Sitting of 28 May 2002

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read ht' the Lord Bishop of St Albans.

Fireworks
Lord Hardy of Wathasked Her Majesty's Government:
Whether they have received substantial representations concerning the use of fireworks and what response has been offered.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, we have received a significant number of representations concerning the use of fireworks. We recognise the depth of public feeling on these issues, particularly in respect of the noise and nuisance caused by the misuse of fireworks. We are actively considering across government what action can be taken within existing legislation to address the growing problems. We are also having further talks with the fireworks industry.
Lord Hardy of Wath: My Lords, while thanking my noble friend for that Answer, perhaps I may ask that more urgent attention is given to the problem, not least for the Government to take note of injuries to children and the effect on wildlife, domestic pets and farm livestock. Does my noble friend consider that the larger and louder items more akin to military ordnance than modern entertainment are best left to public and well-organised displays rather than for ignition in people's gardens? They can hardly be described as private celebrations as they cause noise and nuisance within a couple of miles' radius.
Lord Sainsbury of Turville: My Lords, as I hope I made clear, we are concerned about injuries and the noise, nuisance and distress this causes to animals. We have been holding discussions across Whitehall with the enforcement authorities and the industry and we have made some progress. We have agreed with the industry that airbombs should be removed from general retail sale and we should see the impact of that towards the end of the year as existing orders and stocks are used up.
That is an important issue because it is one of the main causes of the problems. However, we need to do more to address the wide variety of issues raised.
Baroness Miller of Hendon: My Lords, as many of the accidents involve imported fireworks, can the
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Minister say what efforts the Government are making to try to stop that, in particular the import of fireworks which do not follow regulations issued by the EC?
Lord Sainsbury of Turville: My Lords, I am not certain whether there is information to suggest that imported fireworks break the regulations. However, I shall certainly follow the matter up and if there is a problem notify the noble Baroness.
Lord Mackenzie of Framwellgate: My Lords, given that the misuse of firearms in the wrong hands can amount to—
Noble Lords: Fireworks!
Lord Mackenzie of Framwellgate: My Lords, I apologise, I meant fireworks in the wrong hands. Old habits die hard. Given that their misuse can amount to the use of an offensive weapon, will the Minister agree that this is an ideal task to be dealt with by the new community support officers, who are provided for in the Police Reform Bill?
Lord Sainsbury of Turville: My Lords, I agree that fireworks can be used dangerously but I believe that it is overstating the case to think of them in terms of offensive weapons. The main point is to ensure that we examine constantly the issue of safety and their noise and nuisance aspect and that their use is properly enforced through the appropriate authorities.
Lord Campbell of Croy: My Lords, is the Minister familiar with the saying that what goes up must come down? Is he aware that large rockets when spent can be dangerous missiles when they return to earth?
Lord Sainsbury of Turville: My Lords, that is a consideration but while it is alarming that injury figures have risen it is impossible to detect a particular aspect which has worsened. Across the picture, we are seeing an increase in injuries and therefore we need to examine safety in general rather than a particular case.
Lord Mackie of Benshie: My Lords, is the Minister aware that a great deal of pleasure is being gained by a great number of people out of well-conducted bonfires and firework displays and that they should continue?
Lord Sainsbury of Turville: My Lords, we do not believe that the case has been made for an outright ban. As the noble Lord says, millions of fireworks are sold and used safely each year and they represent a popular form of entertainment. Action we take must be taken against that background.
Lord Faulkner of Worcester: My Lords, I declare an unremunerated interest as president of the Royal Society for the Prevention of Accidents. In view of the fact that the number of casualties—that is, people requiring hospital treatment—following bonfire night last year rose by a staggering 40 per cent, does my noble friend agree that the problem of selling fireworks to

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children needs urgent attention? Furthermore, will he examine the new regulations introduced in Northern Ireland which severely circumscribe the conditions in which fireworks can be sold and displays can take place?
Lord Sainsbury of Turville: My Lords, clearly, under-age selling is an issue and we shall continue to do all that we can to prevent it taking place. So far as concerns Northern Ireland, it has recently been announced by the Security Minister at the Northern Ireland Office that permission to sell fireworks under the Explosives Act (Northern Ireland) 1970 will be withdrawn, which means effectively banning retail sales. In this case, as in others, the situation in Northern Ireland is slightly different. The issues there have focused on public order and threats to the security forces rather than on the issue of noise and nuisance, which are the problems in this country.
Lord Razzall: My Lords, following on the question from the noble Baroness, Lady Miller, does the Minister accept that there is significant concern regarding large fireworks imported from overseas, particularly from China, which I understand is the source of many of the very dangerous fireworks that come into this country? Will he indicate what the Government propose to do about the matter?
Lord Sainsbury of Turville: My Lords, as I said in answer to the noble Baroness, I shall check whether there is any evidence that there is a safety problem in particular areas. If that is the case, we shall look carefully to see what action we can take to stop up that hole.
Baroness Fookes: My Lords, first, I declare an interest as vice-president of the National Campaign for Firework Reform. Does the Minister believe that if fireworks were new, they would be allowed, given that they are somewhat dangerous? That being the case, I ask the Minister not to rule out the possibility of an outright ban on everything except public organised displays.
Lord Sainsbury of Turville: My Lords, it is always rather difficult to answer such hypothetical questions. There are many things that we happily enjoy which might well be banned in the current climate. As I said, at present we are not thinking in terms of an outright ban. We want to examine the issues of noise and nuisance, which cause a great deal of distress to many people as well as to their animals.
Earl Ferrers: My Lords, in the noble Lord's desire, quite correctly, to look after safety, can he ensure that the Government will not end up being spoilsports?
Lord Sainsbury of Turville: My Lords, I hope that I made it clear in my previous answer that we are not thinking in terms of an outright ban. This is a form of family entertainment which gives much pleasure. Equally, we need to look carefully at the issues of noise and nuisance which affect other families and their animals.

Hospital In-Patients: Benefit Reduction
2.46 p.m.
Lord Higginsasked Her Majesty's Government:
On what basis the amount of hospital downrating is calculated and by whom it is calculated.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, the reduction of benefit of a hospital in-patient is made by reference to a percentage of the basic state retirement pension, which is set out in legislation. The calculation is carried out by a decision-making officer on behalf of the Secretary of State for Work and Pensions.
Lord Higgins: My Lords, I thank the Minister for that Answer. However, will she tell the House when the quantitative estimate was last made? Is she aware that there is a widespread feeling among many people—some of whom are surprised to find that the downrating rule exists at all—that the actual amount deducted is not at all appropriate for the present situation? This has changed radically over the years in terms of house ownership, overhead costs and so on. Is there not a case for an impartial evaluation of what the actual amount deducted ought to be?
Baroness Hollis of Heigham: My Lords, the decision in terms of percentages was laid down in the Social Security (Hospital In-Patients) Regulations 1975. It was based on a percentage of retirement pension. As the retirement pension has risen, the percentage has, of course, risen with it.
The noble Lord asked whether the figures would be reviewed. As of a few months ago, we have been able to reduce the number of people caught by hospital downrating by changing the limit of a hospital stay before downrating occurs from six weeks to 13 weeks. As a result, instead of 35,000 people losing benefit, only 9,000 will do so in future.
Finally, the noble Lord asked me what percentage of income that may represent. For the average pensioner couple the amount of benefit reduction represented by hospital downrating is 5 per cent.
Lord Geddes: My Lords, who, or what, is a decision-making officer? Who decides who shall be a decision-making officer?
Baroness Hollis of Heigham: My Lords, the decision-making officer in this case is an administrative officer within the Civil Service in the local benefits office. The same official also decides eligibility for DLA, income support, JSA and similar related benefits.
Baroness Barker: My Lords, can the Minister confirm that the percentage to which she referred has in fact dropped from 40 to 38 per cent of state retirement pension? What steps is the department taking to inform patients in acute and intermediate

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care of their responsibility to notify housing benefit and council tax benefit offices of a change in circumstances under the current system and under the new system?
Baroness Hollis of Heigham: My Lords, the noble Baroness says that the percentage has fallen from 40 to 38 per cent. I am sorry to be a pedant about these matters, but the figure is 39 per cent. That is based on a percentage of retirement pension. If other benefits, savings income and income from occupational pensions are added in, it represents about 5 per cent of an average pensioner couple's income.
The noble Baroness makes an entirely valid point about those who may be in long-term or intermediate care beyond 12 months. As she will know, housing benefit runs for 12 months; thereafter, the application must be renewed. There is clearly an obligation on the department to ensure that pensioners in that situation are informed that they need to review their relationship with the local authority.
Baroness Finlay of Llandaff: My Lords, how much does the administration of the system cost? is the system of downrating cost-effective in proportion to the amount of money saved?
Baroness Hollis of Heigham: My Lords, the amount of money saved by moving to the 13-week rule—in other words, the 9,000 pensioners and others on benefit who remain in hospital for longer than 13 weeks—is in the order of some £40 million. The cost of administration is £4.5 million. Of that, only half a million pounds is actually associated with process—that is, putting the "flags" on the computer—and £4 million is associated with the point made by the noble Baroness, Lady Barker, which is that often people take time to tell us that they have gone into hospital. Therefore, £4 million of the £4.5 million cost comprises recovering overpayments. As I say, administration accounts for only half a million pounds of around £100 million-worth of benefit costs.
Lord Higgins: My Lords, I was surprised by the Minister's Answer. Does she accept that this has not changed since 1975, which is a long period of time, and that the percentage of the pension measure takes no account whatever of changes in the general pattern of life in terms of house ownership, whether people have refrigerators or whether the whole situation has changed? Surely we need an independent appraisal of the actual amount.
Baroness Hollis of Heigham: My Lords, the percentage is based on the provision which the noble Lord knows perfectly well is embedded in social security; that is, that there is not double provision. In other words, if you are a widow you do not receive a carer's allowance; if some of your food, heating and laundry costs are met by a hospital, you do not also receive payment for that. The percentage has remained the same; the actual costs have obviously changed because retirement pension and incomes have
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increased. It is because we recognise that people's methods of payment and how they organise their finances have changed since the ration book era that we have gone from six weeks' withdrawal of benefit to 13 weeks', thus allowing people who pay their bills monthly or quarterly to have ample time to adjust them.

Inter-Congolese Dialogue
2.51 p.m.
Viscount Craigavon: My Lords, on behalf of my noble friend Lord Sandwich, at his request and with the permission of your Lordships, I beg leave to ask the Question standing in his name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how they will help to revive inter-Congolese dialogue and peace prospects in the Great Lakes region.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Amos): My Lords, the inter-Congolese dialogue is a crucial part of the Lusaka peace process. That is why the Prime Minister has spoken to President Mbeki to thank him for his political and financial contribution and urged him to continue his efforts. At the same time we continue to urge all sides to resume talks immediately on an inclusive transitional government and impress upon them the desire of the people of the DRC to live in peace and security. It is the duty of all the parties to put aside their differences in pursuit of this goal.
Viscount Craigavon: My Lords, does the noble Baroness agree that it is extremely difficult for inter-Congolese dialogue to proceed constructively so long as neighbouring states park standing and occupying armies particularly in the east of the Congo to fight proxy wars and to plunder the mineral wealth which belongs to the Congolese people?
Baroness Amos: My Lords, I wish the noble Earl, Lord Sandwich, a speedy recovery. With respect to the inter-Congolese dialogue, and in particular the role played by other countries in the region, it is an essential part of the Lusaka peace process that neighbouring countries withdraw their troops. That is why the process is so important. Inter-Congolese dialogue is one aspect of it; the withdrawal of foreign troops is the second and DDRR R is the third. With respect to the exploitation of resources, we have pressed for the mandate of the UN committee to be extended. Its report is expected in July or August.
Lord Avebury: My Lords, as regards the UN panel of experts, have the Government noted the views that it expressed on the continued illegal exploitation of resources and in particular the presence of the Zimbabweans backed by troops in the Province of Kasai where they are illegally mining diamonds?

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Do the Government consider that the Security Council should publish the evidence on which the interim report has been based so that doubters who have already begun to question the UN panel, such as President Museveni of Uganda, could be reassured? Do the Government support the idea of a curtain of troops along the eastern borders of the DRC which was advanced during the recent Security Council mission?
Baroness Amos: My Lords, the report of the UN panel on exploitation of the DRC's resources is an interim report which outlines the procedure and process which have been adopted by the panel. As I said, we expect the final report in July or August. I anticipate that corroboration of what is in the interim report will be contained in that document. The UN panel will also consider the role played by all high value commodities, including coltan. I think that the point made by the noble Lord, Lord Avebury, with respect to the eastern DRC related to coltan. It will report at that time.
Baroness Rawlings: My Lords, I am sure that the noble Baroness is aware of reports of a number of human rights abuses in areas controlled by the RCD. Do Her Majesty's Government agree with many in the region that an international independent inquiry should be set up to investigate those allegations in order that the stalled peace process may move ahead? Does she also think that it is necessary that the UN strengthens the mandate of its mission in the DRC, MONUC, in order to avoid further violations of the fragile peace?
Baroness Amos: My Lords, we are very concerned about human rights abuses and about humanitarian standards in the DRC. That is a matter which is not confined to one side. We have registered those concerns. We have also contributed funds through NGOs to human rights projects in the DRC and the Great Lakes region. Through the United Nations Human Rights Commissioner we have worked to develop their capacity for monitoring the human rights situation. We shall continue to do that because, as the noble Baroness, Lady Rawlings, rightly pointed out, until the human rights situation is addressed, peace in the DRC and the Great Lakes region will be difficult to come by.
Lord Hylton: My Lords, does the noble Baroness agree that there should be penalties of some kind on those neighbouring countries which fail to withdraw their forces which are now partitioning the Congo? Does she see some prospect of getting purchasers of diamonds to refrain from buying plundered gems? Can anything be done about tropical hardwoods which are being illegally chopped down?
Baroness Amos: My Lords, the noble Lord will know that we have been part of the Kimberley process which is considering developing a certification
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procedure for diamonds so that diamonds which are mined illegally do not find their way on to the international market. We are awaiting the outcome of the UN panel report as we hope that there will be some recommendations in it on ways in which we might address exploitation issues with respect to other items including timber.
Lord Rea: My Lords, is my noble friend aware that one of the nastiest violations of human rights that is occurring in the Congo at the moment is the high incidence of rape perpetrated by marauding military personnel and not only on one side, as I believe she indicated? What is worse, it has been estimated that 50 to 60 per cent of those soldiers are HIV positive. Thus they are spreading the epidemic which is already severe enough. Is that not a further reason why the international community should apply a little more energy to persuade the inter-Congolese dialogue to intensify and to persuade those countries which have troops in the Congo to withdraw them?
Baroness Amos: My Lords, I entirely agree with my noble friend that the use of rape and sexual abuse against women and children is extremely distasteful. It is something that we are increasingly seeing in conflicts across the world. I also agree with my noble friend that the implications of that for the spread of HIV/AIDS are extremely serious. However, I say to my noble friend that along with the UN, our African partners and the European Union we have put a great deal of energy into the inter-Congolese dialogue process. At the end of the day a solution has to come from within the Great Lakes region itself. However, I believe the work that we have all done to support the dialogue process—I believe that the UN will become more involved at this point—is exemplary. International organisations, including the UN, but also the European Union and others, should be congratulated on the work that they have done.

NHS Foundation Trusts
2.59 p.m.
Baroness Gardner of Parkesasked Her Majesty's Government:
What plans they have for the introduction of foundation trusts in the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, following publication of a prospectus in July, we will select the first foundation trusts in the autumn with a view to their having shadow status from 1st April 2003 and, subject to legislation, being established in October 2003.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that reply. Will he clarify whether foundation trusts will be within or without the National Health Service? Does he agree with Unison

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that the approach will create a poor relation within the NHS, or with the noble Lord, Lord Blackwell, who, in an article, said:
"They will become, in all but name … institutions on the model of the voluntary and charitable trusts which Labour abolished, through nationalisation, in 1948"?
Lord Hunt of Kings Heath: My Lords, although I am a member of Unison, I do not agree with the comments that the noble Baroness reports. I believe that foundation trusts will have a status to which other trusts will aspire because it will give them much greater flexibility to do what is necessary to improve the level of patient care at local level. They will operate to NHS standards, they will be subject to NHS inspection and they will abide by NHS principles.
Baroness Northover: My Lords, does the Minister agree that constant reorganisation is demoralising and debilitating? Why does he think that the way forward involves further fragmentation and a multi-tier system, which the National Health Service tried to put behind it when it was set up and which was rejected more recently when we moved away from the internal market? Is it not about time the Government stopped supporting such gimmicks and started supporting, and providing continuity for, the NHS?
Lord Hunt of Kings Heath: My Lords, I am surprised by the noble Baroness's comments because during the passage of the National Health Service Reform and Health Care Professions Bill she and her colleagues—and other noble Lords throughout the House—constantly said that the Department of Health should stop micro-managing the NHS at local level. Our approach is intended to do just that. We have set up national standards and we have a national regulator. That provides the conditions and circumstances in which we can let local organisations in the NHS undertake many more freedoms and manoeuvres at the local level. That is why we are anxious to make progress with foundation trusts.
Lord Peyton of Yeovil: My Lords, would the Minister be good enough to explain what the function of the national regulator is and what possibility there is of his having a benign effect?
Lord Hunt of Kings Heath: My Lords, it is striking that until the Government introduced the Commission for Health Improvement, there was no system for setting national standards for or national regulation of the health service. We have secured that. That enables us to ensure that standards involving safety and quality are checked and reviewed. That allows us to give much more freedom at local level to local NHS organisations, which I know the noble Lord is keen to see happen.
Baroness Finlay of Llandaff: My Lords, will the Minister explain precisely the criteria by which foundation trusts will be assessed on their contribution
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in terms of education, training, research for the advancement of knowledge in medicine and the preparation of the workforce of the future?
Lord Hunt of Kings Heath: My Lords, we are working on the criteria. Essentially., the first wave of foundation trusts will be selected from among those acute trusts that achieve three-star ratings in July this year. Successful applicants will need to demonstrate their management capability and clinical support to make a success of NHS foundation trust status. They will also need to show that they will use their freedoms to demonstrate rapid progress in terms of delivering the NHS Plan. On the issue of teaching, research and the contribution to clinical academic medicine, we expect foundation trusts to play their part, as every other NHS trust in the country should do.
Lord Blackwell: My Lords, does the Minister accept that while this approach may be a welcome first step in reversing the Government's previous centralisation of initiatives and management in the NHS, it still leaves the majority of hospitals in the grip of a state-run bureaucracy? Does he accept the logic of the Government's view that if that approach is beneficial for a few hospitals, it should be extended as soon as possible to all hospitals'? Will he set out a timetable by which he might achieve that?
Lord Hunt of Kings Heath: My Lords, I am not going to set out a timetable, and it would be wrong to set a target for the number of trusts that should achieve foundation status by a certain time. I certainly agree that in the fullness of time many NHS organisations will take advantage of foundation trust status. However, it is also clear that they must meet tough criteria and standards before they can be given that status. It is important, as we work through the details, that the process by which trusts become foundation trusts is clear and transparent. Above all, we must ensure that patients are the winners.
Lord Glenarthur: My Lords, if a hospital trust becomes a foundation trust, to what extent will it be relieved of the administrative burden of sending as many returns as are necessary—I know of this from my experience as a former chairman of an NHS trust—to the central element; that is, the department? To what extent will national savings accrue on the administrative side?
Lord Hunt of Kings Heath: My Lords, we must draw a distinction between unnecessary bureaucracy—I am sure that we are all committed to reducing that—and the necessary investment in leadership and effective management. I suggest that one of the advantages of foundation trusts is that they make the decisions about where they spend their resources. In so doing, they also have to meet their contractual obligations. I hope that we will reduce any excessive numbers of prescriptive, central demands on those trusts. At the same tune, the whole purpose is to give foundation trusts much more room to manoeuvre at the local level.
Lord Tebbit: My Lords, is a mechanism envisaged to deal with the situation if one of the foundation trust hospitals fails to maintain its high standards?
Lord Hunt of Kings Heath: My Lords, the intention is that the national regulator—the Commission for Health Improvement, which will develop into the commission for health audit and inspection—will be able to regulate foundation trusts and intervene where necessary, perhaps in the case of financial difficulties. We must be very cautious about developing a mechanism by which, if there are difficulties or problems, there is the knee-jerk reaction of saying, "The Department of Health must intervene." Our view is that that is much better done through the regulatory body.

