's family circumstances carried out on behalf of either party considering arranging a parenting contract or applying for a parenting order. This assessment should enable practitioners to respond effectively to the particular circumstances of the case. The noble Lord, Lord Hylton, is quite right in saying that those circumstances can vary materially. Both parents would be involved if there is any benefit. We will consider further whether to make this assessment in guidance. In practice, we expect that LEAs, schools and youth offending teams will focus efforts and resources primarily towards parents who have some involvement with the child and are therefore in a position to influence the child's behaviour.

When applying for a parenting order under Part 3 of the Bill, the application will name the parent or parents it is asking the court to consider making the subject of a parenting order. Local education authorities and youth offending teams will put a recommendation to the courts based on the assessment of the circumstances. Guidance on the existing Crime and Disorder Act provisions already requires both parents to he considered for an order. Furthermore, courts already have the power to enforce parental attendance in court if they feel it is appropriate.

As the noble Lord said, engaging fathers can be a real problem, but this is a matter to be dealt with by practitioners who know the individual family circumstances of the children they are supporting. The existing provisions of the Bill are sufficient to ensure the appropriate involvement of both parents. I therefore ask the noble Lord not to press his amendments.

I reassure him that the definitions and statutes to which he alluded all represent descriptions of what a parent can be, all of which will be captured by our definition of parent. The noble Lord is right: parents now come in many forms and can be birth parents, step parents and, sometimes, partners who are the de facto parent of the child and who may have parental responsibility in relation to the child. All of them, if appropriate, can be captured by the Bill.

Baroness Sharp of Guildford

I was about to stand up when the Minister stood up and therefore did not get to say that I have some sympathy with the amendments in the names of the noble Lords, Lord Hylton and Lord Northbourne. We are returning to an issue that we have debated before, both in this Bill and others—the legal phraseology that is accepted does not actually cover the common sense meaning. I have some sympathy with the point of view put forward by the noble Lord, Hylton, that it would be quite nice if our legal language followed our common sense language.

Lord Hylton

I am grateful to the Minister for the sympathy that she expressed and I very much welcome what she said about both parents being involved in parenting orders or being called to court. I am also grateful for what she said about the variety of people who find themselves in loco parentis. That was very helpful. I also welcome the guidance that will be forthcoming on these matters. My noble friend and I will study the reply with care, but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 85 to 95 not moved.]

Lord Dixon-Smith

moved Amendment No. 96: Page 18, line 13, leave out subsection (8) The noble Lord said: The purpose of this amendment is to leave out certain words about parenting contracts. The Bill itself states: A parenting contract does not create any obligations in respect of whose breach any liability arises in contract or in tort". We want to explore exactly what that might mean. If a parenting contract is not a serious contract and if parents are in breach of their contracts when, to be frank, they are being rather foolish and it might actually cost them, the contract is not worth the paper it is written on. We are dealing with difficult parents who need help. It seems to me that the purpose of a parenting contract is that the education authority, through the school, accepts obligations to assist. The parents accept obligations to take up that assistance and, most important, to get their children to school or improve their behaviour. That has to be a serious contract.

I accept that a, liability … in contract or in tort", may well be a financial liability in which one party sues another. It may therefore have very restricted legal meaning: I am not a lawyer.

I seek assurance from the Minister that these contracts are serious and that the consequences of either side breaching them—even though they may not give rise to a suit for damages—are none the less serious and will have serious implications for either side should there be a failure. It may be that I am revealing my ignorance in pressing this amendment in this way, but it is psychologically important for us to have an explanation on the record for anybody who wants to study the meaning of these contracts. I beg to move.

Baroness Sharp of Guildford

I rise to speak to Amendments Nos. 109, 112 and 138 and to say a few words about Amendment. No. 96 as well.

My understanding of subsection (8) of Clause 19 is that it specifically seeks to exempt a parent who fails to meet his or her obligations under a parenting contract from any form of legal proceedings; namely, it reinforces the voluntary nature of the parenting contract. I shall be interested to hear what the Minister says on that point, because the voluntary nature of that parenting contract is one on which we on these Benches place a great deal of emphasis. We recognise the difference between the voluntary nature of the parenting contracts as distinct from the parenting order that is not voluntary and is imposed through the courts.

If the Committee will permit it, I shall group Amendment No. 137 with these amendments. It should have been grouped with them, and I missed the fact that it was not. I should have picked that up earlier; I apologise.

Amendments Nos. 109 and 137 would make the voluntary nature of the parenting contract doubly clear by removing the parent's record under any parenting contract from the consideration of a court that is deciding whether to impose a parenting order, which is compulsory. In that respect, the fact that a parent was asked to sign a voluntary contract and refused to do so should be irrelevant. If it is not, what should be a voluntary contract will be tinged with compulsion. In other words, someone who does not sign will have a parenting order forced on them. The key issue is that the court should approach the question with an open mind. If it does not, we will immediately shift parenting contracts from being purely voluntary to having an element of compulsion. We are concerned about that issue.

We are also concerned about the potential for interference with the right to respect for family and private life, set out in Article 8 of the European Convention on Human Rights. The clause engages particularly with the imposition of legally binding sanctions. The Joint Committee on Human Rights has highlighted the matter. It said: in our view, the imposition of requirements on parents under a parenting order would certainly engage the right to respect for private and family life". In effect, the Bill makes parenting orders freestanding. The only condition on the court is that it should be satisfied that, making the order would be desirable in the interests of improving the behaviour of the pupil in the case of an LEA application, or that the child has, engaged in criminal conduct or anti-social behaviour, and that making the order would be desirable in the interests of preventing the child or young person from engaging in further criminal conduct or anti-social behaviour". There is a significant difference between the granting of a parenting order under existing provisions and granting one under those proposed in the Bill in respect of the fact that the court must make a judgment about the nature of the offence for which the parenting order is made.

Amendments Nos. 112 and 138 relate to a slightly different issue: the penalties imposed by the court. As I understand it, the current position is that a parenting order can be made under Section 8 of the Crime and Disorder Act 1998 only in relation to court proceedings in which a child safety order, anti-social behaviour order or sex offender order is made in respect of a child or young person or a child or young person is convicted of an offence or a young person is convicted of an offence under Section 443 of the Education Act 1996. The Bill deletes the connection between the making of the parenting order and a related court process by giving powers to local authorities and youth offending teams to apply directly to magistrates' courts for a parenting order. The only condition on the court is that it should be satisfied that, making the order would be desirable in the interests of improving, the behaviour", of the child. Clauses 21(3) and 27(3) make it clear that subsections (3) to (7) of Section 9 of the Crime and Disorder Act apply. Subsection (7) stipulates that the penalty can he high as £1,000, which makes a breach a criminal act. We seek to eliminate subsection (7) and leave it at subsections (3) to (6) because we wish to eliminate the element of penalty and ensure that the breach of a parenting order in respect of criminal conduct and anti-social behaviour does not become a criminal offence.

Baroness Scotland of Asthal

It may be helpful in responding appropriately to the comments of the noble Lord, Lord Dixon-Smith, and the noble Baroness, Lady Sharp of Guildford, if I say a word or two about how the two subjects fit together, so that we do not conflate them.