India and Pakistan: Arms Exports
3.7 p.m.
Lord Redesdale: My Lords, I beg leave to ask a Question of which I have given private notice, namely:
To ask Her Majesty's Government whether they will clarify the position about the export of arms to Pakistan and India.
Lord Sainsbury of Turville: My Lords, the Government's policy on arms exports to India and Pakistan remains unchanged. There is no embargo and no suspension. However, the consolidated national and EU criteria, which apply to all export licence requests, require the Government to take full account of circumstances in the region. In respect of India and Pakistan, the Government are keeping a very close eye on developments and are applying the criteria rigorously.
Lord Redesdale: My Lords, I thank the Minister for that reply. Does he agree that the escalation of hostilities leads to a threat of nuclear conflict, which, on the estimates given, could lead to the deaths of between 12 million and 30 million people? In that light, would the initiation by the Government of a total embargo on both countries be a strong indication of the Government's position? Will not the Government have to choose between the roles of peacemaker and arms broker?
Lord Sainsbury of Turville: My Lords, the Government's position is very clear and is known to the participants. Any action that we take has to be judged by its total impact on the situation and by its relationship to the role that we are playing in that part of the world.
Lord Jones: My Lords, what are the employment consequences of the Government's decision?
Lord Sainsbury of Turville: My Lords, as we have made no changes, there are no employment conditions.
Baroness Miller of Hendon: My Lords, I am most grateful to the Leader of the House for allowing this
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PNQ, particularly as we all had a letter only this morning from the Foreign Secretary to say that Parliament was in recess. I heard what the Minister has said, but nevertheless there have been different statements from No. 10 Downing Street, from the Department of Trade and Industry and from others. Given that there seems to be confusion at the very heart of government, does the Minister not agree that that is the worst possible background for the Foreign Secretary's visit to India and Pakistan? Can the Minister tell us whether there have been consultations with the Society of British Aerospace Companies, BAe Systems and the Defence Manufacturers Association? Does he agree that this confusion, which I maintain is a confusion, is very bad indeed for British industry and particularly bad for British manufacturing? Moreover, as the noble Lord, Lord Jones, said, the confusion has an impact also on employees. This morning, I believe, or yesterday, Sir Ken Jackson said that 2,500 jobs would be at risk if, for example, the Hawk were halted.
Lord Sainsbury of Turville: My Lords, I think that I have made the Government's position very clear in my Answer. I again repeat that there is no embargo and no suspension. We shall examine all export licence applications from both India and Pakistan against the consolidated EU and national arms export licensing criteria. It is a very grave situation and we need to proceed very carefully. We are always in discussions with the industry on these issues, and we have been in discussions with the industry in this instance.
Baroness Williams of Crosby: My Lords, while the question of jobs is very relevant in most circumstances, we are teetering on the edge of what could be a new, nuclear war with incalculable consequences not only for South Asia but for the whole of the world. Will the Minister therefore consider again whether a clear embargo on arms exports to the two countries, imposed by a country which has considerable influence on both countries as a fellow Commonwealth member, would be appropriate and would send an appropriate signal to the two protagonists—which will have to make up their minds in the next few days whether to allow the situation to spiral out of control?
Lord Sainsbury of Turville: My Lords, clearly the Government's main consideration is the impact of our actions on the very grave and dangerous situation in that part of the world. That is our primary—indeed our only—consideration. At this point, jobs are not a consideration. We are concerned about the impact on that part of the world.
Lord Campbell-Savours: My Lords, does not the public controversy now surrounding the affair only further point to the need to establish a defence exports scrutiny committee—the DESC—which has been promoted in the other place and in this House? Indeed, it is supported by 310 elected Members of Parliament. Why cannot we now have this committee to deal with these matters?
Lord Sainsbury of Turville: My Lords, I would simply point out that no licence is currently being

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considered for the main arms. The arguments against DESC, and the possibilities of delay with the consequent difficulties, have been well rehearsed in debates on the Export Control Bill. I do not think that it would add anything in these circumstances.
Lord Merlyn-Rees: My Lords, when could the first deliveries of Hawk training aircraft be expected to go to the Indian subcontinent?
Lord Sainsbury of Turville: My Lords, as there is no application for these aircraft at the moment the issue does not arise.
Lord Stoddart of Swindon: My Lords, if hostilities break out between India and Pakistan, what will be the position on the provision of spares and replacements for arms already supplied to those countries?
Lord Sainsbury of Turville: My Lords, in such situations, and at this point, it is impossible to specify what action would be taken. Obviously it would depend on the exact circumstances at the time.

Millennium Dome
3.14 p.m.
Lord Strathclyde: My Lords, with the leave of the House, I rise to ask the noble and learned Lord the Leader of the House to give his reasons for having rejected a Private Notice Question from my noble friend Lady Blatch on the question of the Dome. For the past three days or so, the media have been full of speculation about the future of the Dome. The noble and learned Lord, Lord Falconer of Thoroton, is a Member of this House; as we have heard, the House of Commons is not sitting. I wonder if the noble and learned Lord the Leader of the House could give an assurance that, before we rise for the Jubilee weekend, he will ask his noble and learned friend Lord Falconer of Thoroton to come to the House to give us a Statement on the current position so that it can be fully debated and we can go away for that recess in the full knowledge of what is intended for the Greenwich peninsula.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, the noble Lord, Lord Strathclyde, did indicate to me that he would be asking whether there would be a Statement to Parliament after the deal has been signed. No deal has been signed; negotiations continue. I think that your Lordships will agree that the time to make a Statement to the House is once the deal has been signed. The Government will indeed make a Statement to the House as soon as a deal has been signed. Lacking the gift of prophecy, I cannot say anything about this week.
Baroness Blatch: My Lords, I am grateful to the noble and learned Lord for his Answer to my noble friend Lord Strathclyde. However, as most noble Lords know, the noble and learned Lord,
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Lord Falconer, gave freely of his time to television and radio throughout the weekend to discuss details of these negotiations. He also said that he would come to Parliament. How does that square with the comments that the noble and learned Lord has just made?
Lord Williams of Mostyn: My Lords, it is perfectly consistent, but I repeat myself: no deal has been signed. I repeat: the time to make a Statement is once the deal has been signed; and I repeat: we shall make a Statement when the deal has been signed.
Lord Rotherwick: My Lords, bearing in mind that we have had numerous Dome deals, none of which has come to fruition, might not this be another deal that will go by the way? In the light of that, would it not be more sensible if the noble and learned Lord we are talking about could come and suppress our worries about the wonderful Greenwich peninsula?
Lord Williams of Mostyn: My Lords, the noble and learned Lord we are talking about knows perfectly well, as every schoolboy knows, that a deal which is not completed is not a deal.
Lord Stoddart of Swindon: My Lords, will the—
Lord Tebbit: My Lords, why was the noble and learned Lord—
Lord Stoddart of Swindon: This side. Noble Lords: Which side?
Lord Stoddart of Swindon: This corner then. Will the Leader of the House simply tell us whether the deal will be irrevocable once it has been signed? If it is irrevocable, what is the point of reporting to Parliament, as Parliament will not be able to do anything about the deal anyway?
Lord Williams of Mostyn: My Lords, all deals which are contractually binding are just that—contractually binding. They can be unpicked only if the parties agree. If the parties do not agree, there are legal sanctions. The point which I would have thought is self-evident is that, if one is doing a deal, one tries to do the very best one can without disclosing all one's thoughts. I should have thought that that was commercial common sense and prudence.
Lord Tebbit: My Lords, will the noble and learned Lord explain why the noble and learned Lord, Lord Falconer, was so free of his time in answering journalists' questions on television but is so shy of giving any of his time to come here and answer the precisely similar questions of Members of this House?
Lord Williams of Mostyn: My Lords, not being a television watcher or weekend radio listener, I do not know exactly what was said. However, I would assume that my noble and learned friend Lord Falconer was answering questions about the Dome generally. He

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would not have been in a position to give details of the deal. If I am wrong about that and your Lordships are able to point to a single syllable where the noble and learned Lord we are talking about disclosed details of the deal, I would be very happy to read it.
Lord Renton: My Lords, bearing in mind that this is a matter of public interest in which a great deal of public finance is involved, is it not right that Members of this House and those of another place should have the right to influence the Government's attitude in the negotiations?
Lord Williams of Mostyn: My Lords, the one thing that is not lacking in this context is advice from your Lordships or from the other House.
Lord Peyton of Yeovil: My Lords, the noble and learned Lord is always so very helpful and courteous to the House. Perhaps he will extend the huge benefit of promising us two or three minutes of the time of the noble and learned Lord, Lord Falconer.
Lord Williams of Mostyn: My Lords, I have already done so three times. However, I shall try again. My familiarity with the English language is limited, of course, so perhaps I should read it out:
"No deal has been signed [full stop] The time to make a Statement to the House is once the deal is signed [full stop] The Government will make a Statement to the House as soon as a deal is signed [full stop]".
No further holes in the Dome will be dug.
Lord Peyton of Yeovil: My Lords, I omitted from my question the words, "this week, please."
Lord Williams of Mostyn: My Lords, again, I do not control much in your Lordships' House, and the calendar is not among the items that I do control. This week is ticking to its inevitable demise. I do not know—I cannot say—when the deal will be signed. If your Lordships are of the view that the House should be recalled, I shall mention it to the Chief Whip.
Lord Mackie of Benshie: My Lords, perhaps the noble and learned Lord will comment on past deals. In view of the record on past deals, how can he be so sure that this deal will be signed?
Lord Williams of Mostyn: My Lords, I am not sure. The one thing about which I am sure is that I am not sure about the Dome.

Education Bill
3.21 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
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Moved, That the House do now again resolve itself into Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 72 [Interpretation of Part 6]:
Lord Northbournemoved Amendment No. 262:
Page 49, line 21, at end insert—
""the pre-foundation stage" means the stage in a child's educational development between birth and the age of three;"
The noble Lord said: In moving Amendment No. 262, I shall speak also to Amendments Nos. 263 and 265. Amendment No. 262 would formally establish a pre-foundation stage to education in this country. On reflection, that stage might more appropriately be called the "family learning stage". Amendment No. 265 would define the pre-foundation stage in terms of the age of the child and it would also encourage the Secretary of State to give guidance to parents as to how they can fill their role most effectively as their child's first educator.
This Government are, indeed, to be congratulated on making nursery education available to all three and four year-olds. But education does not start at the age of three; it starts at zero. The importance of what a child learns in the first year or two of its life—the period of education in the family—cannot be overestimated. Perhaps I can make my point, without taking up too much of the Committee's time, by telling a brief anecdote.
Three weeks ago I was left in charge of a grandson who has just passed his first birthday. He took a fancy to some brightly coloured objects on the table—fragile objects, as it happened. He worked out that by climbing on the sofa and then on to the arm he could reach them. So, with a great deal of repeated effort, he climbed up and reached out. I said, "No, Alfie". He turned and looked at me. He worked out whether or not I meant it and then continued to look at me to see whether I was going to look away. When I did not, he tried again. I said, "No, Alfie". Therefore, he had another idea and beamed a lovely two-toothed smile at me in the hope that that would make me give way.
I foretell with confidence that when that child goes to school he will have the necessary confidence and social skills to cope with the problems of entering nursery or primary school. He will also have the background of early learning which will ensure that he succeeds. That child is a privileged child because during his first years he will have had the time, the love, the stimulation and the security which he needed from his parents or, when they were both working, from first-class childcare.
I am sure that the Committee will share with me the wish for every child in this country to have those advantages. Noble Lords will ask whether that is realistic and, in terms of 100 per cent success, clearly it is not. But we could do a great deal better than we do at present in that respect.

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Nearly all parents start out by wanting to do the best for their child. Many are hungry for help or desperate for support. Many excellent initiatives, such as Homestart and PIPPIN, have shown that help can be given without stigmatising the parents. These two amendments would give the Secretary of State for Education the power to provide support, help and guidance to parents in their role as their child's first educator.
I now turn briefly to Amendment No. 263. This amendment seeks to make it clear that grandparents and other members of a child's extended family are not precluded from providing nursery education to that child. I beg to move.
Baroness Ashton of Upholland: I am most grateful to the noble Lord, Lord Northbourne, for raising the issue of the crucial—as I am sure all Members of the Committee will agree—period in a child's development between birth and the age of three. I assure him that I agree that this is a very important stage in children's lives. We know that development and learning are rapid during those years, and the support given to a child at that stage can reap many rewards later.
Therefore, I hope that I can assure the Committee of the Government's real commitment to finding ways of supporting the crucial early years of a child's development. We certainly aim to encourage early years workers and parents to recognise and support that development in ways that are appropriate to the particular needs of babies and toddlers.
We are, in particular, learning the lessons from Sure Start. Parents are very much involved in the management and delivery of local Sure Start programmes. As of this week, 263 such programmes have been approved and are delivering services to children under the age of four and their families.
However, we are not convinced that the creation of a pre-foundation stage of the national curriculum for children between birth and the age of three would be either helpful to, or welcomed by, parents. The needs and interests of babies and toddlers are, of course, very different from those of three, four and five year-old children in the foundation stage.
Of course, I agree that parents and grandparents have a key role in their children's education. Indeed, the foundation stage guidance emphasises the importance of that role in providing a child's first and enduring level of education. We shall continue to do all that we can to encourage and support that.
However, I am not convinced that guidance from the Secretary of State to parents about how they should best carry out that role at home would be appropriate. In the main, they are best placed to judge how to meet their particular needs and interests in these earliest years.
I turn to Amendment No. 263, which seeks to extend the duties for the foundation stage to parents. Clause 73 will impose duties to implement the foundation stage curriculum on all those outside the maintained school sector who are receiving public funding to
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deliver early years education. We believe that that is right and proper. We are funding early years education places in the maintained, voluntary and private sectors in order to give parents choice. If parents choose, for example, a private nursery or playgroup, they need to be assured that their child will have the same opportunities for high quality learning experiences as they would in the nursery or reception class of a maintained school. This clause will give them that reassurance.
As I said, the foundation stage guidance emphasises the importance of parents as the child's first eduicator. It encourages all early years settings to work closely with parents and sets out the key role that they play in young children's education. We shall continue to do all that we can to encourage and support that. But I do not believe that we should be extending the duties of the foundation stage to parents and grandparents.
I hope that with the reassurances that I have given, and by pointing to the Sure Start project, the noble Lord will see that we have been attempting to do what he is looking for and will feel able to withdraw his amendment.
3.30 p.m.
Baroness Howe of Idlicote: The Minister will forgive me because I should have risen to speak earlier. I thought that all three amendments would be taken together. They allow the maximum flexibility for an education authority to provide financial and other help to families where—and only where-—it is thought that the earliest-possible intervention could make a difference in allowing a child to benefit more fully from later compulsory education. Although health and social care are clearly important at this early stage, so too is educational input.
A vulnerable child's ability to benefit more fully from the education system can change his life and help the Government to achieve their aim of getting more bright children from deprived backgrounds into university.
In Committee on 14th May (at cols. 264 and 265 of the Official Report) the noble Earl, Lord Listowel, stressed that similar support will be needed for looked-after children—whose educational performance is currently abysmally low—in the form of admissions forums and so on.. Amendment No. 262, by deliberately focusing on the early years, when good attention could begin, would prevent at leant some children needing to be taken into care. All that will need more resources, co-ordination and more locally based social services, health and police resources in identifying children most at risk at an early stage.
The Minister has spoken about Sure Start. On a previous occasion, there was a question mark over which department's purse funds this kind of early help, which I believe amounts to £499 million. Can the Minister give concrete examples of Sure Start's success and the ways that such initiatives are proving of benefit to children and communities'? Are the considerable sums needed available, including for educational expertise? If at least some deprived

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children and their parents can be equipped early enough to benefit properly from the education system, that will undoubtedly assist them, the economy and communities. The horrendous prison population might decrease instead of increase. We were told yesterday that the current prison population of 72,000 is the highest yet—and of the appalling financial cost per prisoner of £31,000 per annum.
I hope that the Minister will reconsider the importance of early educational input into a special group that has been causing problems for the country's education system for more years than I like to think about—certainly through all my adult life.
Lord Jones: My noble friend the Minister spoke persuasively but I ask her to describe in some little detail what the Government have done, in the two Labour administrations since 1997, for the youngest children. There may be a good story to tell in response to these important amendments.
What investment, in terms of finance and professional staffing provision, has been made? Does my noble friend have any figures? I have in mind the livelihood of children from deprived areas in the great cities and some rural areas who have only one parent in their household—together with children from estates and streets where there is widespread drug abuse.
I am sure that my noble friend the Minister listens hard to the noble Lord, Lord Northbourne. When he last spoke several days ago, he referred to the developing science of the circuitry of the mind and predicted advancements. Within days, a science programme on Radio 4 discoursed at length on that subject. The current edition of the prestigious magazine the Economist devotes more than a page to the same topic. I imagine that my noble friend the Minister is listening most sympathetically and that her reply will be helpful.
Baroness Blatch: I hope that the Minister agrees that some of the most caring provision in services to very young people is that of playgroups, which have been extremely vulnerable in recent years. Playgroups work well with social services and mainstream schools, and they involve parents daily in a practical way. Playgroups are subject to inspection and co-operate with the local community. Nevertheless, by 2004—well intentioned though this may be—the Government plan that for every 10 children, including in playgroups, there will be a fully qualified teacher.
One of the glories of playgroups, particularly in rural areas, is that parents can afford to send their children to them. Come 2004, there is no way that those same parents will be able to afford a fully qualified teacher for every 10 children. At a time when playgroups provide such a good service to young children, particularly in rural areas, they will be made even more vulnerable by a well-intentioned policy.
Why are excellent child minding services provided, for example, by the Soho Family Centre refused recognition by Ofsted? It maintains that under existing
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legislation, it cannot register child minders who work for such centres. Is it the Government's intention to change that situation?
Baroness Walmsley: I give my general support to this batch of amendments. Childcare experts emphasise the importance of identifying in early years appropriate activities for children at different stages of development—particularly the stage that a child has reached. That can be done only by experts. The designation of the different stages in a child's development is helpful in that regard.
Baroness Ashton of Upholland: I obviously responded too quickly. Nothing that I have said suggests other than that we recognise the importance of child development from nought to three years. I agree wholeheartedly with the noble Baroness, Lady Blatch, about the role of playgroups.
The question posed by the amendments is whether or not we should formalise the role of playgroups as part of education. In our view, that would not be appropriate. Equally, we do not believe that the department should regulate education in the home.
Perhaps I can put the specific amendments to one side for a moment. As part of the Sure Start programme, it is crucial in the early years to reach children who are disadvantaged and to support them. Sure Start is about supporting parents in parenting. It is about helping them to become more able to support their children, to introduce their children to books and to educate and to support parents, before and after a child is born.
We believe that it is a good programme. It is also a cross-cutting programme, which is probably why there was confusion about the funding. It is the responsibility of my honourable friend the Minister responsible for public health, who reports to my right honourable friend the Secretary of State for Education and Skills. She is the Cabinet Minister responsible. The group of Ministers, of whom I am currently one, who sit on the Sure Start group are trying to ensure that the Sure Start programmes address the full range of issues, including the fact that some of our deprived children live in rural communities as well as in the inner cities. Indeed, there is the over-arching issue of how to reach the maximum number of children, which leads us to consider how we make the programme appropriate in the mainstream.
There are 263 programmes. A further £948 million was announced in the July 2000 spending review and the plan is to reach a third of all under four year-olds living in poverty by 2004. I know that that means we shall not reach two-thirds of those children, but we recognise that the programme will grow.
On the point raised by the noble Baroness, Lady Blatch, in relation to playgroups, I was fortunate to be at the Pre-School Learning Alliance's annual meeting on Friday where 900 people gathered to talk about the future. I am delighted that we have worked constructively and creatively with them to develop playgroups so that some can become neighbourhood nurseries if they so wish and further develop their role.

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We want to ensure that the quality that the noble Lord, Lord Northbourne, and the noble Baroness, Lady Howe, are seeking in relation to experience is recognised by all organisations and by all groups. That is why we are aiming to develop a qualification and to ensure that people working with those children are qualified to do so. We are keen to ensure that people train at the same time as working. We want to recognise the skills of some people who do not have a formal qualification and provide them with experience. We are working in conjunction with those organisations.
The noble Baroness, Lady Blatch, makes an important point about ensuring that we proceed in a way that does not prevent children and families participating. I shall ensure that that is the way we approach the matter. The Soho family centre is affected by an amendment which follows shortly, but there is no doubt that we want the Soho family centre to register with Ofsted. There is an issue as to the description of a child minder. On 11th June the head of early years at Ofsted, Maggie Smith, will visit the centre. In no way would we allow the centre not to continue. It is simply a matter of registration. I can perhaps deal with that matter under the appropriate amendment. I hope that that will satisfy the noble Baroness for the moment.
Baroness Blatch: On the playgroups issue, at the moment the parents raise enough money to pay the playgroup leader who is trained and the helpers. Often the helpers give their time freely because they are the parents of the children in the playgroup. A playgroup that serves, say, 40 children, would have to find between £80,000 and £100,000 year on year. How on earth will that bill be met?
Baroness Ashton of Upholland: In relation to the work with the Pre-School Learning Alliance, we are seeking to develop playgroups so that they can access funding from the Government and develop themselves. They tell us that that is what they want. We want people to work towards qualifications, not so that they become too highly paid for the market, but so that there is recognition of the qualifications that many have but which are not formalised. Our intention is not to make costs prohibitive. I am happy to write to the noble Baroness to give her more detail, but that is the intention.
3.45 p.m.
Baroness Carnegy of Lour: Can the Minister say how many pre-school playgroups have disappeared since the Government came to power?
Baroness Ashton of Upholland: I am unable to give the noble Baroness that figure for two reasons. I do not have the brief that gives me the specific figures on playgroups and, more importantly, many playgroups have not disappeared but have changed. They have altered because they want to transform themselves, under the funding we have made available, into a
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different format. I am always willing to give more detail to the noble Baroness in writing if that would be helpful.
Lord Jones: Would my noble friend repeat her courteous and helpful reply in relation to funding? It is possible that she hurried a little too much over what I believe may be good news.
Baroness Ashton of Upholland: I apologise to my noble friend if I hurried. I said that there was a further £948 million announced in the July 2000 spending review.
Lord Northbourne: Before I withdraw the amendment, I want to make two points. First, wish it were true that parents are best placed to judge what their children need. Most parents are, but there are teenage parents, single parents who are struggling and unable to cope, and parents who do not know how to cope with their children's sleeplessness or disobedience. Those parents need help. I do not suggest that we should interfere or intrude, but they need help.
Secondly, the noble Baroness mentioned Sure Start. She has kindly said that I may talk to the officials about that; I am sure that I shall learn much more before Report stage. Although Sure Start is excellent, I am interested that the Department for Education and Skills should take on board the problem. In fact it is a problem for three different departments: the Department of Health, the Department for Education and Skills and the Home Office. If youngsters are excluded from school they end up on the streets. Although the problem is much more important in terms of education than health, the Department of Health is putting up the money. I would like that to be undertaken by the Department for Education and Skills. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 72 agreed to.
Clause 73 [Meaning of 'nursery education' and related expressions]:
[Amendment No. 263 not moved.]
Clause 73 agreed to.
Clauses 74 and 75 agreed to.
Clause 76 [Basic curriculum for every maintained school in England]:
Baroness Sharp of Guildfordmoved Amendment No. 264:
Page 52, line 4, at end insert—
"() Where the Secretary of State proposes to make an order under subsection (3) that would affect the education of disabled children and children with special educational needs, he shall first consult such persons as appear to him to be appropriate."
The noble Baroness said: In moving Amendment No. 264 I shall speak also to Amendments Nos. 268, 276 and 280. These four amendments deal with the issue of special educational needs in the curriculum. This part of the Bill rewrites many of the previous provisions of the national curriculum but introduces

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greater flexibility, particularly at key stage 4. While there has been a welcome for some of the proposed flexibility in the national curriculum, those concerned with special educational needs have a wide range of concerns about the extent of those flexibilities. Those concerns have to be seen in the context of what the national curriculum is perceived to have done for special education and for those with difficulties.
The national curriculum is widely perceived as having been the single most significant factor in improving special education in the past 14 years. In that time, imaginative teaching has demonstrated that it is possible to teach children with learning difficulties knowledge, skills and understanding that would not have been thought possible only a few years ago; for example, concepts such as evidence in history can be and are taught to children with learning difficulties through creative practical activities.
The concern is that if there is less emphasis to provide all the different aspects of the national curriculum, there will be less pressure to rethink some of our stereotyped ideas about what children with special educational needs can learn. Leaving those assumptions unchallenged in the future may lead to under-expectation of children with special educational needs and a consequent loss of entitlement.
There is a guarded welcome for the new emphasis on vocational training at key stage 4, but, again, there are equivalent concerns that low expectations of children with special educational needs will mean that they are placed in groups that have reduced access to more academic subjects. They may thus receive an impoverished curriculum mix compared with other pupils.
When these proposals are combined with the potential for earlier specialisation and the increase in specialist schools where a decision at the age of 11 may determine areas where a child subsequently specialises, there are even greater grounds for concern. The greatest concern of all is that the power to vary the national curriculum is concentrated in the hands of the Secretary of State with little or no duty to consult on significant aspects of these curriculum provisions. In issuing orders in respect of some of the provisions in this part of the Bill, the Secretary of State is required to refer the proposals to the Qualifications and Curriculum Authority. In turn, it is required to consult with a range of different groups and individuals.
But as regards some of the duties there is no such requirement, and in particular Clause 82 appears to enable the Secretary of State to amend or suspend the national curriculum at key stage 4 without any consultation. The Special Educational Needs Consortium is particularly concerned that where an order is made there should be an opportunity to consult on the likely impact on education with special educational needs.
Therefore, all these amendments seek to make sure that there is some form of consultation over these changes in the curriculum. We would like some reassurance from the Secretary of State that she will
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endeavour to provide such consultation. Is our reading of Clause 82 correct that the Secretary of State does not have to consult before using these powers? Should not the Qualifications and Curriculum Authority be consulted about any possible orders? Should there not be opportunities to consider the impact of any orders on particular groups of vulnerable children by consulting with the relevant groups and individuals? I beg to move.
Baroness Ashton of Upholland: We have already had discussions about the need to consult those concerned with the education of disabled children or children with special educational needs. Again, I would like to make it clear to Members of the Committee that we have absolutely no disagreement with the intentions behind these amendments. It is, of course, right that all parties with an interest in the education of all children, not just children with special educational needs or disability, should be consulted on any proposal to add or alter the requirements of the curriculum. That is what we intend to do. We certainly expect to consult on any order to be made under Clause 76(3) or Clause 82, ahead of laying the draft instrument for the approval of both Houses. I can assure Members of the Committee that this will involve all relevant interests and will, of course, include those with particular interests in the needs of children with disabilities or those with special educational needs. As Members of the Committee will be aware, orders under these clauses will be subject to the affirmative procedure as set out in Clause 203.
As regards Amendments Nos. 268 and 276, I believe that the case is even clearer. Consultation with both the Qualifications and Curriculum Authority and other interested parties is already required under legislation being re-enacted in this Bill prior to any order being made under either Clause 79 or Clause 80 in the Bill. Clearly, any decision to amend either the foundation stage or the core and foundation subjects to key stages 1 to 3 would apply equally to able-bodied children as well as to children with special educational needs or disability. Consultation will occur with all bodies or persons representing the interests of all children.
In addition, government Amendment No. 365, if it is acceptable to the Committee, will ensure that any proposed changes under Clause 79 will also be subject to the affirmative procedure. The requirement already exists in this legislation as regards Clause 80(6). I hope, therefore, that in the circumstances the noble Baroness will feel able to withdraw her amendment.
Lord Jones: Does my noble friend have knowledge of any government programmes designed to enhance the status of teachers practising in the field of special needs? Their status is absolutely vital if the pupils with specials needs are to have the best chance.
Baroness Ashton of Upholland: The status of all teachers is that they are all responsible for working with children with special educational needs. It is very important that when we train our teachers we enable them to work effectively with such children. The noble Lord will be aware that within schools there are special educational needs co-ordinators who play a crucial role in supporting children, and often their families and other teachers in providing that support. We also want to ensure that our teaching assistants are able to work effectively with children with special educational needs and constantly look at how—there is the implementation group within the department which I am proud to chair—we can ensure that we support our teachers most effectively, where possible.
Another example I give the noble Lord is the role of specials schools. We are working closely with them to examine how best the expertise which, on occasions has been locked away in those schools, is more available in the mainstream and at how they are able to work more closely with us to enable children to participate in the mainstream where that is appropriate. In addition, we are working to offer that expertise to teachers. I hope that that gives the noble Lord a flavour of the work that we are doing.
Baroness Sharp of Guildford: I thank the Minister for her very reassuring reply on these issues. As she said, we have debated special educational needs at other times. She has again given us assurances on a wide range of topics. I am delighted to have her assurances on the curriculum. It is very important indeed that we do not lower aspirations here. As has been said, many teachers have been surprised at what has been achieved by some children when set high targets. With the Minister's assurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. Clause 76 agreed to.
[Amendment No. 265 not moved.]
Clauses 77 and 78 agreed to.
Clause 79 [Curriculum requirements for the foundation stage]:
[Amendment Nos. 266 to 268 not moved.]
Clause 79 agreed to.
Clause 80 [Curriculum requirements for first, second and third key stages]:
[Amendments Nos. 269 to 274 not moved.]
Lord Northbournemoved Amendment No. 275:
Page 54, line 11, after "citizenship" insert "and social responsibility"
The noble Lord said: In moving this amendment I shall also speak to Amendment No. 277. These two amendments are tabled to draw attention to the risk of too narrow an interpretation of the term "citizenship" in the citizenship curriculum.
There appears to be two schools of thought about what is meant by citizenship in this context. There is the narrow interpretation favoured at present which
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considers good citizenship as mainly promoting active and informed participation in the democratic process. Admirable as that is, there is also a wider view which I favour: it sees citizenship as being the process of being a good citizen.
There are many choices within the law which a citizen can make and which affect the lives of others. Many of these choices affect the lives of the vulnerable, the aged, disabled and young children. If we believe that the welfare of our society as a whole depends on most people making unselfish decisions, at least some of the time, it is particularly important that young people, as they grow up and look forward to adulthood, have the opportunity to think about such issues as the importance of giving as well as taking, of accepting responsibility as well as claiming rights. These issues can be best explored through well-led and well-informed discussion. Manifestly, that must take place in the latter years in school.
This part of social education should not be left to the voluntary PSHE curriculum, but should have the status of being part of the mandatory citizenship curriculum. I beg to move.
4 p.m.
Baroness Howe of Idlicote: I am very glad indeed to have added my name to this amendment. I am also very glad that citizenship will be on the compulsory agenda from September. Early instruction in citizenship should, and I hope will, play a major role in reinforcing the Government's aim of inclusiveness; for example, for all to feel very much part of the country that they live in.
Furthermore, it has never been a better time to introduce it. We have probably the largest percentage ever of would-be immigrants. They will add, if and when they are accepted, talents and cultures to enrich our society. It is good to know that their children, together with those born in the UK, will have this early opportunity to learn about their rights and about the responsibilities which are involved in being a citizen of this country. The amendment seeks to encourage the Minister to emphasise the responsibilities side of the relationship.
On 17th April, the Minister, in reply to my Question for Written Answer, kindly explained the bones of what would be taught under "citizenship". The three main strands are: first, political literacy; secondly, social and moral responsibility; and, thirdly, community involvement. She also pointed me to the appropriate website, which I found less than enlightening.
I turn to the three strands of citizenship. Certainly political literacy is vital. Today's children are tomorrow's citizens. They should not only know about, but should also, from an early age, be involved in democratic processes—and, it is to be hoped, value them. Those processes are there to safeguard their freedoms. They should also—I refer to previous arguments in Committee—become involved in those areas that directly affect them, such as school governing bodies and so on.

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However, I want to emphasise social and moral responsibility and community involvement. This country has a long and valued tradition of voluntary work. I am glad to see that increasingly children and young people are being encouraged by their schools and universities to play an active practical part in helping those from deprived backgrounds to achieve their full potential. Quite apart from the effect on the recipient of such help, the value to the individual young person so engaged in that voluntary work is immeasurable, and, I believe, lasts throughout his life.
The other day I was at Stamford University. I sat next to a young man who was personally much involved in this kind of work. He told me about a particular form of social entrepreneurship where the lowest 10 per cent of society—drug dealers, former convicts and so on—were involved in helping one another to emerge from that state of affairs.
In sending me more details about this activity, he drew attention to his own dilemma. He said: "I feel very privileged to have been allowed to get involved in all this. But I worry a little that, as life goes on and other responsibilities come my way, I might actually forget all that I have learnt and not be as actively involved". It is my belief—and I replied to him on the point—that he will never forget his experience at that personal practical level. That will be the benefit in encouraging this side of affairs.
There is one area of citizenship which has not been stressed but which I hope will be taught. It is the social responsibility of being a parent—we have had some discussion about that aspect already—and the duties that this imposes on us all. Today is a particularly appropriate moment to discuss the subject in view of the reaction of one parent and her children to the final sanction of imprisonment, which was imposed for not sending the children to school. It is a salutary lesson as a final sanction, and one which one gathers is having an effect in some other areas too. But all our best efforts surely must be aimed at creating an early awareness of our parental duties.
I would argue that none of us is born a good parent. Most get by on instinct and with help from the wider family. But for those from already vulnerable backgrounds, who no doubt are living also in fairly inadequate circumstances, the early support mentioned earlier could make a great difference to how they carry out their responsibilities.
Finally, I hope that the teaching of citizenship leaves our young people with tolerance for the views of others and a belief that their views and those of others can be accommodated in rational discussions. That is part of freedom of speech—the essential ingredient of a real liberal democracy.
I have another tiny anecdote from my period as a very mature student at the LSE. It was one that made me quite proud. The students were somewhat stroppy about not wanting to hear from members of a political party that they had taken against. The quiet fury of the academics from that establishment at the prospect that there should be a ban in any sense or that they should
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be shouted down, epitomised the kind of approach that we all should have if we value democracy. I hope very much that the Minister will emphasise the social responsibilities as well as the rights—those are important too—of citizenship.
Lord Jones: To marshal arguments against the teaching of citizenship and social responsibility would be very hard indeed. None of those words is overtly political. I have a brief question for my noble friend. How will the Government ensure that the teaching of citizenship, and, I hope, social responsibility, is impartial?
Lord Peston: My noble friend has said that it is difficult to marshal arguments against the issue. I am about to do that—
Lord Jones: With ease.
Lord Peston: I hope with ease. I am obviously very sympathetic to what the noble Lord, Lord Northbourne, and the noble Baroness, Lady Howe, have said. My difficulty is that I am a traditionalist with regard to education. I want our young people to be good citizens. Clearly, we all believe that social responsibility should permeate everything that goes on in the school. Indeed, these are matters regarding the ethos of the school. But my difficulty is—and this is a pass which I imagine that we have sold before—that I simply do not see citizenship and social responsibility as subjects. I hate to emphasise this to Members of the Committee, but, as a conservative person, with a small "c", I think that children go to school to learn and that teachers work in schools to teach.
We should like those concepts to permeate what goes on in the schools. The Bill refers to "foundation subjects". The use of that language makes no sense to me, even though it is in the Bill. It refers to "foundation subjects". I repeat, citizenship and social responsibility do not seem to be subjects. So, I appreciate that the pass has been sold. The Government have bought all these ideas and so on, but— someone has to utter a semi-academic traditionalist view—I should like schools to teach subjects so that young people leave knowing something about them, I hope in depth rather than superficially. Therefore, not only am I not sympathetic to extending the concept here—much as I am totally in favour of that happening as part of the school—but, if I could find a way, I should like the citizenship part taken out as well.
Lord Dearing: I am most grateful to the noble Lord, Lord Peston, for the way he enlivens our debates. I do not know what we would do without him. But his suggestion that citizenship is a subject without substance surprises me. Jonathan Sacks, the Chief Rabbi, gave a lecture some years ago—I cannot precisely recall when—in which he derived the roots of our civilisation from the Greeks as a political entity founded and expressed through law on the one hand, and from Hebrew culture, based on family and shared obligations—what we might call social responsibility—on the other.