We envisage a continuum of measures intended to procure the engagement of parents when their children's behaviour causes concern. At one end of the scale, there is a wide range of voluntary involvement that parents have with schools and LEAs. We hope and expect that that will be the most effective approach with the vast majority of parents. At the other end of the scale are parenting orders for parents who refuse to engage and whose children's behaviour is causing the greatest concern. Parenting contracts are designed to sit between the two as a vehicle for engagement that, although voluntary and, hence, with no direct implications for failure to comply, sends a strong signal that action is needed and that more serious consequences are a distinct possibility. With regard to that bridge, it is important to remember that the alternative will sometimes be to go directly to a parenting order without passing through any other stage.

Amendment No. 96 would make it possible for legal proceedings to be pursued if a parent failed to comply with the requirements of a parenting contract made in the case of exclusion from school or truancy. Introducing legal proceedings would contradict our aim for parenting contracts. A parenting contract is a measure voluntarily entered into and designed to achieve a change in behaviour, in the spirit of co-operation. It is an opportunity for parents to engage with LEAs or schools without direct legal threat and with the minimum bureaucracy. That does not mean that, if there were a failure to take that opportunity, the evidential basis would not be used in proceedings.

In speaking to Amendment No. 137, the noble Baroness, Lady Sharp of Guildford, said that if the contract was voluntary, no reference should be made to it in any court proceedings thereafter. I have two things to say about that. First, the point of having the intermediate step is to make parents understand that a serious change is sought and that there will be consequences, if they agree to enter into the arrangement and do not comply. Conversely, the parents will be able to rely on the fact that they willingly engaged in a contract. If it is their case that any failure was the result of non-compliance by the LEA or the school, the parents can pray in aid the fact that they willingly entered into the contract.

On the other hand, it would be realistic for us to acknowledge that, if the provision did not exist, the authorities would, in any event, be entitled to call evidence about co-operation or lack of co-operation by the parents, in order to prove their case that a parenting order was necessary. We think that it is a helpful highlight for both parties; that is, that their behaviour in relation to how they pursued their agreement could be relied upon when the matter came before the court.

Amendment No. 109 would remove the requirement that courts should consider any previous refusal to enter into or failure to comply with the parenting contract in deciding whether to impose a parenting order in cases of exclusion from school.

Parenting is challenging; we recognise that. Parenting contracts will allow parents to access support through a formal arrangement where they can expect the school or LEA to work with them to improve their child's behaviour or attendance. We would prefer it if parents were engaged via this route. However, we remain convinced that should an application for a parenting order become necessary, there must be some recognition by the court of a parent's behaviour during the contract process.

That is not to say that failure to meet the terms of the contract will automatically lead to an order. It will still be for the LEA to decide whether an application for an order is an appropriate next step. As I have already indicated, the court will be required to take into account all the evidence.

Amendments Nos. 112 and 138 relate to Clauses 21 and 27. They would remove the penalty, available on conviction, for failing to comply, without reasonable excuse, with requirements included in the parenting orders or specified in directions given by the responsible officer. In other words, the amendments would remove the teeth from the parenting order provisions. If made, there would be no consequence for a parent who refused to meet the requirements of an order. We do not think that that is right.

Parenting orders will not be sought lightly. In serious cases, where the parent is influencing—or failing to influence— the behaviour of their child so severely that it is resulting in that child's exclusion or that child becoming known to the youth offending team, and where they are refusing to operate voluntarily, it must be right for the parent to be made aware of the seriousness of their actions and to have the opportunity to do something to change them. The parenting order is such a mechanism, but without the possibility of genuine consequences for noncompliance, a parenting order would cease to be a credible sanction. I therefore hope that the noble Lord and the noble Baroness will not press their amendments.

6 p.m.

Baroness Carnegy of Lour

I have not contributed to the discussions on the Bill before. I hope that Members of the Committee will forgive me for asking a question now, but I am extremely interested in this particular proposal. I think that I am right in saying that in California everyone signs a contract when they send a child to school. That seems a very good idea. Asking for a contract to be signed only when their children are in trouble indicates to parents that it is not something that everyone should do; it happens only when there is trouble.

Have the Government considered that it might be better to take the voluntary contract out of the legal process and place it into normal education procedure? Thus, an obligation would be created for everyone. A voluntary contract, which can be used as evidence that a parent is trying to comply, seems to be unfair on everyone else. Have the Government considered a contract for the parents of everyone who goes to school? I see that the noble Baroness has her colleague from the Department for Education and Skills beside her, so she should be able to tell me. It is interesting that a parenting order is being used as part of the legal process, which I find quite strange.

Baroness Scotland of Asthal

As Members of the Committee will have noticed, I have help from everywhere. I shall try to explain the process clearly. The noble Baroness is right about California and, indeed, many other places where a contract is signed when anyone goes to school. However, I reassure the noble Baroness that we have similar provisions. On entry to school, many schools have a contact that parents, children and the school sign, which states the behaviour expected from the parents, the behaviour expected from the child, and matters of that type.

We are introducing the parenting contract, as specified in the Bill, to target those parents who are not complying with the generality of good behaviour. More specifically, their children are suffering disadvantage by virtue of not coming to school properly, if at all, and are being excluded. This is a way of re-engaging those parents who fall within that category in a more direct and structured way.

Baroness Carnegy of Lour

I do not want to take up the Committee's time, but I think that the noble Baroness has highlighted my point. Supposing a child was in a school where the parents had already signed a contract. Now they would be signing another one. Would that mean anything? That illustrates my point. For these parents, it would be strange to find themselves promising again to do all those things just because they are in trouble. I do not want to hold up the Committee's time, but. I am grateful to the Minister for explaining the contract in relation to the whole process. If we think that a contract is useful in these circumstances, it might be a good idea if it is compulsory in all schools.

Baroness Scotland of Asthal

We are trying to enhance good practice. The noble Baroness is right to say that there is a different job of work almost that needs to be done in relation to these parents. The noble Baroness should know that it will be put in the context of a school and maybe the LEA, already working in a very targeted and focused way with these particular parents, to deal with identified problems that have arisen with the children.

In terms of the contract, this is an opportunity to do something about the problems. If the parents choose not to take advantage of an opportunity to enter into a contract, it will be for the LEA and/or the school to consider what further or other steps might have to be taken in order to persuade them to do their duty. One of those steps might be a parenting order, which has more teeth in terms of obliging parents to comply. That is how the two fit together. Therefore, there is a difference between the existing Department for Education and Skills home/school agreements arid parenting contracts, as I tried to describe.

I do not believe that I responded to the comments made by the noble Baroness, Lady Sharp, about parenting contracts and the 13th report on the Antisocial Behaviour Bill. Members of the Committee will know that the report also concluded that the Government were entitled to take the view that the provisions of Clause 18 would be compatible with ECHR Article 8. Although there was a discussion, it was decided that it was compatible.