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It matters in a society—a western civilization—increasingly based on the individual that we should emphasise as a complement to that our relationship with society and how the quality of our civilisation matters to our individual well-being. It helps our children to get more out of life if they leave school with a better understanding of how our society works. If I have one regret about the amendment, it concerns its use of the word "and" rather than "including". In my view, any course of learning that does not comprehend social responsibility does not teach citizenship.
Lord Hylton: I should like to argue for the widest possible interpretation of the word "citizenship". It includes much more than just the democratic process, important as that is. I agree with the noble Lord, Lord Peston, that the ethos of the school is important and that the total behaviour in a school and how it is run are vital. If that degrades, overall results will be poor. But I hope that the noble Lord, the Government and your Lordships generally would agree that how to make a moral choice, for example, can be taught as a methodology. Health and personal hygiene can be taught with a highly factual content. Those should lead first to self-respect and then to respect for others. If they were more emphasised, we might have rather less vandalism, anti-social behaviour, road rage and so on.
Baroness Blatch: First, I do not know what it will do for the reputation of the noble Lord, Lord Peston, but I must agree with an awful lot of what he said. I hope that that does not disturb his afternoon too much.
Secondly, my understanding of the amendment is that it would remove "history" and "in relation to the third key stage"; in other words, the insertion would apply to all key stages, 1, 2, 3 and 4. I wish to make two points.
I want to ask the Minister a question about the whole of Part 6, which concerns the national curriculum. In earlier debates, the noble Baroness told us that exceptions under Clause 5 would not freely allow exemption from these clauses. If we start to add up what is in these clauses and this part of the Bill, there is not much from which to be exempted. It would be helpful if by the end of this debate, we could be told where the freedom for exemption lies. If these clauses apply come what may, irrespective of Clause 5, it would be helpful to know where exactly is the freedom of movement for those schools that earn autonomy.
My other point is a plea on behalf of those teaching key stage 1. The national curriculum was introduced under the 1988 Act. When I was a Minister, schools were greatly concerned that there was too much cramming into the curriculum—in particular, into key stage 1. So, as an exercise as a fairly junior Minister in the department, I asked my officials to put on my desk every day what literature went to schools for key stage 1. When the pile became taller than me, I had to admit that it would be impossible for any teacher who taught the same children in one classroom eight, nine or 10 subjects, sometimes for more than a whole year, to be fresh and to approach that curriculum in any effective
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way. After that, a great deal of modification took place and the way in which the curriculum was applied was relaxed in some subjects.
We appear to be turning the clock back. My concern about making citizenship a formal subject in the curriculum—for any key stage, but especially for earlier key stages—is that the moment it is part of the formal curriculum it will have formal parameters, schemes of work and central direction and people such as the noble Lord, Lord Dearing, who did such sterling work, will be beavering away writing prescriptive literature for teachers. Teachers have these great tomes in one hand while teaching the children on the other.
I absolutely agree that we want our children to be good citizens. Personal responsibility and understanding of democratic institutions permeates the best schools. I agree with the noble Lord, Lord Hylton, that the subject goes wider than that and includes understanding of global llssues, which will occur in a small way at early key stages but in more depth later. That is taught through geography, history, English, drama, music—through so many subjects in the curriculum—but the moment that it is introduced as a subject in itself, we lay on teachers a burden that they will find unhelpful at the early key stages.
I do not know whether I represent the noble Lord, Lord Peston, well, but the noble Lord, Lord Dearing, accused the noble Lord, Lord Peston, of arguing that citizenship was a subject without substance. I do not think that that is what he was saying. Citizenship has great substance, but it really should permeate everything that children do and learn in school—the ethos of the school; the way that the school is layered; how teachers behave and interact with children; how teachers proactively involve parents in that process; and how the school relates to the local community. Some schools do that exceedingly well.
So on the one hand, I ask a straightforward technical question about the status of the clauses in the Bill, but on the other, my point is that we must remember that at the end of the day teachers must interpret what we say in rather stratospheric terms in the Chamber. If citizenship becomes a practical subject in the classroom, it will make teachers' lives difficult.
4.15 p.m.
Baroness Walmsley: I should be very concerned if the amendments meant that history were removed, as the noble Baroness, Lady Blatch, fears. I do not see it that way, but no doubt the Minister will enlighten us.
I both agree and disagree with the noble Lord, Lord Peston. I disagree with him about citizenship. It is appropriate that it should be taught as a subject that can be examined and monitored. There are many issues to do with our rights and responsibilities as citizens that we should formally teach our children. However, I agree with him on the issue of social responsibility. Yes, it should permeate the ethos of the school, but I would go further. We can teach social responsibility in every single subject: socially responsible history, biology, drama, geography, every

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kind of science and perhaps even rugby. Every subject has an aspect of social responsibility that should permeate it.
Lord Alton of Liverpool: In speaking to Amendment No. 275, in the name of my noble friend, Lord Northbourne, perhaps I may draw the Committee's attention to my interest. I am a director of the Foundation for Citizenship at the Liverpool John Moores University.
I have much sympathy with what the noble Baroness, Lady Walmsley, said, but she made one statement that is not correct. Citizenship will not be examinable. However, I agree with what she said about it being a subject that should permeate the teaching of all subjects and that it should be part of the ethos of schools. The noble Lord, Lord Peston, was echoing sentiments expressed recently by Chris Woodhead in the Sunday Times when he cast some doubt on whether it should be a stand-alone subject. He may find himself in interesting company this afternoon for a variety of reasons.
Your Lordships will recall that the genesis of the debate began in 1990 when our noble friend Lord Weatherill, a former Speaker of the House of Commons, chaired a commission which looked at the issue of citizenship. The right honourable David Blunkett was a member of that commission and brought these issues to the table when he was Secretary of State for Education. I made representations at the time that it was not a good idea to make it a mandatory subject for the national curriculum as I had memories of the teaching of the British constitution and dry-as-dust physics. If the subject is in that sort of category, people will avoid it like the plague. The fact that it is not examinable will mean that it may be disregarded by some students as something in which they need not participate.
In any case, I have reservations about making subjects mandatory in an already overcrowded national curriculum. Only in this country would we turn community service, which is a perfectly good objective towards which people should be encouraged, into a punishment that is dispensed by the courts. I recently heard a Minister talking about the wonders of voluntary endeavour and the hope that it could be encouraged by making it compulsory. I thought that that rather missed the point. Volunteering is to be encouraged, but it should not be made compulsory. Citizenship is for everyone; it is not a spectator sport. We all have to participate in it.
I wonder whether it would be better for Ofsted inspectors to look at the ethos of the schools they visit to ensure that our responsibilities to form good citizens are met. My noble friend Lord Northbourne and the noble Baroness, Lady Howe, referred to that issue and how it was being achieved.
My noble friends were right to emphasise the need to balance the classic language of rights and entitlement, about which we hear so much today, with the richer language to which the noble Lord, Lord Dearing,
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referred. In his lecture, the Chief Rabbi Dr Johnathan Sacks said that we must place greater emphasis on obligations, duties and responsibilities. I am sure that that should be the cornerstone of how we proceed.
Teachers complain that we are overloading the national curriculum and that we do not give them the necessary resources. They say that people have not been trained properly and that from September they will be responsible for something they do not feel competent to do. I hope that that will not bring the concept of citizenship into disrepute.
We have had extensive debates in Committee about faith schools and we have discussed issues such as quotas, admission systems, and so on. The worry about faith schools stems from the question of citizenship. Will those schools encourage a love of our civic or civil society—that no man's land somewhere between the state and government? Will they encourage a love of our democratic institutions, the upholding of the law and the commonly held values that we have in the secular part of the society in which we live? It is through citizenship and through its monitoring and teaching that we can reassure ourselves about the objectives of those schools. I, for one, would be very concerned if schools that are inspired by faith were not seeking to form good civic citizens—people with a proper appreciation of issues such as social responsibility, to which my noble friend referred.
Before the Committee met last week, on Thursday morning I attended an event at Brentwood Cathedral where Catholic schools from the east end of London and Essex were taking part in their school citizenship awards. I have a copy of the brochure that was handed out. I was deeply impressed by the numbers of children involved. They came from many different racial backgrounds and were singled out for all the things that they had been doing as good citizens. They ranged from a young man who had been voted by his compatriots for standing up to school bullies through to a young woman who raised a substantial sum of money to help with an AIDS project in west Africa.
Good citizenship is going on anyway. It is best experienced rather than taught. We must be careful not to put the dead hand of the state on to the issue, which, like volunteerism or community service, would perhaps kill it.
I have a final point to make regarding primary schools. Curiously, it will be a mandatory subject in secondary schools where young people are already being put through the "Gradgrind" of highly pressured programmes on which they will be examined. It is yet another requirement on those young people, but it will not be mandatory in primary schools. Thematic teaching has been referred to. Looking at issues such as slavery, the holocaust or the Irish famine and relating it to contemporary issues can be done much more easily in primary schools. Perhaps that is the place in which to crack this nut rather than in secondary schools.
I am grateful to my noble friend Lord Northbourne for giving us the chance to explore this question. I hope that it will not go the way of AS levels but that the

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Government will appraise the first year of citizenship with an open mind and will go back to the drawing board if necessary.
Baroness Ashton of Upholland: There have been some fascinating contributions. I start by saying that we are seeking to ensure that all children—I include mine—have the opportunity in their education to explore ideas to enable them to cope with the world that they will find themselves in as adults, a 'world infinitely more complicated and complex than at the time I became an adult.
There is a place for education that goes beyond the academic. I am talking about the opportunity for young people to think, inquire, debate and understand the importance of making decisions about their lives and some of the great issues that will affect them. I can only gaze into a crystal ball and imagine what those issues will be, but some of them, such as the more complicated world in which we live, science and technology issues, the changing pace of the world, and so on, are as important to all children as ensuring that they have the right level of academic ability and attainment at the end of their education.
I greet the arrival of citizenship in the secondary school curriculum with nothing short of delight. It is extremely important. If I may tease my noble friend Lord Peston, I wonder whether he would remind us when economics became a secondary school subject. If we go back far enough we will discover that it was not always such.
The noble Baroness, Lady Howe, opened up this extraordinarily interesting debate. I am sorry about the website, but I am not allowed to design one or to get anywhere near them—for good reasons, I can assure the noble Baroness.
My noble friend Lord Jones asked about impartial teaching. That is what all teachers do. We have a fantastic cadre of teachers in this country and I should not want anyone to believe that the teaching of this subject, or any other—history, science, or whatever—is done by anyone other than teachers who are willing to give children opportunities to learn. I hope that all noble Lords will join me in echoing those sentiments.
I recognise from the remarks of the noble Lords, Lord Hylton and Lord Alton, the desire for the subject to permeate and come within the context of every subject. I do not disagree with that. It is important that our children are given every opportunity to debate, inquire, learn and understand all that we see as part of the curriculum and for them to see the link with their role in a wider society. I accept what the noble Lord, Lord Alton, said about faith schools. I would not wish citizenship teaching to go the way of the British constitution, although there were occasional flashes of inspiration from certain teachers in my experience.
We need to look across to ensure that the curriculum is appropriate. The reasons why citizenship has been included will have been debated in your Lordships' House before and I do not want to dwell too much on how we arrived at this point. I shall say why we believe that the three strands are very important. First, clue to
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the role that we play, I believe that all Members accept the importance of political literacy for all our children and young people. We must ensure that our children understand the role and importance of democracy in our society. They should also understand its underpinning as regards our future, as well as the role and nature of the political parties and democratic institutions that operate within its scope.
Community involvement is very important. "Volunteering" has always been described to me as the essential act of citizenship. Through volunteering, many noble Lords—and, indeed, many other people—acknowledge the fact that they learnt not only a huge amount about some of the social issues in this country but also about their own place and role within it.
Secondly, noble Lords have pointed out the difference between primary and secondary provision. It is in secondary provision that we are seeking to ensure that children receive such opportunities—the kind of opportunities where they can consider certain issues: for example, investigating crime and its consequences; looking at issues relating to imprisonment; and, indeed, understanding many social issues that are most important.
The third inter-related strand is social and moral responsibility. Social responsibility is very clear, and very key to the role that citizenship will play. I accept entirely what the noble Baroness, Lady Howe, said about the value and importance of responsibility, as well as rights. We must give our children that sense of responsibility and ensure —as with the PSHE curriculum—that people understand that parenting carries with it huge responsibilities. We need to help people learn and develop that understanding.
We have made our commitment to citizenship clear within the framework that we have established. As I said, under the 14 to 19 Green Paper, we propose to retain it as a statutory requirement. In the light of my response, I hope that the noble Lord will feel able to withdraw his amendment.
Before I conclude, I should deal with the specific question posed by the noble Baroness, Lady Blatch, that I have not, as yet, addressed. The clauses affected by earned autonomy are Clauses 77 to 85. In my reply to the noble Lord, Lord Roberts, I talked about the programme for study being the area in which we would be looking to examine earned autonomy in more detail. I shall return to the matter at the next stage of the Bill to discuss it at length.
4.30 p.m.
Lord Northbourne: Before I withdraw my amendment, I should like to point out to the noble Lord, Lord Peston, and other Members of the Committee, that the trouble with education debates of this kind is that too many noble Lords are teachers, or at least academics. Teaching is, therefore, perceived as standing at the front of a classroom of children with chalk in one's hand. I perceive this citizenship curriculum as being a led discussion where young people are led to think for themselves and encouraged to make intelligent choices, and, indeed, to assess risks. That concept cannot be examined, as was determined by our discussion.

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I shall read the Minister's response before I decide whether or not to return to the matter at the next stage—
Baroness Blatch: Before the noble Lord withdraws his amendment, I should point out to the Minister that my question was not about Clause 5, although there is a connection. My question is: what is the status of these clauses? If approved, would the provisions in these clauses be compulsory, irrespective of Clause 5? Can the Minister tell the Committee the status of the clauses that we are currently discussing?
Baroness Ashton of Upholland: I must apologise to the noble Baroness, but I do not think that I understand her question.
Lord Peston: Perhaps I may ask the same question in an effort to be helpful. I thought that foundation subjects were compulsory. Am I right in that assumption? I have never fully understood the position, because the national curriculum was introduced by the then government all those years ago. I thought that a foundation subject was something that you had to teach, and that you could not suddenly announce that you would not teach, for example—to take the obvious one—citizenship. You have just got to teach it. I really do not understand the position.
Baroness Blatch: The precise point is that both the core and the foundation subjects are subjects that must be taught. However, another part of the Bill allows earned autonomy or exemption from the national curriculum, as set out in these clauses. We were told earlier in our debates that these clauses were inviolable; in other words, that there could not be exemptions. I am simply asking about the status of these clauses.
Lord Northbourne: I believe that the noble Baroness has rather hijacked my amendment. It seems to me that she has raised quite a different point and one that might perfectly well be raised in a separate amendment. We are discussing whether or not citizenship is about social responsibility, and, if so, whether young people should be encouraged to understand such social responsibilities—
Lord Peston: I am sorry, but I am not convinced that the noble Baroness has hijacked the noble Lord's amendment. If you do not have to teach citizenship as a subject, but you do teach it as part of the rest of the curriculum—which was my view—it meets both the noble Lord's requirements, as just outlined, and my own. However, it is a different matter if you have to teach it as a subject. That is the question that we are asking.
Baroness Howe of Idlicote: Perhaps I may refer to the Written Answer I received on citizenship education last month, which concluded by saying:
"This allows schools flexibility in how they deliver the subject, for example, as a discrete subject or through other subjects".—[Official Report, 17/4/02; col. WA 160.]
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It seems to me that that meets the point raised by the noble Baroness. If it is allowed to be taught, there should be flexibility for teachers as regards how it is taught—either as a "discrete" subject of their choice, or, indeed, "through other subjects". However, I have no answer as to whether or not the subject is to be examined.
Baroness Blatch: I apologise to the noble Lord, Lord Northbourne, if he believes that I have hijacked his amendment. However, if the noble Lord's amendment is accepted, "social responsibility" would become a compulsory subject, whether applied in a free way or as a self-contained "discrete" subject. If it is included as a compulsory subject, I want to know where it stands in terms of the status of these clauses vis-à-vis exemption and/or earned autonomy.
Lord Jones: In his last remarks, the noble Lord, Lord Northbourne, with some resignation and, I believe, some regret, quite fairly said that perhaps there were too many teachers participating in this debate. If I misrepresent what he said, I apologise. However, if the noble Lord were to visit the Tate Britain gallery tomorrow, he would see there a portrait by Allan Ramsey, a noted rational man, who painted the House of Hanover—namely, Queen Charlotte and several young Hanoverians. At the corner of this very large painting there is a very learned treatise, entitled, Some Thoughts concerning Education 1693, by John Locke. Perhaps such thoughts would enhance this debate.
Baroness Ashton of Upholland: I shall try to address the issue properly. For noble Lords who are unfamiliar with the position, the national curriculum consists of the core and the foundation subjects. The core subjects are maths, English and science; and the foundation subjects include design technology, modern foreign languages, ICT, geography, history, and so on. I believe it necessary to place that on the record. I do not know whether the noble Baroness had the same problem, but when I became a Minister it took me some time to work out the difference between the core, the foundation, and the basic subjects.
I apologise for not recognising the nature of the noble Baroness's question. We have said that earned autonomy—Clause 5—means that schools are exempted from the provisions of Clauses 77 to 85. However, I have made it clear that we are not talking about exemptions from curriculum subjects; we are talking only about changes in the programmes of study. Therefore, although the subjects will be compulsory, the programmes of study will be varied under the regulations that we propose to make under Clause 6. I hope that that clarifies the position, and that we can move on to consider further amendments.
Lord Northbourne: I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 276 not moved.]
Clause 80 agreed to.
Clause 81 [Curriculum requirements for fourth key stage]:
[Amendment No. 277 not moved.]
Baroness Walmsleymoved Amendment No. 278:
Page 54, line 36, at end insert—
"(f) at least one of the following—

(i) history,

(ii) geography, and

(g) at least one of the following—

(i)art and design,

(ii) music."

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 279, 288 and 289, all of which were initially to be included in an earlier group of amendments that was not moved. The purpose of these amendments is to ensure curricular breadth and balance at key stage 4, the first two for England and the second two for Wales.
Clause 81 lists the compulsory core subjects of the national curriculum but does not include any of the humanities such as geography and history nor the creative arts, despite the fact that these are popular and valued subjects. There is evidence that geography graduates are among the most employable of new graduates. However, the Green Paper assured us that,
"we are determined to preserve access to a broad and balanced curriculum for all".
In view of the Government's declared intention it is surprising that those subjects have been left out. Amendment No. 278 seeks to reintroduce them.
Amendment No. 279 is crucial. It seeks to ensure that whatever flexibility is introduced in key stage 4, young people will be guaranteed a broad and balanced curriculum. While my noble friend Lady Sharp of Guildford has advocated that schools should have flexibility on 20 per cent of the curriculum, the reference to a "broadly based curriculum" is important to ensure that students are well prepared for life in the 21st century. For example, making a modern foreign language optional could be seen as a retrograde step given the UK's membership of the European Union, with all its diversity, particularly in the light of the ever-increasing educational and job opportunities in member countries.
Last week the TES reported that some schools are jumping the gun and making modern foreign languages optional. The different pathways that are to he on offer to young people could start them off in what turns out to be the wrong direction. We seek reassurance that students will be able to move easily between the academic, vocational and occupational pathways. The Green Paper did not specify how that would he achieved. Will the Minister put some meat on the bones?
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Research shows that students front certain minority ethnic groups and socially disadvantaged backgrounds are disproportionately represented in vocational and occupational courses. It is vital that they have the opportunity to move easily if the chosen path turns out not to be the best route for them as they develop. Many young people still do not have a clear idea where they want to go by 14, and employment trends are currently shifting rapidly. That makes the Government's pathways less important than a good broad core curriculum, giving young people the basic skills, understanding and knowledge to benefit from other courses later and to respond to changes in the workplace.
There is evidence of continuing gender bias in the vocational courses, which could be detrimental to girls' career choices. We also need to ensure that children with special educational needs are not unintentionally all encouraged into the same sort of courses. I can envisage nightmares ahead for whomever is responsible for timetabling in secondary schools—usually one of the poor, benighted deputy heads—and also for staffing, professional development and funding issues in relation to creating these pathways, with sufficient opportunity for switching. All those considerations make the core curriculum vitally important. All students, including those with special needs, should receive the same opportunities.
Amendments Nos. 288 and 289 seek similar provisions for Wales. It is of concern that Clause 102, which separates the national curriculum subjects at key stage 4 for students in Wales, has even fewer foundation subjects than the list for England. That is despite the declaration by Jane Davidson, the Minister for Education and Lifelong Learning in the National Assembly for Wales, that she has consulted widely with stakeholders and will,
"develop the best practice already in place and identify innovative ideas for widening development".
None of the subjects set out in our amendments is mentioned on the face of the Bill. Are students in Wales not entitled to study information and communications technology, for example? What about citizenship? Amendment No. 289 seeks to ensure that whatever flexibility is introduced, the entitlement to a broad and balanced curriculum remains. I beg to move.
4.45 p.m.
Lord Lucas: I apologise to the Committee for the inconvenience caused by my not being here to move the first amendment in what should have been this group. I got myself in a mess.
I support a number of the noble Baroness's points. The core foundation curriculum is a deficient set of subjects. It contains almost nothing about people. We spend most of our lives with people. Understanding them is one of the most important things we can do. Understanding how to work with people and what motivates them has long been one of the notable deficiencies in British management. If we are looking for subjects we should be teaching, it comes down to the likes of history and geography.

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Art and drama enlighten people and increase their appreciation of what they can do and of working with others. They are important parts of basic education, but we are leaving them behind in favour of the driest subjects. At the foundation of the core level are mathematics, English and science. We all use English every day. The better we speak it and the more we know about it, the better. It is a vital tool. But maths and science?
One of the many achievements of the noble Lord, Lord Dearing, was to bring back mental arithmetic. We use that kind of arithmetic every day, but do we have to calculate angles and triangles and bearings? Do we have to deal with quadratic and simultaneous equations in everyday life? I am a science graduate, and I have used mathematics in science, but not in ordinary life. I understand why those are useful tools for academics and economics professors. They are useful too for those aiming for the new baccalaureate. I do not know why the Government have to invent a new baccalaureate rather than use the IB, which was invented in England, but that is a side issue.
I understand why it is important to build a broad base for someone going on to university and higher things, and that mathematics and science are a necessary element, but to elevate their knowledge above that of people seems profoundly wrongheaded. That attitude, which has been with us for a long time, results in people who are a little disenchanted with school growing extremely disenchanted and finding academic learning difficult.
My son has just been through key stage 3 science, so I have been taking him through it. By and large, it is "Trivial Pursuit". I enjoy facts, and knowing what an architrave is, but they are not the foundation of learning and appreciation of the world. Does any Member of the Committee suffer from not knowing the difference between a pistil and a stamen? It is nice to know, but it does not alter the way one relates to life and to other people. Is it important to know the reactive order of metals, the periodic table, or how rocks weather? Is it important to understand what particles are and how they interact?
Science is fascinating stuff; I learnt and enjoyed it, and I still enjoy going through it. But it should not be a foundation or core subject. Core subjects should be those necessary to enrich our lives as foundations for whatever we choose to do. I place history and geography top among those. Historians have shot themselves in the foot by turning history from a fascinating subject into a scientific investigation, but at the root of history are the most wonderful stories; the reasons why we are a country.
Those are the reasons why my noble friend Lady Blatch and the noble Lord, Lord Peston, would like citizenship taught, and so they should be, but they are also a great route to understanding people: what motivates them, how they work and what we as people are about; the possibility of greatness, self-sacrifice and courage. They are all best learnt through history and the stories of others.
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It is important that we gain an appreciation of the world. We are one planet and in almost every aspect of our lives we interact with people a great distance away. When I buy beans from Sainsbury's, I buy those from Kenya, Zimbabwe or some such place. To be ignorant of how the world works and of how people, economies and structures work and interact would be terrible. The decisions which we as citizens of this country are asked to take when we have the chance to vote in general elections, when we have the opportunity to express ourselves in newspapers and in support we give to political parties have an effect on the way in which the world works. Not to understand that is to leave us deficient as citizens of the world.
How we can believe that learning that is less important than learning the order of the reactivity of metals or the structure of a flower leaves me completely flabbergasted. I believe that we have got our order of priorities completely wrong and I therefore hope that the amendment will be accepted. It will be a step back in the right direction and will introduce the study of man into our basic education and ensure that it stays there.
I do not suppose that the noble Baroness will press the amendment to a vote at this stage, but I hope that we will have a chance to vote on it at a later stage. I shall certainly support her.
Lord Peston: We are talking only about key stage 4 and not all the other key stages. I strongly support the Government's position of creating room and flexibility in that stage. However, in doing so one must say, "This is more important than that"; in other words, "This is vital and that you can choose". My reading of the Bill is not that no one can study history, geography or the other subjects but that they are not obliged to do so at that stage.
A good reason for that is that students might want to study other subjects, which seems to make good sense. We can all name a subject and make an impassioned plea as to why it is the most important for people to study, as did the noble Lord, Lord Lucas. For example, the noble Lord, Lord Hylton, seemed to be under the impression that one could teach people to make moral decisions. Anyone who has read any moral philosophy knows that that is not the case. However, as someone who is devoted to moral philosophy, I could make an impassioned plea that it ought to be a compulsory subject in schools simply so that young people could learn how difficult it is to make a moral decision—that is, the very nature of a moral decision and not the decision itself. I could do that with almost any subject one cares to name. However, I do not believe that the Government are wrong in saying that at this stage we ought to create some room and the only way of doing that is to leave it to the school or the child to decide.
It is not in my nature to be supportive of the Government on these matters, as my noble friend knows. However, pupils will have been taught some history and geography and, unless I am on the wrong page of the Bill, music. That is all to the good. The real question is whether it is unreasonable to suggest that

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we are given choices. My concern is that in making choices they might still go too far down the academic road. In that respect I support the noble Lord, Lord Lucas. As I have previously mentioned, I am desperately sorry that I did not learn how to strip a car engine when I was at school. There was no later time to do so and I hope that within the vocational part of the curriculum, including for the "academic" boys and girls, ii can be said, "You're going to learn to strip a car engine whether you like it or not". However, we need to create room for that in the curriculum.
I do not want to prolong the discussion by having a continual debate with the noble Lord, Lord Lucas, but I must say that maths taught properly is the most exciting intellectual subject one can imagine. The trouble is that frequently it is not taught properly; it is taught rote as a set of rules. However, taught as it is in terms of foundation, with the exception of learning how to write a decent sentence in English, I can think of nothing more important. The one thing I would die in the last ditch for would be keeping maths, taught properly, in the curriculum.
Lord Dearing: I am delighted to find myself for once in total agreement with the noble Lord. If we a re to excite all our children to engage in learning by the age of 16, the more we can free up the 14 to 16 curriculum the better. Our key objective must be to want them to engage in learning beyond 16 and for life. Unless we can do so, we have failed them.
Therefore, we need to trust our schools much more to be able to respond flexibly. It does not mean that if that is not prescribed they will not do it. I believe that in the great majority of cases children will want to follow what we might regard as the standard subjects. But I would like teachers to have more freedom not only in choosing subjects but in choosing which elements excite them so that they can then communicate that excitement to young people.
As regards mathematics, I did not have the privilege of finding excitement. It was not until the age of 26 that to my astonishment I found an application for simultaneous equations. For ever after, that was known in the department in which I worked as the "Dearing formula". It was a miracle but it took until the age of 26, having left school at 16, to find it. I think I could have managed without it, but my main point is the more serious one. We must trust our schools more and realise that our primary duty is to engage the attention and enthusiasm of children in learning before they can choose to shed education from their lives.
Baroness Howe of Idlicote: I could happily join the queue with my favourite subject and equally support the Government's argument that there should be flexibility for schools and individual children to make choices. However, I want to re-open the subject of language teaching for a different reason. If it is to be allowed to be dropped from key stage 4, I want to be assured that it is done for the right reasons.
It has been said that there is a shortage of language teachers. Surely, one of the ways to make the best use of the language teachers who do exist would be a more
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imaginative use of distance learning methods, which have been so brilliantly pioneered by the Open University. I declare an interest because I am the vice-chairman of the OU Council.
The OU is currently involved in training more than a quarter of all UK teachers in its Learning Schools Programme which will be running until the end of March next year. And the 10,000 who have already completed the programme are known to have gained significantly more confidence in using new technologies in their teaching.
Surely, too, in partnership with broadcast media, we need more imaginative programmes for the actual teaching of languages, in particular for the young. That will release more teachers for the older generation. A more educational version of "The Tweenies"—even "The Teletubbies"—in French or German should certainly help turn on the very young at the age when they are most receptive to language and accent. For older children, something similar to "The Simpsons" would almost certainly produce the same result, teaching them within the genre that they find exciting and interesting.
Judging by the concern expressed by Foreign Office Ministers—and indeed by Ambassadors from the EU—at the suggestion that the UK should drop languages from the compulsory curriculum at key stage 4, practical help with the language and pronunciation side of such programmes might well be forthcoming.
Therefore, although I want the flexibility in the Bill, I want to be reassured about the reasons for dropping particular subjects. Although, let us face it, everyone else speaks English, it would be a great shame if there were not the ability to open minds to other languages and the experience and wider understanding of a culture that that can bring. I find it fascinating that most universities, certainly the LSE at some stage, were teaching with their subject matter—perhaps resisted somewhat by the academics—the language, so that economics or whatever subject it was could be taught against the background of another language.
5 p.m.
Baroness Blatch: I take the point made again by the noble Lord, Lord Peston, in terms of flexibility at age 14. However, I find it very hard to accept that citizenship is a subject that must be compulsory, however it is taught, over and above history and geography, for example. It seems to me that a proper understanding of one's past and of the physical world around one are so very important. As has been said, citizenship can be imbibed through all subjects, including history and geography. So I find it very difficult.
I am a Monty Finniston fan. It was Monty Finniston who created "education for capability". The process of young people identifying problems and creating solutions to them by making things and by evaluating them, through science and through design and technology, is important. They go together in

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terms of young people learning how to solve problems in their everyday lives by employing the processes that are used in science and by evaluating them.
Again, there is the idea that that information and communication technology should be compulsory when history and geography are not—for today's children, who are so proficient at communicating and using technology even before they start school. I find the proposition strange that those subjects should still be compulsory at key stage 4 when history and geography are not.
Lord Alton of Liverpool: I am inclined to support the remarks of the noble Baroness, Lady Blatch. I, too, have a big reservation about appearing in any way to diminish the importance of the teaching of history and geography. I accept the crucial importance of children understanding information technology and knowing how to access the Internet to find resources there that would never be available to them otherwise; in today's world people must be computer literate. Nevertheless, an understanding of ourselves—here I support the remarks of the noble Lord, Lord Lucas—of how we relate to others, and of our nation's history and the reasons we are as a nation how we are, go to the very heart of how we live our lives. Any proposal that relegates history or geography should be resisted.
I hope that when the noble Baroness, Lady Ashton, is examining this matter between now and Report she will consider whether the provision is set out in the most helpful way. It may send a signal into the system that Parliament, having considered these matters, believes that the diminishing of the status of history and geography within the curriculum is a matter that is negotiable. If we were to have a thoroughgoing debate on that subject alone, I do not think that we should necessarily come to that conclusion.
I also support the noble Baroness, Lady Howe, in what she said about distance learning as a way of supporting the teaching of many of the subjects listed. This is the way in which education is bound to open up in the future, and we need to give more attention and time to that. But, surely, none of it will replace inspired teachers. It is a shame that we have not had a chance during the Committee stage to say a little more about the crisis that is affecting the teaching profession.
At one time, teaching was seen as a vocation—a calling in life. Yet many people now are even repelled from entering the teaching profession. They know so much about its lack of status, about the many pressures that are placed on teachers, and about the issues that have been raised during our debates in Committee; namely, violence and indiscipline in the classroom—all of which have been registered by teachers.
A very worrying issue—one that I raised at Second Reading—is the number of supply teachers who are now used in the classroom rather than steady teachers who spend all their time inspiring the children. Supply teachers, by definition, are here today and gone tomorrow, so they cannot bring stability or continuity
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into the schools. There has been a significant increase across the country in the use of supply teachers over the past couple of years.
All of us, whenever we see the Times Educational Supplement section on "teachers who inspired us" probably go to that section first. We all remember from our own lives at school those teachers who made a significant difference to us. My love of history was certainly given to me by a teacher who knew how to teach history.
I agree with the noble Lord, Lord Lucas. Although I agree that we have to teach some facts—I do not think that the teaching of any subject can be devoid of the teaching of facts—the way in which we go about it is essential. If the teaching consists purely of a distribution of facts on a rote basis with no inspiration behind it, such teachers have little chance of inspiring the children entrusted to their care.
Lord Jones: The noble Baroness, Lady Blatch, said that she was a Monty Finniston fan. Would that be Sir Monty Finniston, who headed the British Steel Corporation and who headed the Government inquiry on engineering? I see the noble Baroness nodding.
Baroness Sharp of Guildford: This discussion is the only chance that we have had to debate the consultation paper on 14 to 19 education. Clause 81 is the precursor to its implementation. We have had a wide discussion on how far subjects should be made compulsory at key stage 4, which is the part of the process relating to 14 to 16 year-olds.
One of my worries about the whole concept of the 14 to 19 paper is the lack of a degree of coherence. There are pathways that diverge from 14 onwards. But one of the problems that we have had in this country for many years is the degree to which we have narrowed down the curriculum post-16—the A-level curriculum in particular—and students have studied far too narrow a range of subjects. I know that it is hoped that the AS levels will open that up, but they have not succeeded in doing very well so far. I worry, for example, about the dropping of a modern foreign language for 14 to 16 year-olds (at key stage 4). Frankly, in this day and age we should be encouraging students to take a modern foreign language through to 16.
The same is true so far as concerns mathematics—in spite of the remarks of the noble Lord, Lord Lucas. I support the idea of the international baccalaureate. It has a coherence. One of its features is that it carries on mathematics. In this country, the kind of mathematics that is taught through to GCSE is not sufficient to support the kinds of applications that we now require in terms of training. If we compare this mathematics with the requirement for vocational courses in Germany it is often totally insufficient.
I am worried that the pathways that are being foreseen in the 14 to 19 paper are too narrow, that it will lead to increased specialisation along narrow pathways rather than to a broad-based, balanced education. That is one reason why we have tabled the

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amendments. They require the concept of a broad and balanced curriculum to underpin the whole. There is a great danger that we shall find ourselves pushing children into narrow channels which are not what are required in this modern day and age.
Lord Lucas: To return to the remarks of the noble Lords, Lord Peston and Lord Dearing, about cluttering up the curriculum, I entirely agree that we should look at reducing the burden in the 14 to 16 curriculum. But the way in which I would set about it is very different from the way in which the Government have set about it.
I agree with the noble Lord, Lord Peston, that mathematics is beautiful, if you happen to be one of those people who can read it that way. Even I, who managed to struggle through a university degree in physics, find it difficult. There are a few people who find it wonderful.
As the noble Baroness, Lady Sharp, says, mathematics is important in some careers. Yes, it should be included in vocational courses. But there is no reason why someone who will end up as a commercial artist should have to struggle with simultaneous equations. It is not a foundation for such people. It will not give them any joy or purpose, and it will be of no use to them in life thereafter. I think that mathematics should be taken out of the core subjects and put into the foundation subjects.
I think that we should follow the ideas on science put forward by my noble friend Lady Blatch. The current science curriculum is terribly dusty, dry and uninteresting. We should make it much more about problem solving and real, everyday life. We should also combine it with a good element of citizenship. There should be a good understanding of how science relates to society and the world. If scientists understood a little about society, and everyone else understood a bit about science, we might be able to avoid some of the horrors being visited on the world. Science, too, should be a foundation subject.
Design and technology is a non-subject. What else do those involved in it do, other than design plastic windmills or play around in a basic way with a few microchips? Design and technology really should be replaced by proper vocational courses. As the noble Lord, Lord Peston, said, if one knew how to maintain a modern motorcar, one would understand a great deal about the electronics which are at the core of those motorcars. However, it is ridiculous to say that design and technology in its present form should be a foundation subject.
I agree entirely with what my noble friend Lady Blatch said about information and communication technology, which should be part of every subject. One should not have to learn ICT separately. Other than programming, my children can already handle a computer much better than I can. I suspect that my son, by the end of his GCSE course, will also be a better programmer than I am. ICT skills are acquired simply because ICT is part of the way in which children learn other subjects.
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We must maintain space in the curriculum for physical education. As we cannot have a nation of desk-bound children, I see the function of physical education. Citizenship should be part of the way in which we teach all sorts of other subjects. Modern foreign languages also should be included. Combining all those subjects, we end up with a thinned down curriculum with lots of room for history, geography and arts and music, as Amendment No. 278 proposes. I think that that would be a much better balance for the core subjects than that proposed by the Government.
Lord Dearing: I intervene very briefly to say to the noble Baroness, Lady Sharp: encourage, yes; compel, no.
Baroness Finlay of Llandaff: I must spring to the defence of science. Last night we had a very interesting debate on the issue of alcohol, and one aspect which emerged loud and clear was the problem of binge drinking by youngsters and their lack of understanding of their own biology and reactions to alcohol. Unplanned pregnancy is another aspect of the problem. Some noble Lords who participated in that debated are in the Chamber now.
If we are not preparing our young people for whatever life lies ahead of them, we are failing them. In establishing any curriculum, we can argue long and hard about whether to include or exclude a given subject. However, we have to educate the whole spectrum of society. Some children come from extremely deprived and difficult backgrounds, and we have to educate them to avoid some of the traps that their parents have fallen into. Part of education should be to prevent the sins of the fathers being visited upon the children.
Lord Peston: As we seem to be having two debates, perhaps logic should also be a compulsory subject; it seems to be lacking at the moment. The noble Lord, Lord Lucas, is being logical. He is saying that he would take one subject out because he wants to put another in. I can understand that although I may not agree with him on what should come out or go in. However, I am totally lost in relation to the amendments tabled by the Liberal Democrat Front-Benchers. They have told us what will have to go in, but they have not said what can come out. Logically, therefore, they are saying that they are opposed to flexibility. They must not want a flexible 14 age group. If they do want flexibility, they have to accept that choices will have to be made. But they do not seem to want to do that. When I was a teacher, one of my constant problems was trying to persuade young people that if they chose this, they could not do that. Young people find that incredibly hard to grasp. 'There are very few points that we can teach beyond, "If this, then not that". The answer, however, is always "both".
It is right that we are having this debate. I believe that we are trying to understand what young people should be doing at 14. I think that there should be as much choice as possible at 14. Indeed, I go further and entirely accept the view expressed by the noble Lord,

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Lord Alton—that if we do not say that something is not compulsory, it may seem that it is not that important. I understand the point. Our duty, however, is to say, "No, it is not compulsory, but we believe that it is tremendously important". Although—to my horror—one can do economics at 14, I regard that as absurd. I would not teach economics at that age. However, if that is the choice that is made, so be it.
As I said in your Lordships' House 10 years ago, if we are preparing people for life, we should be teaching them skills such as how to read the Good Food Guide, and things of that sort, as that is what young people become obsessed with once they join the bourgeoisie. However, I take it that none of us is advocating that. More seriously, in terms of later life, perhaps we should be teaching accounting to young people, including the moral side of the subject, and particularly how to spot a dodgy balance sheet. They will learn very few things more important than that.
I stick to my view that the Government are right on this issue. If I were to criticise them, it would be to advocate fewer compulsory subjects and more choice. However, I certainly would not go down the line of saying, think this is important. Therefore, we have to do it". The point is that I think this is important. Therefore, we hope that people will choose to do it. That seems to be the correct way. For once, I strongly believe that the Government are going in the right direction.
5.15 p.m.
Baroness Ashton of Upholland: Like the noble Lord, Lord Lucas, I am a great fan of history. I understand that Simon Scharma is presenting his new programme at 9 o'clock tonight on BBC. However, I shall not be able to watch it. That is just a gentle reminder to noble Lords of how much we have yet to do. Nevertheless, I shall ensure that the programme is videotaped for me. I am also glad for the support of my noble friend Lord Peston. I wanted to put that on the record because it is a very great moment for me. I am fascinated by his desire to understand how to strip a car engine. I wonder if he has looked at one recently. They are impossible to understand.
I thank the noble Baroness, Lady Walmsley, for introducing the debate. She described the gender bias in vocational education and issues affecting ethnic minorities. We want to create a system in which vocational is as good and important, and is seen to be as good and important, as academic. We are therefore not approaching the issue in the same way as we would if we felt that the subjects were being described as inferior. It is important to recognise that we are trying to create a new pathway and a new 14 to 19 phase of learning, the purpose and intention of which is to move away from the culture of leaving school at 16 and to create the opportunities that are necessary if we are to compete successfully in the global economy. We need not only to have the best-educated people possible but to recognise the inherent value of education. As noble Lords will be aware, consultation on the new pathway ends on 31st May.
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The Bill does not change in any way the status quo in terms of key stage 3 and key stage 4 subjects. The power to alter key stage 4 is contained in Clause 82. However, the Bill does not change the subjects that must be taught in schools. Moreover, any order made under Clause 82 would be subject to the affirmative resolution procedure. We would have the opportunity to debate and discuss the matter.
It is also important to realise that history and geography were made optional at key stage 4 some years ago, under the previous Conservative government. I believe that the change was a result of the review conducted by the noble Lord, Lord Dearing—who has left the Chamber. Currently, it is for schools to determine whether and to whom they will make these subjects available. In the Green Paper, we are proposing that although pupils should not be statutorily obliged to study these subjects, schools should be obliged to make them available to pupils who wished to take them. That is arguably a stronger position than the current one. It is important to see it in that context.
The noble Baroness, Lady Howe, talked about language learning. As she knows, I could talk for hours on that subject; but I shall resist the temptation to do so. However, I was very interested in her knowledge of the Tweenies and the Simpsons. I, too, have been in discussion with many people on the language issue. As we speak, the language group which I chair at the department is meeting to consider a language strategy which, as noble Lords will know, will be presented in the autumn. As I have said, the strategy considers issues of motivation and opportunity and how to provide opportunity particularly to the youngest children, who—as noble Lords have recognised in previous debates—are perhaps best able to learn languages. We must also motivate children to learn languages. Moreover, we have to convince them that language skills will provide them with employment opportunities as they grow older.
We have previously debated which languages should be taught and identified 11 or 13. So there is a recognition within our languages strategy of the need to think about the languages that we offer. I agree with the noble Baroness, Lady Howe, about the value of ICT, not only in terms of distance learning as we would normally recognise it, but also as regards the opportunity through video conferencing and other initiatives to be able to join a class in, say, Spain, France or Germany and participate perhaps in a science lesson in a different language. Those are important opportunities.
In both England and Wales we want to create a positive model that offers greater space—Members of the Committee have talked about that need—at key stage 4 for greater flexibility. We want students to pursue studies that reflect their aptitudes, abilities and preferences while maintaining a strong grip on the basics. We propose that the phase will provide an entitlement for all students to continue to include elements of the national curriculum. We recognise the need for a broad and balanced curriculum.