Baroness Sharp of Guildford

I should like to probe further on some of these issues. I am unhappy about the degree to which a voluntary contract can be brought into court proceedings—a concern not only on these Benches. A large number of children's organisations are also concerned. Barnardo's, the Children's Rights Alliance for England, the Children's Society, family service units, NACRO, the National Association for Youth Justice, the National Children's Bureau, National Children's Homes, the National Council of Voluntary Child Care Organisations, the NSPCC, the National Youth Agency and the YMCA England have a number of serious reservations about the status of parenting contracts. That is because the refusal to sign one can be cited as grounds for application for a parenting order, the breach of which can lead to a level 3 fine of £1,000. These are the two issues that I seek to raise in this series of amendments

. A £1,000 fine for breaching a parenting order seems disproportionate and excessive. When we have discussed this with the Minister, the implication has been that such a fine is never going to be levied; that under normal circumstances the fines to be levied for breaches of such orders will relate to the income of those concerned and in effect the maximum fine will seldom he more than £100. We feel, therefore, that it is rather absurd to put on the face of the Bill a provision implying that the maximum fine can be a level 3 fine of £1,000.

Baroness Scotland of Asthal

We may again have conflated parenting orders and contracts. Perhaps I may try to unravel that because I believe that the noble Baroness said that the charities she mentioned are concerned that a breach of the parenting contract could lead to another order and that there would be a reliance on the breach.

The breach of the contract would not form the basis on which the parenting order was made. The original failure and non-compliance would be the matters that would go before the court to determine whether there should be a parenting order, but the court would be entitled to know that there had been a parenting contract which had either been reneged on or had failed for some other reason. The court could then make inquiries of both parties—the local education authority and the parent—about what part, if any, they played in the breakdown of that contract in order to assess whether, in the circumstances, a parenting order is merited.

Noble Lords know that the court will be perfectly capable of deciding that, while the local education authority may have applied for a parenting order, it is not minded to make one for various reasons. So it is the original behaviour which could have justified the parenting order that will be relied on when the matter comes to court.

I shall deal now with the question of the appropriate fine. The noble Baroness will know that all that the level of the fine indicates is the maximum fine. Therefore once the court is seized of the matter, it will be in a position to assess which kind of sentence—in the Criminal Justice Bill we are now creating a much broader range of options than were possible before— and which type of disposal would be the best one for that case. It may be that the court may come to the conclusion than something other than a fine may suffice. The provision simply sets the outer limit, the maximum fine beyond which a sentencer would not be entitled to go.

Noble Lords will know that families vary in their financial means. What may be a huge burden for one family—a fine of £5 could be such a burden for some—for others, a fine of £1,000 could be a mere bagatelle. We also know that, unfortunately, poor behaviour in children is not the sole preserve of the poor.

Baroness Sharp of Guildford

I thank the Minister for her detailed explanation. I shall read carefully what she has said.

Lord Dixon-Smith

This has been a useful debate. The Minister has made clear the progressive nature of the process. It starts off as an essentially voluntary exercise that seeks to work by persuasion and moves through to what I would describe as coercion and, finally, to compulsion if that is what is needed.

We should all be quite clear that parents have the option to do without any of these actions. They may persuade the child to attend school or to mend its ways and behave in a more socially acceptable manner. That is always a choice for the parents. It could be the case—I am sure that the noble Baroness would hope that it would be so—that parents called in before a headmaster or a representative of the education authority to be warned that this procedure might begin would take the matter seriously. In fact, that would be the step which persuades the parents to take the necessary action vis-à-vis the child.

The position has been made clear and that is most helpful. I have no difficulty with the progressive nature of the process. It must be progressive if one is dealing with recalcitrant parents who will not take their responsibilities seriously. I accept that there are some parents with such problems and that they have great difficulty with this, and I am sure that those cases will be dealt with in an extremely humane way.

We shall study carefully the helpful explanation given by the noble Baroness, but for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 97 to 99 not moved.]

6.15 p.m.

Baroness Sharp of Guildford

moved Amendment No. 100: Page 18, line 18, at end insert— ( ) Where a local education authority incurs costs as a result of carrying out its functions specified in this section, the appropriate person shall make arrangements for it to be compensated in relation to these costs.

The noble Baroness said: In moving Amendment No. 100, I shall speak also to Amendment No. 114 grouped with it. Both are probing amendments which relate to the costs borne by local education authorities as a result of setting up arrangements for parenting orders and parenting contracts. Of the two amendments, Amendment No. 114 is probably the more significant.

Amendment No. 100 relates to Clause 19 and the voluntary parenting contracts between the LEA, the school and the parents. Earlier in our discussions I argued that such contracts should be made exclusively between the LEA and the parents. I have also made it clear in our discussions that the support services provided by the LEA in terms of advice and counselling must be significant and individually tailored to parents' needs.

In pursuing that route, costs will not be insignificant even for the voluntary agreement. They will involve the drawing-up and negotiating of the contract between the parents and the school. It may take officials much time to set up meetings and, often, to rearrange them if one partner fails to appear. The contract must then be drawn up, signatures collected, advice sessions set up and tabs kept on whether each side is meeting its obligations.

Amendment No. 114 is the more important amendment because it relates to the costs incurred by a local authority in seeking and policing a parenting order, as well as the costs of implementing the requirements of that order in terms of counselling. advice and support. As it stands, Clause 21(4), which we are seeking to amend, makes it clear that the Secretary of State or, in the case of Wales, the National Assembly, may by regulation lay down who is to meet these costs.

The Minister will know that local education authorities are currently very tightly budgeted. By law some 90 per cent of LEA funds are passported directly through to schools. What is left is all too little to meet the demands of central responsibilities such as special educational needs and school transport. These new powers to set up parenting orders are really a part of the law and order agenda rather than the education agenda. The amendment seeks to make it clear that the costs incurred in setting up and administering the system of parenting orders and contracts should fall on the Secretary of State for Home Affairs rather than on the education budget. I beg to move.

Lord Dixon-Smith

Amendment No. 113 is grouped with these amendments. It deals with the same subject, albeit in a different way.

Clause 21(4) states: The appropriate person may by regulations make provision as to how the costs associated with the requirements of parenting orders under section 20 (including the costs of providing counselling or guidance programmes) are to be borne". Why do we need this on the face of the Bill? I assume that the Bill authorises any expenditure necessary in relation to this provision. If so, it becomes part of local government expenditure and part of the negotiations between local government and the Government to determine what funding will be relevant for the government grant in the ensuing year. That in turn, in due course, determines what the council tax payers' contribution will be.

Why do we need to go further than that? If that is the arrangement, it does not make much difference whether the expenditure arises from the school's budget or the LEA's budget if it is part of relevant expenditure. The two are parts of the same grand formula.

There are two possible reasons for this. First, the Government are attempting to do what they so often do—that is, to micro-manage in intense detail. That should not be necessary because, if this expenditure is part of relevant local government expenditure, it does not need micro-managing. Secondly, it may be that the Government are looking for an opportunity to get out of providing their share and to put it all on the council tax payer. Apart from those two reasons, I have great difficulty in understanding why we need to regulate this issue at all.

I do not agree with the amendments of the noble Baroness, Lady Sharp, which demand compensation for such expenditure. I am quite convinced that it forms a part of general local government expenditure and should he met in the general way through a combination of the council tax payer and the taxpayer. If we start to make exceptions for such matters, we will be heading down an extremely dangerous road. It is not an appropriate way to go.

My amendment seeks to persuade the Minister—I do not think she will need any persuading—to explain precisely the financial arrangements and the need for this peculiar subsection, which does not belong in the Bill.

Baroness Scotland of Asthal

I shall be more than happy to explain. I hope to give comfort to the noble Baroness, Lady Sharp, and the noble Lord, Lord Dixon-Smith. I can assure the noble Lord, Lord Dixon-Smith, that we have no intention of micro-managing this provision, but we do intend to give local education authorities and schools the tools they need to make it work.

The effect of Amendments Nos. 100 and 114 would be to create a specific and compulsory grant-making power which would be completely unsuitable in the light of Section 14 of the Education Act 2002, which introduced a wide grant-making power that is already in force. However, I understand that the noble Baroness is concerned how the costs of guidance or counselling sessions advocated under a parenting contract or order will be met by local education authorities or schools.

I can reassure the noble Baroness that we do not envisage that parenting contracts or orders will lead to any additional costs for local education authorities. As has been identified by the noble Lord, Lord Dixon-Smith, local education authorities already have responsibility for promoting regular attendance and good behaviour in schools, and the costs of parenting contracts will be offset by savings made through preventing the need for prosecutions in cases of truancy and avoiding the need to provide expensive alternative provision for excluded pupils. In any case, the use of parenting contracts and orders is voluntary.

We shall set out in guidance factors that should be considered when deciding whether to enter into a parenting contract or deciding whether to apply to the court for a parenting order.

Amendment No. 113 seeks to remove the power to issue further regulations relating specifically to parenting orders in cases of exclusion from school. The regulations will be needed to set out who will be expected to meet the costs of counselling or guidance programmes included as part of a parenting order.

Although the local education authority is responsible for applying for a parenting order, it may agree to do so on behalf of the school. We expect that in most cases the local education authority will bear the costs associated with parenting orders, except in cases where an alternative arrangement is agreed with the school. We need to consult with those who are directly affected to ensure that there is an appropriate method of apportioning costs where necessary. That is why detail of this kind is left to regulation.

I do not agree with the noble Baroness in relation to funding. She knows that the Government have put in a huge amount of increased funding since 1997. Indeed, the Committee will know that through the behaviour improvement programme the Government have invested a further £342.2 million in this area. We hope that local education authorities and those responsible for bringing about an improvement in children's behaviour in educational establishments will seek to take advantage of that additional funding and use it judicially and well to the benefit of the children they seek to serve.

Lord Dixon-Smith

I do not have the last word on this issue, which is probably just as well.

The Minister did extremely well until she referred to the need for regulations. At that point, if I understood her correctly, she began to speak about the need for the regulations to apportion the costs between the LEA and the school. I wonder what the relationship between an LEA and its schools might be that we need regulations to deal with a matter like that. I admit that times have moved on since I was involved and that relationships may have become worse, but the idea that you need to regulate this kind of thing from the centre is quite ridiculous.

If the regulations are made within an open framework which allows a considerable degree of variation to meet local circumstances, that is one thing; but if the regulations are specific, that is entirely another. Regrettably, my experience of looking at regulations in this kind of area since I have been in this place has been that the regulations tend to be more and more specific as time goes by. That is one of the reasons why local authorities have so much difficulty. There is too much specificity in these processes.

The noble Baroness may be able to reassure me, but I could not resist coming back to say that I am genuinely concerned. I have always believed in treating people responsibly and giving them a free rein if it is at all possible to do so. I have always found that if you do that they then behave responsibly.

Baroness Scotland of Asthal

I shall try to reassure the noble Lord. I indicated how we expect it would work in the normal way. However, we wish to consult those who will be most affected by this to make sure we get it right.

We are looking to craft a model which will be a practitioner's guide and which everyone will know how to operate and understand. We have phrased the provision to allow us to consult on these issues to see what should go into the regulations and what should not. I can give the noble Lord comfort that there is no definitive, defined plan at this point.

6.30 p.m.

Baroness Sharp of Guildford

I thank the Minister for her response. As I stated earlier, my two amendments were probing amendments, prompted by Clause 21(4). Like the noble Lord, Lord Dixon-Smith, I noted that it sought to apportion costs. I have some reservations about the wording used by the Minister when she talked about apportioning costs between schools and local authorities.

I take into account the amount of money that has been put into the education budget for behaviour improvement. I am delighted that it is going in. However, many of the procedures that have been set in place consume considerable funds. I think—indeed, I certainly hope—that in the long run this will diminish other costs. In the short run, it may well increase costs considerably. We all know that we cannot reap where we do not sow.

The assumption is sometimes that local authorities can bear these costs. I know only too well that frequently it is a matter of robbing Peter to pay Paul. If extra mandatory requirements are put on a local authority, the non-mandatory requirements are affected. For example, youth services have been squeezed hard for years because so many other requirements have been mandatory.

I will ponder these matters further. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 101 not moved.]

Clause 19 agreed to.

Clause 20 [Parenting orders in cases of exclusion from school]:

[Amendments Nos. 101A to 107 not moved.]

[Amendments Nos. 102 to 107 not moved.]

Clause 20 agreed to.

Clause 21 [Parenting orders: supplemental]:

[Amendments Nos. 108 to 114 not moved.]

Baroness Sharp of Guildford

moved Amendment No. 115: Page 19, line 23, leave out "head teachers and responsible officers

The noble Baroness said: In moving Amendment No. 115, I shall speak also to Amendments Nos. 117, 118, 120, 121, 122, 123, 125, 129, 130 and 131.

All these amendments concern the role of head teachers and other responsible officers in relation to parenting orders and the issuing of fixed penalty notices. Amendment No. 115 is merely a probing amendment. I have already made it clear from these Benches that we would prefer head teachers not to be involved in administering parenting orders, least of all going to court and seeking such an order. What responsibilities does the Minister have in mind for head teachers under these parenting orders?

Amendment No. 117 and subsequent amendments in the group are more substantive and relate to an issue of principle. Clause 23 extends the use of fixed penalties to truancy, in effect allowing parents to buy themselves out of prosecution by paying a fixed penalty instead of going to court. It grants the power to issue such strict penalty notices not only to local education authorities whose responsibility it is to police truancies but to police constables, teachers and head teachers.

We on these Benches are very unhappy at this extension of responsibilities. We have already made it clear that we do not think teachers should be involved in issuing the voluntary parenting contract. If such contracts are to work, they need to be voluntary and the teachers need to be seen to be a neutral party, helping to make the relationship between pupils and parents work. Giving teachers the power to impose fixed penalties on parents would, we feel, completely jeopardise this relationship.

It is for educational welfare officers within LEAs to take on that responsibility and work closely with schools and families to resolve attendance issues. Their responsibilities are clearly set out in the Department for Education and Skills guidance on Social Inclusions: Pupil Support—SIPS guidance. It includes the following competences: the ability to promote regular school attendance and to help parents in meeting their responsibilities in securing the education of children and young people; the ability to assess and review children and young people and family circumstances, plan appropriate responses and intervention within the statutory framework and evaluate outcomes.

These are core skills which enable educational welfare officers to make an assessment of the individual circumstances on which to base any decisions on what response is most appropriate in cases of truancy. These are not skills the police are trained in or have experience of. The SIPS guidance sets out that schools and educational welfare officers should have clearly defined roles, and the school's role is to be helpful and supportive.