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I address that point as regards Amendments Nos. 279 and 289. I can understand the reasons why the noble Baronesses, Lady Walmsley and Lady Sharp, tabled those amendments, but I want to assure them that Clauses 75(1) and 96(1) already place a duty respectively on the Secretary of State, in the case of England, and the National Assembly for Wales to exercise their functions with a view to securing the general requirements respectively of Clauses 74(1) and 95(1) for a balanced and broadly based curriculum in maintained schools. That applies as much to the fourth key stage curriculum requirements as it does to the requirements at the other key stages. The duty also applies in respect of the powers to alter or remove the requirements for the fourth key stage.
I hope that those reassurances are helpful to the Committee. I take on board all of the key points that Members of the Committee have made, but our purpose is clear. Within the Bill we are creating the ability to put forward to this Chamber potential changes if we believe that they should be made. That will occur, as I have said, by means of the affirmative resolution procedure. It is worth saying that at the present time neither the Secretary of State nor the National Assembly for Wales envisage a need to remove national curriculum requirements. However, if that became apparent as a result of the consultation, we should be able to do so by means of the affirmative resolution procedure. I hope that on the basis of those comments the Committee will feel able—
Lord Roberts of Conwy: Before the noble Baroness sits down, I draw her attention in particular to Amendment No. 289 which relates to Clause 102 and the curriculum requirements for the fourth key stage in Wales. I draw her attention in particular to subsection (3) of that clause where it is clearly stated:
"The following are the other foundation subjects for the fourth stage—

(a) physical education, and

(b) Welsh, if the school is not a Welsh-speaking school".

It seems to me that that subsection makes those particular subjects exclusively the foundation subjects in Wales. I do not know whether the noble Baroness will be able to answer me now, but I am happy to tell her that there is a later amendment which we shall discuss shortly where the same problem arises.
Baroness Blatch: I also ask the noble Baroness for clarification. My understanding was that the noble Baroness said that the foundation subjects which are set out in the clause constitute an obligation as regards a school teaching them but not as regards children studying them. My understanding is that if they are listed in this clause they are subjects that young people have to study at that key stage.
Baroness Ashton of Upholland: The Bill does not change the current position; the noble Baroness is absolutely right about that. However, with regard to our deliberations on key stage 4, the clause provides an opportunity to make changes, should we so wish, under the affirmative resolution procedure. Members
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of the Committee have discussed the existing consultation process as regards the role of modern foreign languages and design and technology. I say to the noble Lord, Lord Roberts, that I shall respond to his points later when we discuss the relevant amendment. I hope that that is satisfactory.
Baroness Blatch: I am sorry but that response does not clarify the position. The noble Baroness argued that there was an obligation to make certain subjects available, but not an obligation necessarily for each pupil to study those subjects.
Baroness Ashton of Upholland: I referred to changes that may be made under key stage 4 by the affirmative resolution procedure. What we described in our Green Paper constituted an entitlement. That is a different situation from that which is currently in place.
Baroness Walmsley: I welcome the Minister's comments on the lack of hierarchy among the proposed pathways and also her reassurances on the Government's attitude towards a broad and balanced curriculum. One of the many reasons I wish that I were younger is that I wish that I had been educated under the national curriculum. I believe that I would have followed a much broader and more balanced curriculum. I specialised in the sciences at far too young an age. I missed out on the humanities. That is one of the reasons that I think it is so important that one of the humanities subjects—I emphasise this to the noble Lord, Lord Peston—and one of the creative arts subjects should be included in the national curriculum. However, we shall undoubtedly return to the mutter on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brightmanmoved Amendment No. 278A:
Page 54, line 36, at end insert ", and
(f) geography"
The noble and learned Lord said: I shall be as brief as I can. The purpose of Amendment No. 278A is that a school should have to offer geography as an optional foundation subject up to school leaving age instead of stopping two years earlier as at present, and under the Bill. I do not seek to make geography a core foundation subject and therefore compulsory in the final stage.
In approaching the amendment, the questions which need to be answered are, what is meant by geography and what is its importance in the national curriculum? Geography is not, of course, just a matter of knowing the countries of the world, where they are and what are their towns, rivers and mountains. The science of geography is far wider than that.
The dictionary definition of geography, which I take from The Concise Oxford Dictionary, is the following. Geography means,
"The science of the earth's surface, form, physical features, natural and political divisions, climate, productions, populations, etc".

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The importance of geography and the reason why it should not be lightly dismissed from the national curriculum before school leaving age lies in the fact that so many of the problems which beset us today fall within the scope of that definition. We need people with a knowledge of geography to help us to understand and to cope with those problems. We shall not have those people if we remove their interest at too early an age. The sort of problems which I have in mind, all of which fall within the scope of the dictionary definition of geography, are the following. I give a few examples not in any particular order: climate change; retreating ice caps and glaciers and the effect on ocean levels; environmental degradation; racial conflicts; economic migration; coastal erosion; destructive dams, disappearing rain forests; landfill sites and the safe disposal of nuclear waste. The science of geography encompasses or touches on all those problems.
If we do not encourage the study of geography at school and if we dismiss it too early from the national curriculum, we shall end up with fewer trained geographers. If we have fewer trained geographers, we shall be less well equipped to deal with the problems that I have outlined. I should therefore like to see geography not only in the first, second and third key stages of the national curriculum but also in the fourth key stage, but not, as I said, as a core foundation subject.
I have a duty to declare an interest. I have the privilege of being an honorary fellow of the Royal Geographical Society, which was founded by Royal Charter many years ago.
An event has recently occurred which I believe indicates the importance that the Government attach to geography. Last year, the Privy Council approved the introduction of the status of "chartered geographer", which could be awarded to geographers with the requisite academic and field experience. I was told that that approval was granted by the Privy Council only after consultation with the relevant government departments. In my submission, that event gives some indication of the importance that those in government attach to geography.
I obviously do not intend to divide the House on the amendment. However, I should be immensely grateful if the Minister would allow me to meet her and discuss in a little more depth the possibility of retaining geography in the national curriculum until school leaving age instead of two years earlier than that.
I want to add a few words on a matter that puzzles me. Neither I nor the legal department of the Library have been able to find a statutory definition of "core foundation subject" or "non-core foundation subject". My understanding is that core foundation subjects have to be offered, taught and taken by students in a school and that non-core foundation subjects have to be on offer if there is a demand for them but that they are not compulsory subjects. I beg to move.
5.30 p.m.
Earl Jellicoe: I must admit that history has for a long time been my favourite subject. However, this afternoon, I speak for geography. I must declare an interest as a former president of the Royal Geographical Society, with which I maintain a keen interest these days. I only regret that two other former presidents of the Royal Geographical Society are not able to be present this evening—the noble Lord, Lord Chorley and the noble Earl, Lord Selborne. They would have spoken with far more authority than this elderly gentleman!
However, we had a powerful, balanced and extremely well-informed speech from one of the society's most distinguished fellows: the noble and learned Lord, Lord Brightman. The noble and learned Lord—perhaps I should refer to him as the noble and learned fellow—made a powerful case for geography as a foundation subject. It is a popular subject and most geography students find that employment is pretty easy to secure following graduation because of their attainments. Like history, it is a civilising subject in the curriculum. Moreover, it has great relevance to many of the problems and challenges that we face in our present-day world.
I very much hope that we can return to this subject at the Bill's next stage. I strongly support what the noble and learned Lord said. If geography is to be retained as a foundation subject at the 14 to 16 year-old level, there is a case for ranking it as an alternative to history. I do not know what the rights and wrongs would be in that regard. That possibility was raised in relation to the amendment of the noble Baroness, Lady Sharp.
Lord Brooke of Sutton Mandeville: I shall be extremely brief. I have no qualifications to speak about geography but by chance and coincidence I was educated at the same school as the noble and learned Lord, Lord Brightman, who moved the amendment. At the age of 13, I was confronted in a geography paper by the question, "Is the Thames deep because it is slow or slow because it is deep?". Fortunately, the questions were optional and I did not essay that question. However, 35 years later, I discovered that I knew well the person who had set it, and I asked him what the answer was. He said, "I haven't the faintest idea. I just wanted to see what you would say". Apart from the benefit to which the noble Lord, Lord Peston, alluded—that of bringing logic into the process—any subject that sets questions in that manner is likely to excite the young.
Lord Lucas: Quite. But how on earth does one mark that, given current pressures on time and the ability of markers?
Baroness Ashton of Upholland: For one horrible moment, I thought that the noble Lord, Lord Brooke, was going to ask me to answer the question. I am relieved.

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I should be honoured to meet the noble and learned Lord, Lord Brightman, and the noble Earl, Lord Jellicoe. They put very eloquently the case involving geography, which is an important subject. If I may be pedantic and stick with my brief, I point out that the amendment would make the subject compulsory, not optional. It is already optional to schools to offer geography. Geography is a foundation subject at key stage 3, and there is no difference between foundation and core subjects in terms of the way in which they are regarded in law. The overwhelming majority of schools offer geography at key stage 4. Nothing in the Bill will alter that position or in any way reduce the importance of geography.
The Green Paper on 14 to 19 year-olds suggests that all students should have an entitlement to study geography if they choose to do so during the 14 to 16 year-old stage; that is, schools will be obliged to offer it. As I said in relation to earlier amendments, that is arguably a more enhanced position. On the basis that I shall of course be happy to meet the noble and learned Lord, I hope that he will feel able to withdraw the amendment.
Lord Brightman: Before the Minister concludes, I ask for her help on one small point. I have the Education Act 1996 before me. Section 354 states that the core subjects are, "mathematics, English and science" and there is a further provision relating to Wales. It also states that, in relation to schools in England, the other foundation subjects are, "technology and physical education" and some others. What is the difference between a core foundation subject and a non-core foundation subject?
Baroness Ashton of Upholland: My understanding, in terms of the way in which schools deliver, is that there is no difference. If I am incorrect, I shall of course write to the noble and learned Lord and put a copy of the letter in the Library.
Lord Lucas: Does the Minister mean that there are two separate provisions in the Bill—one set of subjects is in one provision and the other set is in the other—and that there is no difference between the two? I am bemused.
Baroness Ashton of Upholland: That is indeed the case. We should not refer to this Government in that regard—I hasten to add that that is not a criticism. It is simply a result of the way in which the provisions on core and foundation subjects are laid out. We could argue about the legal position of the subjects. The noble Baroness, Lady Blatch, may have something to say about the background. The legal position, as I understand it, is that there is no difference in that regard.
Baroness Blatch: That is an interesting answer but the Government are in their sixth year in office. We should consider what would happen if everyone hid behind what was in an earlier statute. In the Bill, the Government are changing almost all previous statutes.
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There are references to the 1988 Act, the 1996 Act and even the original 1944 Act. I am not sure that the Minister has provided the answer. The Government are now in a position to have their own definitions of what they believe to be core and foundation subjects.
Baroness Ashton of Upholland: We are quite happy with the definition; I was trying to be light-hearted. I apologise to the noble Baroness. I meant, in relation to core and foundation subjects, that there is no legal difference, which is important and, relevant in this context.
Lord Brightman: I am most grateful for what the noble Baroness said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. Clause 81 agreed to.
Clause 82 [Power to alter or remove requirements for the fourth key stage]:
[Amendment No. 279 not moved.] Clause 82 agreed to.
[Amendment No. 280 not moved.]
Clause 83 [Establishment of the National Curriculum for England by order]:
Baroness Walmsleymoved Amenclment No. 281:
Page 56, line 29, leave out subsection (12).
The noble Baroness said: In moving Amendment No. 281, I shall speak also to Amendment No. 290. The current arrangements for sex education, as reenacted in the Bill, mean that no reference to issues relating to sexual health can be included within the programme of study for the science national curriculum. The amendment seeks to remove that restriction.
In 1993, a law was introduced to separate sex education from science so as to make it easier for parents to withdraw their children from sex education in primary schools in cases where the Government had decided that sex education should be taught at all. We do not know how many primary schools do not include any sex education, although how a curriculum can be broad and balanced without it, I do not know.
However, in secondary schools, where sex education must be taught, since 1995 education about the common and dangerous disease of HIV/AIDS has been outside the national curriculum—that is, it is not examined and not compulsory for all children whose parents can still withdraw them.
I am aware that there is nothing to prohibit a teacher answering a question about any aspect of sexual health, including AIDS, during a science lesson. There is also nothing to stop a governing body incorporating sex education within its science curriculum, although parents still have the right of withdrawal. Therefore, the existence of this subsection on the face of the Bill is nonsensical because it is relatively easy to get round if one believes, as I do, that we have a duty to inform young people about this modern—day plague.

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The fact that it is nonsense became very clear in the debate on the Bill in another place. The honourable Member for Epsom and Ewell, Mr Chris Grayling, asked whether it was the case that science teachers may not refer to AIDS or HIV in a science lesson or give any indication of their nature. He said that if that were true, it was nonsense. I agree. In reply, the Minister, Mr Ivan Lewis, confirmed that nonsense. He said that it was the case because of legislation introduced by a Conservative government. We cannot rely on a stray child asking a stray question or a governing body feeling so strongly about the matter as to include it in the curriculum.
Ofsted has already identified the problem and its associated dangers. A recent report by Ofsted, published in 2002, found that:
"Education about HIV/AIDS is receiving less attention than in the past, despite the fact that it remains a significant health problem. Education about parenthood does not feature in all secondary schools' programmes even though most schools recognise its importance".
The report concluded that,
"more attention should be given in secondary schools to education about HIV/AIDS and about parenthood".
It is the Government's duty to equip our children with the defence of accurate factual information against this dreadful disease. We must ensure that by removing this nonsense from the Bill. There are plenty of safeguards to ensure that the provision of sex education in schools is made responsibly, sensitively and in consultation with parents, but we must not miss out this vital information. It is more important now than it was even in 1993 because many people have become complacent now that the full horror of this widespread disease has worn off.
International travel, the proliferation of intravenous drug-taking and the earlier sexual activity of young people make it essential that we do not let them down by keeping them in ignorance. We cannot rely on peer group education. Children's misunderstandings of matters sexual are notorious among those of us who have taught it. We all have funny stories about the silly ideas that some children pick up and about the misinformation that children give to each other. They must have the facts, and they must have them from a qualified teacher and not from their friends. In view of all that, how can the Minister justify this provision? I beg to move.
5.45 p.m.
Lord Peston: I want to be as supportive as possible in speaking to this amendment. Like other Members of the Committee, I have always been rather bewildered as to what this subject is about. Starting with the amendment and the science curriculum, so far as I can see it would be perfectly lawful to teach science and talk about the immune system of the body. One can give all kinds of examples so long as one does not mention HIV. More generally, in relation to biology one can teach reproductive processes in every possible way so long as one does not stray into what might be regarded as sexual matters—whatever that means—as
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opposed to the reproductive system. Therefore, I am mystified as to what the amendment can possibly mean in relation to science.
However, the situation is worse than that because several other subjects are taught in schools, as we well know. I start with geography. Am I to understand that, although one cannot teach children about HIV in a science class, if one was teaching the geography of sub-Saharan Africa—precisely along the lines that the noble and learned Lord, Lord Brightman, told us that geography as a science should be taught—one would be allowed to mention AIDS as a major problem in that area? I am not clear about that. Science may not mean geography in this case, or it may mean geography in which case one cannot mention AIDS and therefore cannot account for the experience of sub-Saharan Africa and teach the subject to students.
In returning to, in my case, my favourite nonsubject—in the case of most other Members of the Committee it may be their subject; namely, citizenship—are we supposed to be able to teach citizenship without mentioning sexual practices or sexual morality and so on? If we can do that, are we then also to be told, "Of course, you mustn't mention AIDS"? It is rather like the famous example of "Don't mention the war". In relation to teaching, the whole matter seems to me extraordinary.
It seems to be based on the notion that, if a teacher does not mention the subject—I believe that this what the noble Baroness, Lady Walmsley, was implying—young people will know nothing about it. They may say, "Oh, I didn't know anything about that and now my whole life has been corrupted because the teacher has mentioned it".
Therefore, I am amazed that the Government have not taken the opportunity to do precisely the opposite of what they are doing. I am amazed that they do not say that we live in a liberal and free society and one in which children can be trusted to be taught freely and openly and that there are no major worries in that respect. That seems to be different from saying, "I don't want my children to have sex education lessons." I have never understood that attitude but I respect parental wishes. However, that is not what the amendment seeks to achieve. If parents were to ask me, I should say, "You're being silly here. This is not to the advantage of your children".
The noble Baroness said that she wished that the national curriculum had been available to her. I certainly wish that sex education had been available in my school. At my school, the children had to make it up and mostly got it wrong. We were amazed to discover what it all turned out to be. It was a better deal than we had worked out, but that is another matter.
I believe that this subject is most important. It lies at the very heart of our approach to education and education philosophy. I am amazed that my noble friend and the Secretary of State have not taken the opportunity to strike this matter from our approach to the curriculum. They should do so if on no other grounds than that the last thing young people in this country need is irrationality built into our approach to education.
Baroness Blatch: For clarification, is the noble Baroness able to tell us why this provision was included in the Bill in the first place? I understand that, in fact, the science curriculum does include learning about the science of AIDS and sexually transmitted diseases. Certainly, the circular—I wish that I could remember its name; the noble Baroness, Lady Massey, is nodding her head in agreement with me—refers to schools dealing with the aspects spelt out in this clause within the science curriculum. Therefore, I am puzzled as to why this subsection is included in the Bill.
Baroness Ashton of Upholland: Clause 83(12) specifically prevents the Secretary of State from including AIDS, HIV, STDs and sex education in the national curriculum science programmes of study. It re-enacts existing legislation in Section 356 of the Education Act 1996.
I am concerned about the Ofsted report—as was the noble Baroness, Lady Walmsley. We have responded by commissioning new guidance for teachers on HIV and sexually transmitted infections, which will provide up-to-date information and references to tried and tested classroom resources. We expect that guidance to be available later this academic year. We must be clear with children and young people, who need to be well aware of the dangers of HIV and AIDS.
Removing subsection (12) would have no direct legal effect on what can be taught in the classroom. The subsection merely prevents those topics being compulsory in the national curriculum programme of study—it does not prevent teaching those topics. The amendment seeks to ensure that important issues are taught within the curriculum. I hope to put the minds of Members of the Committee at rest on the issue.
Clause 76(1)(c) and its equivalent in Wales, Clause 97(1)(c), provide that the curriculum for every maintained school shall comprise a basic curriculum which includes,
"in the case of a secondary school, provision for sex education for all registered pupils at the school".
Schedule 21(57)(c), which relates to general interpretation, re-enacts the definition of sex education thus:
"'sex education' includes education about…Acquired Immune Deficiency Syndrome and Human Immunodeficiency Virus, and73x2026;any other sexually transmitted disease".
This means that these topics are covered within the basic curriculum—at present within personal, social and health education. That is the appropriate place for those matters to be discussed. It follows that if subsection (12) were removed, we would not alter the programmes of study. Otherwise, parents would lose the right to withdraw their children from sex education lessons that cover HIV, AIDS, STDs and so on. As those topics must be covered as part of sex education and nothing in the Bill prevents teachers from doing so, I hope that the noble Baroness will feel able to withdraw the amendment.
Lord Alton of Liverpool: The Minister has given the Committee an assurance that such issues are covered
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anyway in PSHE classes and that will continue to be the case. Why has science been singled out? As the noble Lord, Lord Peston, said, it is quite proper for people to discuss the AIDS pandemic in Africa in the teaching of geography. Although I personally have no difficulty with such issues, which I discuss with my children and which are discussed at their schools, I am grateful for the Minister's assurance. Some parents may not want their children to be taught about such matters at school and will wish to reserve that right to themselves. Will the Minister clarify for the Committee's benefit and for those who will read this exchange outside that this Bill will not: affect that right?
Baroness Blatch: The subjects in question can be taught in science. I believe that the Minister was making the distinction that when it comes to national curriculum science, which is a compulsory subject, it would be difficult for parents to exercise their right under the law to withdraw their children. In practice, there have been almost no incidences of parents doing so. The circular makes it clear that when questions arise informally in the classroom, they can be dealt with by a teacher. The only prohibition in the classroom is on proselytising homosexuality. The obligation and right of a teacher to respond to classroom questions is not inhibited but is included in the circular.
Baroness Massey of Darwen: The personal, social and health education curriculum is in guidance. It is not a compulsory, statutory subject.
Lord Lucas: I was puzzled by the Minister's reply. Is she saying that because AIDS is part of the sex education curriculum, when that subject is raised in school it has to be regarded as sex education? Can a teacher not cover what is happening—for example, in South Africa—without giving pupils the right to opt out? If that is not the case, what on earth is the reason for excluding the subject from science? The immune system is a part of key stage 4 science and if one is teaching that system, one absolutely must discuss AIDS as something of which every ordinary child will be aware from discussion and advertising. It seems extraordinary to say that such education must have a man with a red flag walking in front of it and that pupils who do not want to receive sex education must go home. Is that really what the Minister is saying?
Baroness Ashton of Upholland: I was saying that we are re-enacting what was already in legislation. Teachers are not prevented from talking about such subjects—the noble Baroness, Lady Blatch, put it extremely well. Teachers would continue to do what teachers do. The subsection makes it compulsory within the science curriculum to talk about AIDS, HIV, STDs and sex education in that context.
We have always made it possible for parents to withdraw their children from sex education. Members of the Committee may not desire that for their own children. We would argue that sex education is really important, particularly in view of the increase of HIV