The proposals give power to schools for the enforcement of truancy and would create a radically different relationship between the school and the family that could be damaging. Asking a school or an LEA to fine a parent could increase existing tensions between parents, their children and their schools. The proposals could also further exacerbate child and family problems, and may have an adverse effect on family relationships.

There are also broader concerns in these cases, where a criminal offence is alleged to have been committed. The due process of fair trial should not be evaded. Such an extension of penalising powers outside the court process causes concern and possible breaches of Article 6 of the European Convention on Human Rights.

If the Government are not prepared to amend the Bill, we seek the following assurances: that the Government intend that most fixed penalty notices will be issued by LEAs; that regulations will ensure that the grounds for issuing a fixed penalty notice and the right of appeal are clearly set out; that the amount to be paid will be less than the current fine for a person found guilty of an offence under Section 444 of the Education Act 1944; and that the Government are satisfied that by extending powers to issue fixed penalty notices under these provisions, they are not breaching Article 6 of the European Convention on Human Rights.

Amendments Nos. 117 and 118 seek to delete the whole of new Section 444A and insert instead a simple requirement that any penalty notices or other procedures should be issued only by a local education authority under the auspices of the educational welfare officers.

Amendments Nos. 120 and 122 require that a head teacher is to be explicitly excluded from among those who may issue penalty notices.

Amendment No. 123 excludes police constables from issuing penalty notices for truancy. This reiterates our belief that the only authorities which should have the knowledge and power to issue penalty notices for truancy should be local education authorities and educational welfare officers.

When we come to Clause 49, we shall be discussing how widely powers to issue fixed penalty notices should be extended. For the moment, suffice it to say that while of course police officers play a very important role in chasing up truants, they seldom have the detailed information about the truants or their family background to know whether it is appropriate to issue fixed penalty notices in these circumstances. That is why we believe that the job should be left to local education authorities and education welfare officers. They are the specialist staff trained to handle such situations, and only they should be authorised to issue penalty notices of this sort.

Amendments Nos. 125, 129, 130 and 131 are all consequential amendments that follow from the position that we have taken. Perhaps I should say, in relation to Amendment No. 125, that in so far as we believe that police constables should not be issuing fixed penalty notices for truancy, so a fortiori that applies to community support officers. I beg to move.

Lord Hylton

I should like—

Lord Dixon-Smith

If the noble Lord, Lord Hylton, will forgive me, I have some amendments grouped with these amendments, which I should perhaps speak to so that the whole group is before the House.

Amendment No. 120 would remove the power of the head teacher to authorise others to issue penalty notices. Amendment No. 124 would authorise a community safety officer to issue penalty notices. I note the difference of opinion between the noble Baroness, Lady Sharp, and myself about the involvement of the police in this sector. However, if the police have the power to do that, community safety officers—that new category of catch-all, wonderful people, who will fulfil a very useful role and very often may be the first people to realise that a child is truanting—may be even more appropriate to exercise that function. In some authorities, I imagine that a community safety officer on the ground may realise what is going on while an education welfare officer or truanting officer, or whatever they are now called, because they are relatively few and far between, might not find out until much later. There is a real issue involved in that.

Amendment No. 126 would mean that a head teacher or "his authorised nominee" at a school might issue a fixed penalty notice. Using that wording would restrict it to one per school, which would be necessary for the sake of clarity within the school and for parents and children.

Amendment No. 127 is in a sense slightly inconsistent with Amendment No. 120, as it once again involves the head teacher. That is because of the way in which the Bill is drawn up. The amendment would mean that the person issuing fixed penalty notices for a school would be a member of the non-teaching staff. It would probably be wise to avoid having academic staff involved in issuing fixed penalty notices. That certainly concerns us, and it needs careful consideration.

Amendment No. 128 takes us back to amending the paragraph that refers to, a member of the staff of a relevant school in England who is authorised by the head teacher of the school to give penalty notices". The amendment would take out the head teacher out and revert to the LEA.

It is difficult to see exactly how the new system will work. I imagine that the noble Baroness, who has to devise the regulations to make the provisions work, will have to run a few experiments before she can be absolutely certain of the most appropriate way in which to make progress. There is such a breadth of detail in this very long part of the Bill, which allows an almost infinite variety of possibilities. However, it will be necessary in the end to have something simple and straightforward that can be made to work universally. It may therefore need to be broad brush. To try by regulation to define with precision exactly how the provisions will work will be an immensely complex task, and I am glad that it is the task of the noble Baroness and not mine.

Our points need serious consideration, and we thought that they should be before the Chamber.

6.45 p.m.

Lord Hylton

I shall speak to Amendment No. 119A to Clause 23, which is entirely a probing amendment, as Members of the Committee may have guessed.

It is important that fixed penalties should not become a quick fix or substitute for parental contracts or parenting orders. I start from the general proposition that non-attendance and truancy is often a symptom of other difficulties that need to be addressed, and not only something that gives rise to a fine. One can think of many examples of the underlying difficulties, such as bullying at school, violence and abuse in the home, parental discord, the ill health or emotional imbalances of pupils, or pupils being addicted to substances—or even worse, or as bad—to crime. Therefore, I agree with the NSPCC that compulsory measures should be used only as a last resort.

The LGA has argued, as the noble Baroness, Lady Sharp, pointed out, that fixed penalties may adversely affect family relationships, perhaps especially in cases of cohabitation, trial marriages and step relationships. Such penalties could increase the number of children taken into care where, eventually, a parent is sent to prison for non-payment. I note that there is no right of appeal or representation as regards fixed penalties.

What are the Government's views on those last two points and what do they intend to do to minimise the taking into care of children because of non-payment? With the Bill as it stands, will parents suffer prosecution if they deny the facts behind a fixed penalty notice, oppose the penalty or are unable to pay?

Problems of professional ethics already arise under Section 444 of the Education Act 1996 and the Criminal Justice Act 2000. In one county in the South West, parents are invited to a court assessment meeting at the school with their child. A senior education welfare officer chairs the meeting and an education welfare officer gives evidence about nonattendance and reasons for it. The chairman then decides whether to acquit, review the case later, give a warning or recommend court action. He thus appears to act as prosecutor, judge and jury. Furthermore he is often the line manager of the junior EWO, who may be tempted to say what his senior wants to hear.

That quasi-judicial process seems somewhat flawed, especially when dealing with inarticulate parents who do not have representation.

Can the Minister tell us how that may be improved and what the effect of the fixed penalties is likely to be on our existing procedures? Can she give us details of plans for developing alternative kinds of education for pupils who simply do not fit into the available standard schools where they are supposed to be, especially when those pupils are disruptive and rebellious teenagers? Can she say whether behaviour improvement programmes are successful in helping children to reintegrate into schools from which they have been absconding?

Finally, I should like to inquire about lines 18 and 39 on page 21 of the Bill. The first refers to a police constable and the second to a community support officer. I can see that it may be necessary to include police and quasi-police in relation to fixed penalties for the sake of completeness. I ask, however—as I think did the noble Baroness, Lady Sharp, and the noble Lord, Lord Dixon-Smith—whether the Government wish to involve the police in cases other than the most exceptional ones. If the police can remain outside this process, that seems wholly desirable. The police have more important things to do and might only aggravate some situations.

I conclude by asking the noble Baroness if she will be kind enough to look again at the drafting of subsections (4). (5), (7) and (8). They seem hardly elegant, and I wonder whether they are really necessary. The answer may be that they seek to improve the poor drafting of previous Bills. However, perhaps they only make matters worse for the lay user of the Bill.

Baroness Scotland of Asthal

I start by immediately reassuring the noble Baroness, Lady Sharp, that these provisions are not a means by which parents can buy themselves out of prosecution. She will know that the application of a fixed penalty notice does not expunge the basis on which it was issued if that penalty is not paid. Indeed, it is hoped that the penalty itself will be one of the catalysts for improved behaviour. It is very important that I make that plain at the beginning, before I begin my other remarks, as I know that some may have had the anxiety which the noble Baroness expressed. I should like very expressly to reassure her that that is not the case.

Amendments Nos. 115, 130 and 131, in the name of the noble Baroness, Lady Sharp, would remove the power for head teachers and their nominees to act as responsible officers for parenting orders. I say straightaway that I understand the thrust of what the noble Baroness says and the anxiety she has expressed. However, we cannot accept that head teachers or their staff should be written out of the picture in this way. In many instances, it will be appropriate for this responsibility to lie with the local education authority. However, it is also right to allow for the possibility that a head teacher or their nominee should take on this role.

It is not hard to think of an instance where the head or a member of school staff is the person working most closely with the child and parents in order to bring about an improvement in behaviour, and there is no reason why they should not be designated the responsible officer with their consent. Our proposed regulations would ensure that that would be possible only if the school governing body also agrees.

Guidance will advise on the appropriate circumstances for a school to be involved in overseeing a parenting order. Nothing in these provisions is mandatory or obliges head teachers, LEAs or others to participate. We are simply creating extra tools within the practitioners' toolkit. If they think that they can and should properly and effectively use them to assist a parent and a child on the road to recovery in terms of behaviour, those tools will be available for them.

One could think of a number of examples in which head teachers could be assisted thereby. Indeed, my noble friend Lady Ashton gave me one such example. Sonic basically good parents—by which I mean parents who meet the average developmental and emotional needs of their child—can have a total or almost total disregard for timing or for whet her their child should go to school. Teachers have been able to do very little to encourage such parents. They are not so bad that one would wish to remove the child or take corrective action through the courts, but they are sufficiently in error for one to wish to change their behaviour. If they thought that the school could do something about their bringing their child to school late every day—so that the child missed its first maths lesson, for example, for a year—and that a fixed penalty notice might result, that could be the catalyst in persuading them that it might be better to find an earlier bus. We know that children in such circumstances are sometimes excluded for half a day or something of that sort. So in such cases the orders could be a truly useful tool that could be used if the teacher thought it appropriate. These amendments would introduce inflexibility into the operation of parenting orders that would hinder their effectiveness in dealing with the root causes of poor behaviour.

I turn now to the amendments on penalty notices for truancy. Penalty notices have an important role to play as one of a wide range of interventions to promote better school attendance, which is essential to improve children's educational prospects and to avoid putting them at risk of criminal or anti-social behaviour. I shall begin with the amendments in the name of the noble Lord, Lord Dixon-Smith—Amendments Nos. 120, 126, 127 and 128.

Your Lordships will be aware from the debate in another place of our intention to limit to senior school staff only those who may be authorised by head teachers to issue penalty notices. Draft regulations which have been placed in the Library of the House specify that limitation as applying to deputy head teachers and assistant head teachers. I am pleased that the noble Lord, Lord Dixon-Smith, agrees with me that head teachers should be given the discretion to issue penalty notices. Our proposals would enable head teachers to empower their senior management team to do the same.

We think that head teachers can be trusted not just to issue penalty notices themselves, but also to empower their senior management team to do the same. It is often the case that a deputy or assistant head teacher will take on responsibility for attendance arid discipline matters within a school, and we believe that it is appropriate that they are able to support the head teacher further by issuing penalty notices, if the school has decided to make use of this sanction. Our view is that the head teacher is in a better position than the local education authority to decide which, if any, of their staff should be empowered to issue these notices. A number of head teachers have said that they welcome such a power for themselves and their senior management team because it will bolster their and their school's authority to ensure that parents take seriously their responsibilities to ensure that their children attend school.

Similarly, we believe that the senior management team are in a far better position than ancillary staff to know the detailed circumstances of each case and to exercise the professional judgment required. We are not saying that clerical staff cannot provide support in issuing penalty notices, simply that the decision to issue should be taken at a higher level. It is right that schools should challenge as well as support parents and decisions about which approach to take should be taken by the senior management team.

Amendment No. 124 would add the words "a community safety officer" after "a constable" in the list of authorised officers. I join the noble Lord, Lord Dixon-Smith, in commending the good work that has been done by such officers. The Bill refers to community support officers (CSOs) rather than community safety officers but we believe that we are talking about precisely the same thing. The amendment is therefore unnecessary because community support officers are already included. New Section 444B(3) of the Bill amends the Police Reform Act 2002 to give a community support officer the same powers as a constable to issue a penalty notice for truancy.

I turn to the amendments in the name of the noble Baroness, Lady Sharp. I shall begin by clarifying one matter. This Bill does not create a new offence in respect of truancy. Under existing legislation (Section 444 of the Education Act), parents of a registered pupil whose child fails to attend school regularly have committed an offence for which prosecution is currently the only available sanction. Penalty notices will provide an alternative and enable parents to discharge potential liability for conviction for that offence by paying a penalty. The reference to "proceedings" in new Section 444A(3) of this Bill refers to bringing a prosecution for truancy under the existing Education Act provisions and is intended to ensure that any prosecution is stayed until the parent has had an appropriate opportunity to pay the penalty. I hope that these comments respond to Amendments Nos. 117 and 118 in the name of the noble Baroness.

The remainder of the noble Baroness's amendments deal with who should issue these notices. I hope that the noble Baroness will be reassured when I say that we expect most penalty notices to be issued by local authority education welfare officers, who also organise prosecutions for truancy. But we believe that it is right also to give a number of others the power to do so. I shall not repeat what I have already said in that regard. Instead, I shall explain why the police should have a role in issuing penalty notices. The police nowadays are far more involved in the world of education than they used to be. In some areas there are now police based in schools and in many schools police deliver talks on various subjects such as drugs awareness and personal safety. And of course the police are a key agency in combating truancy at street level as they continue to fulfil their traditional role of accompanying education welfare officers during the operation of local authority truancy sweeps and patrols through the use of the Section 16 power of the Crime and Disorder Act 1998 which enables police officers to bring truanting children and young people back to school or a place of safety. So there is nothing new about the police having a role in tackling truancy.

Police officers involved in truancy work locally will understand the issues and in many cases will know the children and families they encounter out of school, whether on a truancy sweep or otherwise. It would therefore be illogical and potentially counterproductive to create a situation where they were prevented from issuing penalty notices.