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in the heterosexual community. Subsection (12) allows us to be clear about the national curriculum's compulsory element and to protect the rights of parents who wish to withdraw their children from sex education.
Lord Peston: I am completely puzzled. I should not have remarked about sex education because it is not central to the issue—which is how the national curriculum is taught. The noble Lord, Lord Lucas, asked the central question. Does a mention of AIDS, as one example, within any subject make that subject sex education and therefore immediately invoke the possibility of withdrawing a child from the class? If it does—which I find hard to believe—there is something seriously wrong. If it does not, we have something of a Morton's fork. If the rule does not apply, it should not apply to science as well. The Government cannot have it both ways. Either parents must have the right to withdraw a child every time that AIDS is mentioned or on no occasion may they do so, when AIDS is mentioned in curriculum subjects.
My noble friend has been most helpful throughout the proceedings on the Bill, saying that she would like to think about things again. She would be well advised to reflect on the proposed amendment without turning it down categorically.
Baroness Blatch: As far as I know, the department's current guidelines and guidance allow for all that the noble Lord, Lord Peston, described. The only reason for re-enacting part of a previous statute is to modify it—otherwise it remains. As I understand it, nothing has changed. If the Government plan to change something, what is the distinction between what is on the statute book now and the guidance that flows from it, and what the Government propose in Clause 83(12)? The Minister has not made that clear.
Baroness Ashton of Upholland: It is clear that I must reflect further on our discussion, so that I can answer the question asked by the noble Baroness, Lady Blatch, in full and consider further the issues that have been raised. The Committee will understand that I seek a solution that enables us to be clear about parental roles, responsibilities and rights, while ensuring that children are taught appropriately, as all noble Lords want.
On that basis, I am happy to consider the matter, and I hope that the noble Baroness will withdraw the amendment.
6 p.m.
Baroness Walmsley: I thank the Minister for her willingness to consider the matter further. We have a great muddle here. I see no reason why the Government should not have the courage of their convictions and remove the subsection, if, as the Minister said, its removal would have no effect. The subsection is misleading.
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We all believe that what we teach children should be relevant to their everyday life, so it makes no sense to teach them about the immune system in a science lesson without referring to the aspect of it that they are most likely to encounter these days—the increase in the incidence of HIV/AIDS, particularly in the heterosexual community. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 83 agreed to.
Clauses 84 to 99 agreed to.
Clause 100 [Curriculum requirements for the foundation stage]:
Lord Roberts of Conwymoved Amendment No. 282:
Page 65, line 39, leave out "may" and insert "shall"
The noble Lord said: In moving Amendment No. 282, I shall speak to the others in the group. Bearing in mind that it is our sixth and possibly last day in Committee, I shall be as brief as I can.
Amendment No. 282 highlights the uncertainty about what is proposed for the foundation stage in Wales. It is clear from Clause 98 that its precise meaning is to be defined in an order to be made by the Assembly. That contrasts with the fairly clear definition of the foundation stage for England and the definition of key stages 1 to 4 in both countries. The Wales Office briefing says that the special section devoted to the national curriculum in Wales,
"allows the Welsh Assembly to introduce a foundation stage for 3–7 year olds".
Is it intended that the foundation stage should incorporate key stage 1? What is the relationship between them?
The uncertainty persists in Clause 100, in which the curriculum requirements for the foundation stage are dealt with. Again, there is a contrast between the firm curriculum requirements of key stages 1 to 3 and the infirm requirements for the foundation stage. According to the Bill, the national curriculum,
"shall specify areas of learning".
Then comes the triple "may"—what "may" be specified in those areas by way of "desirable outcomes", "educational programmes" and "assessment arrangements". The Bill defines those terms reasonably well but fights shy of further precision in its curriculum description for the foundation stage. All that uncertainty is worrying, and it could lead to all kinds of troublesome situations.
Amendment No. 283 is prompted by the question why the learning of a modern foreign language should be reserved to key stage 3 and not allowed earlier, as a foundation subject. We are all familiar with the arguments; we heard some of them this afternoon. We know the ease with which children can pick up languages. In this context, key stage 2 might make more sense than key stage 3, as it would enable children to learn a foreign language from the age of eight, rather than 12, which is certainly not beyond their capabilities. The Minister has left us for a

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moment, but I would draw her attention to a pamphlet called Language learning, produced by her department. On page 1, it states that,
"In the independent sector, almost all preparatory schools offer a second language to their 5–11 year olds. The maintained sector must do the same".
Yet, the Bill talks about key stage 3.
Subsection (6) of Clause 101 allows the Assembly to amend the preceding subsections, (2) to (5), by order. That means that it can change the core subjects of the national curriculum listed in subsection (2). Why should the Assembly wish to do that? I can understand the exception of SEN pupils; they are covered by the provisions for special cases in Clauses 107 to 110, particularly Clause 109. It makes one wonder what the circumstances might be—apart from the cases specified—in which exemption from core subject teaching might be warranted, especially today, when we rightly lay so much emphasis on literacy and numeracy, the keys to good citizenship and so much else.
I am glad that the Government recognise the special importance of the core subjects, and I cannot see why the Assembly should ever wish to change them or exempt schools from teaching them. Foundation subjects are, of course, a different matter altogether.
Amendment No. 287 refers to Clause 102. I referred to it in an intervention in the debate on Amendment No. 288. As the Bill stands, key stage 4 pupils are limited to learning core subjects and two foundation subjects—physical education and Welsh, if the school is a non-Welsh speaking school, as defined in the Bill. Surely, that is not the intention; it is, nevertheless, the effect. My amendment would make the position clearer by suggesting that other selected subjects from the foundation subjects or approved vocational courses could be taught.
Clause 102(1) states that the national curriculum for key stage 4 shall comprise,
"the core and other foundation subjects".
Subsection (2) repeats the familiar definition of the core subjects, as in Clause 101. In subsection (3), there is a limited definition of foundation subjects. That gives the impression that they are all the foundation subjects that can be taught. I shall be interested to hear the Minister's comments.
I suspect that the proposed limited national curriculum for key stage 4 has something to do with the Government's plans for the involvement of the Learning and Skills Council at that stage. That is why the amendment refers to approved vocational courses. If that is the case, we would like greater detail about what the Government have in mind for key stage 4. I beg to move.
Lord Jones: The noble Lord, Lord Roberts of Conwy, said that he would be brief and he was. However, when in office he did not have a brief tenure. I recollect that when he was in the Welsh Office he had a similar set of portfolios as I had, but his tenure was three times as long as mine. I served in only the fourth administration of the then Mr Wilson and the only
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administration of my noble friend Lord Callaghan. The noble Lord was a distinguished Minister and was, and still is, highly respected throughout Wales. Today he poses a relevant and shrewd set of questions.
Arguably the finest work in our schools today takes place at the foundation stage. The quality of teaching is very high. I agree that the teachers show professional expertise and dedication. The young people in our schools at the foundation stage receive huge benefits from the proximity and number of ancillary staff who are ever present in classrooms. The tenderness of the age to which these amendments refer points to the general rather than to the specific in so far as the guidance and instructions to our teachers are concerned. I like to think that our teachers and their ancillary staff should receive the benefit of the doubt on these matters without the injunction of the word "shall".
The terminology of the amendment is resonant of the era of Anthony Crosland. Some Members of the Committee may remember that his proposed solutions had greater import than the set of amendments proposed by the noble Lord, Lord Roberts, and in reverse, because he rubbed out a "shall" and put in a "may", whereas the noble Lord, Lord Roberts, is advancing the opposite. Mr Crosland.'s decision had a large import on the future of some grammar schools. I wonder whether the noble Lord is advancing rather a hard solution to a general problem.
6.15 p.m.
Baroness Farrington of Ribbleton: Before I respond to the amendments tabled by the noble Lord, Lord Roberts of Conwy, I am sure that he and other noble Lords will want to join me in welcoming the fact that the provisions in the Bill provide, for the first time, a separate national curriculum for Wales. Part 7 of the Bill relating to Wales re-enacts existing legislation to reflect better the distinct structure of the national curriculum in Wales. That has the full support of the National Assembly and has been warmly welcomed by local authorities, schools and others involved in education in Wales.
For the record, it may help if I tell the Committee that the changes that we discussed with my noble friend Lady Ashton on the previous amendment—the separation out of the parts that deal with Wales—are the reason for the re-enactment. The noble Baroness, Lady Blatch, asked why we were re-enacting parts of previous legislation. The reason is to provide in discrete form the provisions as they apply to Wales which, of course, involves re-enacting those that apply to England. I hope that that helps to answer the point made by the noble Baroness.
The National Assembly's paving document, The Learning Country, consulted on a proposal to establish a foundation phase extending from ages three to seven. That proposal received widespread support. However, the full details of how the foundation stage would be implemented and its implications for the first key stage of the national curriculum as it currently exists could not be finalised to the timescale of the Bill. The

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National Assembly is waiting for advice from its Early Years Advisory Panel and from the Qualifications Curriculum and Assessment Authority for Wales on the implications of the foundation phase, in the light of which it will wish to consider a number of issues: for example, whether, and if so how, the desirable outcomes can be better fitted with expectations for key stage 1; the duration of the foundation stage; and any consequent change to the definition of the first key stage for which powers in the Bill allow. That work is likely to take at least until the end of 2002.
Amendment No. 282 would seem to require the National Assembly—this was, I believe, borne out by the comments of the noble Lord, Lord Roberts of Conwy—to establish the foundation stage for the national curriculum for Wales as soon as the provisions come into force. That is inconsistent with our intentions and, indeed, with Clause 104 of the Bill which confers the specific "power" on the Assembly to make orders specifying desirable outcomes, educational programmes and assessment arrangements for the foundation stage. The duty imposed by subsection (1)(a) of that clause is a duty on the National Assembly to exercise its powers so as to establish a national curriculum for Wales for the foundation stage,
"as soon as reasonably practicable".
That wording is consistent with the equivalent clause for England.
The Assembly will consult on the scope and structure of the foundation stage probably later this year. The expectation is that the foundation phase will cover both the foundation stage and key stage 1. The intention is not to remove key stage I altogether. That may allay the fears of the noble Lord, Lord Roberts. Once the Assembly has decided the scope of the foundation stage the order will be final. It will also amend, if necessary, the definition of key stage 1.
Like my noble friend Lord Jones, I pay tribute to and declare an interest on behalf of members of my family for the work of the teaching and non-teaching staff in schools in Wales, especially in the early years. The value of the work that they undertake is widely appreciated by many people in the community.
In response to Amendment No. 283, the National Assembly for Wales takes the learning of languages in schools extremely seriously. It certainly wishes to see pupils opting to study languages beyond the third key stage where it is compulsory for all pupils. The National Assembly's vision for language learning is set out in the national strategy for modern foreign languages, Languages Count, which was debated and approved by the Assembly in its plenary session on 28th February.
That document makes provision for the introduction of modern foreign language teaching in primary schools in Wales on a pilot basis. At this stage, that is the only sensible way to proceed. The noble Lord, Lord Roberts, knows only too well, from the inclusion of Welsh as a compulsory subject in primary schools when the national curriculum was first introduced, the tremendous challenges that that can
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pose for schools, for teachers and for pupils. The number of teachers in primary schools who possess the necessary linguistic and pedagogical skills to deliver effectively a modern foreign language is a real challenge, as is the availability of suitable materials for primary schools and the necessary support structures at local and national level.
For that reason the Assembly is already working with the Centre for Information on Language Teaching and Research, Wales, with Her Majesty's Inspectorate for Education and Training in Wales, and the Qualifications Curriculum and Assessment Authority for Wales, to tackle those issues so that the pilots stand the best possible chance of success.
I hope that the noble Lord, Lord Roberts, will agree that that is the way to encourage language learning in primary schools and should the pilots prove successful, there will be a stronger case for rolling out language teaching in primary schools by designating it a foundation subject. That would be the National Assembly's preferred route and one which can be achieved under Clause 101 of the Bill.
Turning to Amendment No. 284, I do understand the desire to protect the position of a set of core subjects within the national curriculum for Wales. After all, these four subjects, mathematics, English, science and Welsh in Welsh-speaking schools, have been so designated since the national curriculum was first instituted by the Education Reform Act 1988.
There is no current intention on the part of the National Assembly to change any of the core subject requirements. We believe that it would be a mistake to constrain their ability to do so if circumstances altered in the future. Welsh legislation and developments since the 1988 Act have been positive: the position of Welsh as a core subject is now stronger than ever. It is a policy which has achieved a very large measure of consensus.
The content of the national curriculum for Wales is a devolved matter. It is right, therefore, that the Welsh Assembly's freedom of manoeuvre should not be fettered. Furthermore, it is a fact that the power to amend the core subjects of the curriculum is not a new power. An identical power was vested in the Secretary of State by the Education Act 1996, and the Education Reform Act 1988 before that. In practice, as the noble Lord, Lord Roberts, and my noble friend Lord Jones, recognised, the then Secretary of State for Wales held the national curriculum's reins before the devolution settlement.
Clause 102, as drafted, reflects the current position as regards the fourth key stage in Wales. The core subjects, mathematics, English, science and Welsh in Welsh-speaking schools, are all compulsory. As in England, there are two foundation subjects which are also compulsory in Wales. They are physical education and Welsh in schools which are not Welsh-speaking.
As the noble Lord, Lord Roberts, recognised, the National Assembly's vision for education and training to the year 2010, as set out in The Learning Country, indicates that beyond the age of 14 pupils should be offered greater flexibility over and above a core