Naturally we are anxious to ensure consistency in the way penalty notices are used and we intend to achieve this in two ways: first, by issuing statutory guidance which will ensure national consistency and cover the general circumstances in which a penalty notice might be issued. The statutory guidance and associated regulations will be the subject of a full public consultation. Secondly, we intend to ensure consistency through a local code of conduct which will be prepared by the local education authority, the purpose of which is to ensure local consistency and the smooth administration of the scheme. In preparing the code LEAs will consult schools and the police who will subsequently issue penalty notices within the parameters of that local protocol.

Last, but by no means least, I turn to Amendment No. 119A in the name of the noble Lord, Lord Hylton. This would remove all the supplementary provisions relating to penalty notices. These provisions are necessary to ensure the effective administration and consistent application of the penalty notice scheme; indeed, the scheme could not work without them. The regulation-making powers are required to specify who can issue notices—

7 p.m.

Lord Hylton

I am grateful to the noble Baroness for giving way. I explained that it was purely a probing amendment. I gave notice to the noble Baroness's department of the points that I wished to raise. Therefore, I look forward to a very sympathetic reply.

Baroness Scotland of Asthal

I hope that the reply will be sympathetic. I am comforted by the comments made by the noble Lord now and also earlier when he said that the amendment was probing. Others outside the House have also voiced these concerns. I reassure them that the reason we are not pursuing them is because we believe that the measure could have an effect that I know the noble Lord does not seek.

As I say, the regulation-making powers are required to specify who can issue notices and details about the local codes of conduct—important matters which I spoke about earlier. The power to issue guidance is necessary to clarify the circumstances in which a penalty notice is issued and will ensure national consistency.

I turn to some of the other issues the noble Lord, Lord Hylton, raised. He outlined many of the other reasons which cause and contribute to truancy. That was well said. We know that many of the children who truant have suffered from bullying and have problems at home. One has to try to get a broader understanding of why those children do not attend school and/or why they behave badly. One has to dig a little more deeply and not treat the matter superficially. We agree that there are many causes of truancy, including those mentioned by the noble Lord, and others including boredom, disaffection with school, personal or family problems. The national behaviour and attendance strategy aims to tackle these issues. We are investing nearly £470 million over the next three years in a national behaviour and attendance strategy—which I have already referred to in relation to other amendments—to support schools in improving behaviour and tackling truancy. Through the strategy, all secondary schools will soon have access to training materials and behaviour and attendance experts so that the senior management team in a school is confident and equipped in dealing with poor behaviour and attendance and can pass on its knowledge to other staff.

Schools will be challenged to think about a range of factors, including: whether they have clear rules on bullying and dealing with unacceptable behaviour in the playground; how clubs and other activities outside the school day and at weekends can support what happens during formal school sessions; how to make the best use of computerised registration to identify pupils with attendance problems; how to involve education welfare officers in working with families who have not sent their child into school; whether staff are sufficiently well trained in responding to classroom disruptions and in dealing with disruptive pupils; and how—this is important to— develop the use of learning mentors and learning support units to help children with particular problems. We are recruiting additional people with the relevant expertise and skills to support schools and education authorities in this work. We shall monitor the benefits that accrue from that. My noble friend Lady Ashton, who is present on the Front Bench, will be more than happy to write to the noble Lord and take up some of the specific issues he raised which may be slightly outwith what we can deal with now.

Negative effects on home/school relationships would occur only if school staff used their power to administer penalty notices inappropriately. We should be able to trust practitioners to use their discretion wisely and, as I said, we intend to issue guidance to help them to do so.

We do not agree that penalty notices will add to the numbers of children in care. Penalty notices are an alternative to prosecution and, if a notice is not paid, the LEA will have to withdraw the notice or prosecute. Before handing down a sentence of imprisonment, which is available only in the case of the aggravated offence of truancy, courts are under a duty to consider the home circumstances of the family, usually assessed via a probation report. That would include taking into account the child's best interests. Courts must consider the parent's ability to pay in setting the level of a fine.

There is no statutory right of appeal against a penalty notice. As I have already explained, they are an alternative to prosecution. A parent who wishes to challenge a notice can refuse to pay and can defend the subsequent prosecution. Guidance and regulations will also ensure that the notice itself makes that clear. Of course, however, a penalty notice will not come to a parent out of the blue. They will already know that the school and/or LEA are concerned about their child's attendance, and our statutory guidance will suggest that parents should be advised as soon as a penalty notice is being considered. It is at those earlier stages that a parent may make representations about the notice if they wish. An LEA will have the power to withdraw a penalty notice.

We do not agree that penalty notices undermine the security that we seek to put in place. In fact, they could reinforce it. They give the parent an opportunity to consider their position, whether they want to change, whether they would rather be prosecuted or pay a penalty fine, or to consider with the school whether any of those courses could be avoided by entering into a well-targeted parental agreement through the contract about which we spoke earlier. It gives them an ambit.

The noble Baroness, Lady Sharp, spoke about the level of penalties. The issue has caused her and others concern. We intend to consult on the level of penalty, but our intention in setting the levels was to reflect the usual fines given by magistrates in truancy prosecution cases. We think it important to have different levels of penalty. A parent who is prepared to acknowledge that their child's absence is unauthorised will be able to pay a lesser penalty than a parent who is not. We think that acknowledgement of wrongdoing is an important part of the process.

A lesser level for early payment is important, as we believe that it will underpin the administrative efficiency of the scheme. We want to minimise the burden on the local education authority responsible for its administration. It is important that no one will have to issue a penalty notice—they are simply part of the toolkit. Nor will a parent have to pay a notice. although they of course run the risk of prosecution if they do not. Courts must take into account the ability to pay.

The noble Baroness and, I hope, other Members of the Committee will have had the opportunity to look at the proposed draft regulations. In those we propose that, when a fixed penalty notice is applied, if it is paid within 14 days and if there is an agreement that an absence is unauthorised, the fine will be £25. If there were no agreement about the unauthorised absence, it would be £50. If payment were within 28 days in the first category, it would be £50, and in the second category £100. That is the level of fine about which we speak.

I have sought to answer the issue as comprehensively as I could, as I wanted to give the noble Baroness, Lady Sharp, the reassurances that she asked of me on how the provision would work, what the level would be and how it would be implemented. Her last request was to do with breach of Section 6 of the Human Rights Act. Because the provision will be dealt with in the way I have described, we are content that it complies with that section.

7.15 p.m.

Baroness Carnegy of Lour

In everything that the noble Baroness has said, she has not mentioned Wales, and I take it that the clause applies to Wales. To what extent have the Government consulted the Welsh Assembly on the matter? They are legislating for Wales, as is their duty. However, they are legislating in a way that deeply affects everything that happens in schools, and the Welsh Assembly has a very big responsibility for how schools operate.

The provisions will alter the relationship of the teaching staff of a school with parents and children other than those affected by the issue of a penalty notice. For the first time, teachers will be asked to operate the law of the land other than education policy in schools. Is the Welsh Assembly happy about that? It is a huge issue.

The noble Baroness, in consultation with her education colleague, is making a judgment that the provision will help schools. In England and Wales, some of the teaching authorities are worried about it, and so are some of the local authorities. The noble Baroness, Lady Sharp, has told us of many of their concerns; I had that brief, too, and was interested in it. However, I am specifically asking whether the Assembly is happy about the provision. To whom will the Bill delegate the authority to issue orders? Will it be the Assembly or the Secretary of State for Wales? Will the Welsh Assembly be free to have its own code of conduct to send guidance under the Bill?

Those are important points. I do not see a Member of the Committee based in Wales. I raise the issue simply because I am very interested in how devolution affects such measures. It is not enough that the Welsh Assembly knows about the provision. Has it agreed to such matters, and does it know how it will operate its devolved responsibilities?

Baroness Scotland of Asthal

I thank the noble Baroness for raising the Welsh banner as opposed to the Scottish one with which we are so familiar. She has raised an important point. Clause 70 deals with the extent to which the Bill will apply to Wales. Subsection (1) provides that: Parts 1 to 5, 7 and 8 extend to England and Wales only". However, there are no fixed penalty notices for Wales. Enabling provisions can be made available if the Welsh Assembly so wishes. At the moment. the fixed penalty notice provisions refer to England only, but there would in the normal way be consultations. If the Welsh Assembly wished those enabling provisions to be activated, I dare say that that could come about.

Baroness Carnegy of Lour

Where does it say that? I cannot spot it. Of course I saw the extent clause before I spoke, but where does it say that fixed penalties do not apply?

Baroness Scotland of Asthal

The provisions in relation to fixed penalty notices are covered in Clause 23(9). It states: The National Assembly for Wales may by order amend sections 444A and 444B of the Education Act 1996 … by removing the words "in England" in each place where they occur?

Baroness Carnegy of Lour

Is the Welsh Assembly absolutely happy about the Bill?

Baroness Scotland of Asthal

I have nothing before me to indicate that it is not so content. If I discover that I am in error, I will of course write to the noble Baroness.

Baroness Linklater of Butterstone

I support the amendment. As the Minister knows, we on these Benches are extremely unhappy about the extension of the role of head teachers and others. Their specific and central role is the education and welfare of children but they are to have as part as their "toolkit" powers that may lead the parents of those children down a path that takes them to court.

If there is non-payment of those fines, that is the ultimate route that they will take. Wide though the remit of head teachers and their staff is or could be, I fail to see how the exercise of that kind of power can do anything to promote good and harmonious relationships, which are so important for the education of the child, between parent and school. Such a power is punitive; it is potentially damaging and it does nothing to promote what is really central to the role of the teacher.

I am both the chairman and the founder of a school. I know that many others in the education world are deeply concerned that such powers should be part of a so-called "toolkit". I really hope that the Government will reconsider. We will certainly return to this matter at a later stage.

Baroness Scotland of Asthal

I hear what the noble Baroness says. The exercise of such powers is neither punitive nor damaging. It is voluntary. There is nothing within the Bill that compels any local authority or teacher to exercise those powers. I remind the Committee that it is not true that the imposition of the penalty notice inexorably leads down the path to criminalisation, because, at the moment, failure to send one's child to school is an offence the fixed penalty notices offer the parent an alternative to being found guilty of that criminal offence and an opportunity to rehabilitate and change if they so wish. If they do not wish to take that opportunity, the consequence for them and their child would be the old situation, where the only other course available is prosecution in the magistrates' court. That situation has prevailed for a very long time indeed.

It is important to regard the provision not as punitive or damaging, but as an opportunity to divert people away from the criminal proceedings path and keep them, on a voluntary basis, within an area where we can still work with them creatively. I honour what the noble Baroness has said, but her view is not shared by many.

Baroness Sharp of Guildford

I want to make two further comments on the issue. We have been discussing two issues. The first is whether fixed penalty notices are a good idea for truancy. The second is the question of who should be responsible for the expenditures, if they are imposed.

I have listened to the Minister. Like my noble friend Lady Linklater, I am still not convinced that fixed penalty notices are a good way of solving the problem. The Minister took offence at my suggestion that it was a way of parents buying themselves out of prosecution, but she did in fact explain that truancy is an offence and that parents will ultimately be prosecuted for it. Fixed penalties temporarily buy them out of it.

I am not sure that it is a sensible way forward in any sense. The Minister quoted the example of parents who had difficulty with getting their children to school on time. The imposition of a fixed penalty in those circumstances would be totally inappropriate, whereas the voluntary parenting contract might be.

We will return to the issue. We are not content with the answers that we have been given. We are not convinced that a large number of teachers are happy with the situation. Many have made clear to us their unhappiness at being placed in this position and it is important that we pursue it further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

Clause 21 agreed to.

[Amendment No. 116A not moved.]

Clause 22 agreed to.

Clause 23 [Penalty notices for parents in cases of truancy]:

[Amendments Nos. 117 to 129 not moved.]

Clause 23 agreed to.

Clause 24 [Interpretation]:

[Amendments Nos. 130 and 131 not moved.]

Baroness Scotland of Asthal

moved Amendment No. 132: Page 23, line 23, leave out subsection (2).

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Clause 25 [Parenting contracts in respect of criminal conduct and anti-social behaviour]:


moved Amendment No. 133: Page 23, line 40, at end insert "or any statement by the youth offending team which it believes is appropriate for their side of a parenting contract

The noble Lord said: With a little good fortune, we may deal with the amendment somewhat more rapidly. It is a short amendment and raises a small point.

The amendment addresses what or what should not be in a parenting contract. The issue is whether the Bill is inclusive or exclusive. The Bill states: A parenting contract is a document which contains … a statement by the parent that he agrees to comply with such requirements as may be specified in the document for such period as may be so specified, and … a statement by the youth offending team that it agrees to provide support to the parent for the purpose of complying with those requirements". If that is all the Bill states, the question is whether the wording is sufficiently flexible to permit the kind of variations that will be needed, depending on circumstances, the type of person that one is dealing with, the type of offence and so on. Therefore, in Amendment No. 133 I seek simply to widen out that wording and enable the youth offending team to add words if it considers that that would be helpful.

I do not intend to devote any time to Amendment No. 134. We have discussed previously the question of "must" as opposed to "shall". It was perhaps careless of me and the Bill team not to ensure that all such amendments were put into one group. Therefore, I have nothing to say on that point. However, I believe that Amendment No. 133 is worth consideration. I beg to move.

Baroness Scotland of Asthal

I believe that Amendment No. 133 has the effect of allowing the youth offending team discretion to decide what it will agree to do as its part of a parenting contract, which need not include support. That would change the nature of the parenting contract, which is designed to provide parents with support to enable them to meet their responsibilities and thereby to improve the behaviour of their child.

If the intention of the amendment were that youth offending teams should be able to include additional material, as well as the statement that they agree to provide the support, then we would argue that it is not necessary. As the clause is currently drafted, it does not prevent the contract containing other statements by the youth offending team, provided, of course, that the parent signs up to the contract. I believe that that may meet the needs of the noble Lord. I am delighted that he will not be pressing Amendment No. 134, for which I thank him.

Lord Dixon-Smith

I am grateful. I believe that the noble Baroness has answered the point that I raised with regard to parenting contracts. Certainly, in the amendment I had no intention of making it possible for youth offending teams to get away with not providing support. It was simply intended to give them the opportunity to add words.

The Minister said that the wording of the Bill is not exclusive and that words can already be added. I am satisfied with that assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 134 not moved.]

Clause 25 agreed to.

Lord Bassam of Brighton

I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begin again not before 8.33 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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