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entitlement. That could mean less emphasis on the prescriptive approach to specific subjects; it could also mean a greater emphasis on vocational subjects.
There is also concern that if there were to he more compulsory subjects of whatever nature, in some circumstances the impact of the amendment would be to restrict rather than to enhance pupils' options. Pupils wishing to pursue a subject for which they are admirably suited would find themselves unable to do so because of the augmented number of compulsory foundation stage subjects. It could preclude them from exercising their preferred choice. I am sure that Members of the Committee will recognise that one of the issues concerning the size of school is that it can affect the range of options available to the pupils.
I am sure that the noble Lord, Lord Roberts, did not intend his amendment to make curriculum matters worse for key stage 4 pupils in Wales. I hope that he supports the National Assembly's policy of moving towards a curriculum offering pupils greater flexibility to take options which suit their needs and talents, and which match more closely the knowledge and skills needs of Wales.
With those explanations, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Jones: My noble friend was very persuasive. I shall follow her on these amendments. It was good to hear her praise for the teachers of Wales in our primary schools. Only yesterday I spent the morning in the Welsh primary schools of Bronington and Hanmer, the "two church in Wales schools". The work in progress there was splendid. It was superb. The young children were having a wonderful start. They were being led by dedicated and superb professionals. It was clear that both schools were happy and successful.
But it is reasonable at Committee stage to pose a question. My simple and innocent question involves quoting my noble friend who said that for the first time there is a national curriculum for Wales. I take my thoughts some years on, say, to the end of the decade. I seek my noble friend's opinion. Now that we have the likelihood of curricula in Wales and England, will it still be as easy for teachers to move easily, as they do now, from England to Wales and from Wales to England? I do not know whether my noble friend has an opinion on that.
Baroness Farrington of Ribbleton: I cannot think of anything in this Bill which would in any way inhibit the ability of teachers wishing to leave the beautiful Principality of Wales to live in England. It is my experience that many people in schools in England have had the pleasure of being taught by teachers educated in Wales and who were Welsh. I hope that answers my noble friend's question.
I must make it absolutely clear that the national curriculum for Wales is already different from that of England and has been since it was instituted under the provisions of the Education Reform Act 1988. It is important to get that on the record.
Lord Roberts of Conwy: I am most grateful in the first place to the noble Lord, Lord Jones, for his kind remarks about my extended tour of office.
Lord Jones: But we often disagreed quite violently at times.
Lord Roberts of Conwy: I do not believe that the noble Lord need remind me of that. I am also very grateful—
Lord Jones: Perhaps I may also say that the day after I was catapulted from office, I noted that the noble Lord's salary had doubled!
6.30 p.m.
Lord Roberts of Conwy: I had forgotten that. I am very grateful to the noble Baroness for her reply. I shall be brief in my comments on it.
I certainly appreciate that the National Assembly has a lot of work to do on the foundation stage. I am reassured that key stage 1 will be preserved while that work continues. But there is some danger that there will be a delay in Wales. I do not want to see Wales lagging behind in its education reforms.
As regards the foreign language issue, I believe that the noble Baroness is right that it would be wise to have a pilot system working so that we can grasp what is required. Wales, with its Welsh language, is already familiar with teaching that language to non-Welsh speakers. Therefore, I believe that we start with a slight advantage in terms of learning yet a third language.
As regards the core subjects, I believe that the noble Baroness agrees with me that they are vital. I certainly cannot foresee a situation where any of them would be abandoned. Nevertheless, such a change is possible under this Bill. But on the assumption that the change will never be made, which is my best hope, I am quite happy to leave that particular subject.
As regards Amendment No. 287 and the position of the curriculum at key stage 4, I say to the noble Baroness that I believe that Clause 102 reads very badly at the moment if it is to be understood in the way that she described.
Clause 102(1) states:
"For the fourth key stage, the National Curriculum for Wales shall comprise the core and other foundation subjects".
Subsection (2) spells out what the core subjects are. Subsection (3) states:
"The following are the other foundation subjects".
The suggestion is that those "other foundation subjects" are the only subjects that can be taught under the clause, whereas we know that schools can make choices from the other foundation subjects and possibly also vocational courses. Perhaps the noble Baroness will take another look at the wording of the clause. With those remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 100 agreed to.
Clause 101 [Curriculum requirements for the first, second and third key stages]:
[Amendments Nos. 283 and 284 not moved.]
Clause 101 agreed to.
Clause 102 [Curriculum requirements for the fourth key stage]:
Baroness Farrington of Ribbletonmoved Amendment No. 285:
Page 66, line 41, after "fourth" insert "key"
The noble Baroness said: Perhaps I should place on record that I did not compliment those former Secretaries of State for Wales in your Lordships' House. Were I always to do that, it might add considerably to the length of the proceedings. We are blessed with many former Secretaries of State, none more important than those who have spoken.
In moving Amendment No. 285, I shall speak also to Amendment No. 286. They correct two minor and obvious drafting errors by adding the word "key" in the two references to the fourth key stage in the clause. I trust that the Committee will accept that these simple drafting errors should be corrected. I beg to move.
On Question, amendment agreed to.
Baroness Farrington of Ribbletonmoved Amendment No. 286:
Page 67, line 2, after "fourth" insert "key"
On Question, amendment agreed to.
[Amendments Nos. 287 and 288 not moved.]
Clause 102, as amended, agreed to.
Clause 103 [Power to alter or remove requirements for the fourth key stage]:
[Amendment No. 289 not moved.]
Clause 103 agreed to.
Clause 104 [Establishment of the National Curriculum for Wales by order]:
[Amendment No. 290 not moved.]
Clause 104 agreed to.
Clause 105 [Implementation of the National Curriculum for Wales in schools]:
Lord Roberts of Conwymoved Amendment No. 291:
Page 69, line 7, leave out "subsisting" and insert "it exists"
The noble Lord said: In moving Amendment No. 291, I shall speak also to Amendments No. 292 and 293. They are all drafting amendments. It sounds strange to my ear to hear of the national curriculum as "subsisting" at a particular time, when it exists. So far as I am aware, the national curriculum's subsistence does not have a particular meaning apart from existence. It does not have to be fed and watered in that sense of the word.
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With regard to Amendment No. 294, Clause 107 deals with development work and experimentation in schools. Subsection (1) is quite specific. It refers to a,
"particular maintained school or maintained nursery school",
where the national curriculum may be disapplied to a greater or lesser extent by a direction from the Assembly. That is all well and good. However, in subsection (2) the power of direction becomes more general. It is unclear what it means. It could mean a general disapplication of the national curriculum with or without modifications throughout Wales or in a significant cluster of schools. We should not be prepared to give such a general power even in the name of development work and experiments because it runs contrary to the whole idea of having a national curriculum in the first place. I beg to move.
Baroness Farrington of Ribbleton: I confess that I was rather puzzled by Amendments Nos. 291 to 293, to which the noble Lord, Lord Roberts of Conwy, has spoken, in the sense that while I understood what they said, I was rather less than clear about what they hoped to achieve. I am grateful to the noble Lord for his clarification.
In everyday speech, the noble Lord is right. There is no significant difference between "subsist" and "exist". However, in a legal context "subsisting" has a different shade of meaning from "exists". "Existing" conveys the notion of physical existence whereas "subsisting" conveys the notion of legal requirements in force at a particular time. In short, the words "as subsisting" in this clause mean "as in force".
The idea of a national curriculum "subsisting" is not new. It is on the face of the Education Reform Act 1988 and of the Education Act 1996. It is an accepted and well-understood term. I was not aware, before the noble Lord moved his amendment, of any confusion about its meaning which would require the use of different words—whether "it exists" or some other construction.
The provisions of Clauses 105 and 106, to which these amendments relate, are plain enough. They place a duty on the local education authority, the governing body of a maintained school and its head teacher to exercise their respective functions so as to ensure that the national curriculum in place in Wales at the beginning of each school year is implemented.
My conclusion, therefore, is that the current wording expresses the proposition more clearly than the alternative suggested by the amendment. It has the merit of consistency with the wording of Clauses 84 and 85. I hope that the noble Lord, Lord Roberts, will accept that explanation.
I turn to Amendment No. 294. Clause 107 deals with the procedure for disapplying or modifying the national curriculum for Wales, as the noble Lord, Lord Roberts, recognised, to enable development work or for experiments to be carried out in particular maintained schools or particular maintained nursery schools. In Clause 86 there is an equivalent provision.

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Both clauses simply enable the Welsh Assembly and the Secretary of State to make directions which may apply in general as well as specifically.
The intention of the amendment could be to prevent in Wales a "general" direction in the sense that it might apply to all schools or all schools of a particular type. In those circumstances, it would be a misconceived amendment because subsection (2), on which the amendment operates, is an elaboration of subsection (1). The use of the word "particular" in subsection (1) already precludes a direction being given by a reference to a type of description of school. In any case, that outcome could still be achieved simply by individually listing the schools to which the direction applies. Subsection (2) makes it clear that a direction given to specific named schools may be given in general terms—for example, disapplying or modifying the national curriculum as a whole—or in specific terms—for example, disapplying or modifying the national curriculum in relation to a particular subject or key stage.
The provisions of Clause 106 do not confer any new powers on the Welsh Assembly in respect of maintained schools. I think that that was the reassurance sought by the noble Lord, Lord Roberts. Under the devolution settlement, they are available to the Assembly by virtue of Section 362 of the Education Act 1996. Clause 107 re-enacts Section 362 and extends the provision to maintained nursery schools.
The existing provisions have not been widely used in Wales. Indeed, I am not aware of a single occasion on which they have been used by either the former Welsh Office or the National Assembly. But it would be inappropriate to constrain the Assembly's ability to implement its vision of flexibility as set out in The Learning Country.
I hope that my reassurances that we are not extending the Assembly's powers in any way and that the provision is a re-enactment will reassure the noble Lord and that he will feel able to withdraw his amendment.
Lord Roberts of Conwy: If the national curriculum "subsists" in the Education Act 1988, I must bear some of the responsibility—although I share it, of course, with my noble friend Lord Baker, who led our production of that measure.
Baroness Farrington of Ribbleton: If the noble Lord, Lord Baker, had been in his place, I might have been tempted to draw that to his attention.
Lord Roberts of Conwy: Alas, he is not with us on this occasion. I looked up "subsist" in the Shorter Oxford Dictionary and found it defined as "exist". But I rest content that the national curriculum should continue to "subsist" in the Bill.
I am grateful to the noble Baroness for explaining the nature and scope of directions that may be given under Clause 107(2). I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 agreed to.
Clause 106 [Implementation in respect of nursery schools etc.]:
[Amendments Nos. 292 and 293 not moved.]
Clause 106 agreed to.
Clause 107 [Development work and experiments]:
[Amendment No. 294 not moved.]
Clause 107 agreed to.
Clauses 108 to 114 agreed to.
Clause 115 [School Teachers' Review Body]:
6.45 p.m.
Baroness Walmsleymoved Amendment No. 295:
Page 73, leave out line 13.
The noble Baroness said: I rise to move Amendment No. 295 and to speak to Amendments Nos. 296 and 297. Given that the Government have decided to continue with the School Teachers' Review Body, the purpose of Amendments Nos. 295 and 296 is; simply to allow Parliament to review it from year to year to make it more accountable. That is a simple matter of principle.
I turn to Amendment No. 297. It is designed to write into the Bill guaranteed non-contact time for professional development for teachers. It is in line with the recommendations of the School Teachers' Review Body in its last report and it seeks to address the needs of supply teachers and part-timers as well as full-time teachers. One thing that disappoints those of us on these Benches most is the fact that the Bill does not address the key recruitment and retention issues of excessive workload, pupil behaviour and teacher morale. Indeed, by seeking to remove teachers' rights to have a representative on the governing body, the Government seem hell-bent on ensuring that teacher morale declines even further.
The amendment is intended to rectify that. If the Minister would give a commitment to write into the Bill the guarantee of an entitlement to "professional time" during the working day for all teachers, she would go a long way to rescuing the situation. That would make a positive difference to teachers' working lives and improve educational standards.
We are aware that the Government have made a commitment to address the issue of teacher workload through the Workload Review Group followed by the PricewaterhouseCoopers report. That is the first time since 1987 that teachers' conditions of service have been properly reviewed, which is most welcome. Last December, the School Teachers' Review Body was asked by the Secretary of State to consider several possibilities for reducing workload and its report has been widely welcomed. The evidence given to the review was weighty and credible. The report is particularly critical of Government initiatives, stating:
"the volume and pace of change and the associated detailed and frequent planning, administration, monitoring and recording are a major contributor to workload problems and a serious threat to teacher morale and supply".
The report recommends that,
"a guarantee be given that all teachers will have an allocation of time set aside for PPMR at the earliest possible date".

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The Bill's passage through Parliament provides that earliest possible date. The Government asked the questions; they were given the answers; now they must commit to supplying the solution. I beg to move.
Lord Jones:On the question of teacher morale, in my recent forays into schools in north-east Wales, head teachers have always told me of their anxieties regarding the morale of their professional staff. When we visit schools, we are all able to say that the staff are working hard and well and showing great and increased professionalism. Only yesterday, I visited two Church of Wales schools. Head teachers are saying, "Please may we have fewer missives from Ministers so that we can consolidate?"
It is difficult to make that point to Ministers, who themselves are working extremely hard and have a mandate from the nation to improve our schools, but it is a fact that morale is a big issue in the profession. It would be heartening for head teachers and their staff to hear that Ministers in London and the country's other capitals are working on measures and that all have in mind the day-to-day requirements of the teaching staff. After all, those teaching staff are working in the midst of a greater social revolution. Society is changing quickly and the pressures on teachers are growing, not lessening. In many ways, the teacher is now the last line of defence for the values that we hold dear.
So it would be heartening if my noble friend the Minister were able to say that the Government are considering how they may enhance our teachers' morale.
Baroness Blatch: I simply want to add two points. First, I remind the Minister that a letter of mine on the issue of the level of bureaucracy and the bureaucratic burden on schools is still awaiting a reply. Specifically, what is being done now to reduce that burden? I have read the report of the pay review body, which is cogent about the matter.
The other point is that there is a crisis in teaching. The noble Lord, Lord Alton, who is not his place, mentioned earlier that we have an unprecedented number of supply teachers moving in and out of classrooms, sometimes on a half-daily or daily basis, and a real lack of permanent teachers who build up a relationship with other school staff but also, more importantly, with the children. There is also an unprecedented number of teachers who teach subjects for which they are not trained, which will also have an impact. In our discussion on earlier amendments, we said that in just under two years' time, the Government have pledged to have one qualified teacher in place for every 10 children who are now in playgroups and early-learning settings. Many are run at the moment by trained leaders. In future, they will be run by teachers who will be subject to the pay and conditions that fully qualified teachers have the right to expect.
1208
The background to the points that have been raised by the noble Baroness, Lady Walmsley, are set against an existing problem, and there appears to be no sign that it will be eased.
Baroness Ashton of Upholland: In proposing the repeal of the 1991 Act and replacing it with the teachers pay and conditions provisions in Clauses 115 to 126 of the Bill, we in no way wish to disturb the smooth and continued operation of the School Teachers' Review Body. We have no reason to do so. The STRB has worked successfully since 1991 and the Prime Minister has just appointed a new chairman. The STRB needs to continue its work. That is why it is important that the statement that the STRB will continue to exist is set out on the face of the Bill. It is simply a way of ensuring a proper transition from one set of legislation to another.
Were the amendments to be made, the STRB would lose its stability, and there would be danger to the long-established and successful arrangements for providing for independent recommendations to Government on teachers' pay. That would be damaging and disruptive. The STRB could cease to function effectively and the bureaucracy linked to the arrangements as proposed would be excessive.
There is also the issue of what the situation would be if, however unlikely, the STRB's continued existence were to be rejected for whatever reason. School teachers would be left without any means of having their pay and conditions determined. I hope that noble Lords will agree that that is not a situation that we could countenance.
The issues raised in Amendment No. 297 are important and have given rise to some very important statements in your Lordships' House. I have a good deal of sympathy for the points raised and I am glad to have the opportunity to respond to them in debate.
I know that it is really important to secure professional time for all teachers for preparation, planning, marking and related matters. It is for that reason that the Secretary of State drew the 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. The remit letter drew specific attention to the possibility of moving towards a guarantee of professional time for teachers and managers, and of considering changes to contracts to assist in embedding the role of continuing professional development.
It is a key concern for us all for a wide number of reasons that teachers should have sufficient time to carry out professional duties properly and to undertake continuing professional development, both of which help to achieve higher standards of teaching and learning.
Noble Lords will know that the report has now been published and, as the noble Baroness, Lady Walmsley, said, it has been widely welcomed. We look forward to a constructive consultation on the very helpful recommendations, several of which deal precisely with the matters raised in this amendment.

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That brings me to the key reasons for resisting the amendment. 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. It is also inappropriate to seek to introduce into primary legislation something which is currently the subject of quite separate and important discussions. With regard to the matter of professional time, and in respect of the proposed specific requirements relating to time and remuneration for professional development, the amendment is much too restrictive.
The current arrangements, whereby the STRB works in accordance with a public remit provided by the Secretary of State, strike the right balance and work well. The STRB's duty is to make recommendations. I should remind the Committee 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. The Secretary of State can require the STRB to take certain matters into account when making its recommendations, as indeed has been the case with the latest workload report. But the recommendations are its own and Government evidence is taken into account along with all other representations.
The amendment has raised some important matters for discussion, but it would be unhelpful and potentially damaging to the functions and operation of the STRB. I hope that the noble Baroness, Lady Walmsley, will feel able to withdraw it.
Lord Jones: The noble Baroness, Lady Walmsley, referred to morale in the profession. Does my noble friend the Minister have any comments to make about that?
Baroness Ashton of Upholland: I apologise to my noble friend for not dealing specifically with that point. Of course we are concerned about morale. Indeed, the work that we are doing with the STRB on teachers' earnings is related to that. We have discussed the issues of workload, behaviour and children, all of which are of great concern to us.
We are not complacent about the issues involving teachers, but teacher numbers are up by 9,400 full-time equivalents since January 2001. It is the biggest single year increase in more than 20 years. It is important as it is how we measure the strategies and policies that we have put in place. Teacher vacancies in England are down from 4,980 to 4,480. The vacancy rate has fallen from 1.4% to 1.2% The teacher vacancy rate in London is now 2.6% as opposed to 3.5% last year, and vacancies have fallen in all the secondary shortage subjects.
Without being complacent, as I have said, we can look to some of the things that we are doing. There is more to do and morale is crucial in terms of retention. We hope that we have the right policies in place.
Baroness Walmsley: I confess to being rather disappointed by the Minister's answer. This is the first
1210
major Education Bill that we have had for some time and the issue of teacher morale is one of the most serious problems that we face in education today. Although we welcome any reduction in the number of vacancies for teachers, we must bear in mind the point made by the noble Baroness, Lady Blatch, that we shall require many more teachers, particularly in the early-years sector in the next few years. Addressing the issue of teacher morale is crucial to that.
This is an issue to which we shall return not only in this Bill but again and again until the matter is resolved. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 296 not moved.]
Clause 115 agreed to.
Schedule 11 agreed to.
Clause 116 [Review Body: function]:
[Amendment No. 297 not moved.]
Clause 116 agreed to.
Clause 117 agreed to.
Clause 118 [Power to prescribe pay and conditions]:
Baroness Sharp of Guildfordmoved Amendment No. 298:
Page 74, line 36, leave out "the other party to the contract is" and insert "the contract is one made in pursuance of the duties in relation to education of"
The noble Baroness said: I shall be brief. This important amendment will enable the STRB to include within its remit teachers employed or engaged by employment bureaux and other persons employed or engaged as teachers by private employers, providing education services under contract to LEAs or governing bodies. It anticipates the introduction of the EU directive on agency workers and the further development of cases in the European Court of Justice on pay equality for workers of different employers in the same undertaking.
The School Teachers' Review Body system, although flawed, provides an important element of transparency for teachers as it includes consultation and response to submissions by Government, teacher organisations and employers.
The amendment would benefit teachers who are currently outside the pay and conditions document and who are vulnerable to exploitation which has occurred on some occasions. For example, it would be interesting if the STRB had been able to report on opportunities and access to professional development for agency teachers. Access to free, high quality training and professional development has long been an issue for such teachers. It has been extremely difficult for agency teachers even to access national training initiatives, let alone CPD that meets their professional and career needs.
Teachers who work on a flexible or a supply basis serve a vital role in schools; indeed, as we know, they are all the more necessary at present. Given the current

1211
teacher shortage, supply teachers are playing an ever-important part in filling that gap. The need for additional teachers who are able to cover classes is greater than ever before. It is crucial for the pupils they teach that they are valued and given the same professional opportunities as teachers paid under the pay and conditions document.
The NUT has asked us to put forward this amendment. It is a matter about which the union feels most strongly. I beg to move.
7 p.m.
Baroness Ashton of Upholland: I shall respond to this grouping by speaking, first, to government Amendment No. 299. I should make it clear that this amendment represents a purely technical change to Clause 118, which is consequential on the amendments that we are making to Clause 129. I originally intended to move this amendment as part of the group covering those amendments but have acceded to the request from the noble Baroness, Lady Blatch, that the amendments to this clause are taken separately from those concerning teachers' qualifications.
Once the changes have been made to Clause 129, the amendment effectively ensures that the amended legislation will require all qualified and unqualified teachers to be paid under the teachers' pay and conditions document (on different pay scales) while allowing the pay and conditions of teaching assistants to be determined locally—which, of course, is the position under the existing framework. I hope, therefore, that noble Lords will accept this amendment.
I turn to Amendment No. 298. The purpose of the existing Clause 118(3)(c) is to ensure that only directly-employed teachers are included under the pay and conditions provisions of Clause 118. By removing this, the amendment brings into national pay and conditions all teachers working in schools, including agency supply teachers.
Teachers employed by agencies are currently paid and work under conditions set by their employer—the agency. We believe that that is the right approach. We have no desire to change the position. Some teachers prefer to work in this way; they can choose the agency for which they wish to work. Therefore, to make them subject to national pay and conditions would, potentially, have damaging effects on the supply teacher market and the valuable service that agencies provide in quickly meeting schools' need for teachers. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Sharp of Guildford: I am grateful to the Minister for her reply. Can she tell me whether the EU directive covering agency workers will have any effect on the position? It is anticipated that the EU directive will come into operation fairly shortly. As a result, I believe that there will be some knock-on effects in relation to the very issue now under discussion; namely, that agency teachers working in a particular
1212
environment will have to be covered by conditions of employment similar to those that apply to other teachers.
Baroness Ashton of Upholland: I am not sure about the position regarding the EU proposal at this stage. However, I am grateful to the noble Baroness for raising the issue. Perhaps I may write to the noble Baroness and place a copy of that letter in the Library of the House. I shall also send a copy of the correspondence to the noble Baroness, Lady Blatch.
Baroness Sharp of Guildford: With that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Uphollandmoved Amendment No. 299:
Page 74, line 44, leave out "and (c)" and insert ", (c) and (d)"
On Question, amendment agreed to.
Clause 118, as amended, agreed to.
Clause 119 [Order under section 118: scope]:
Baroness Walmsleymoved Amendment No. 300:
Page 76, line 12, leave out subsection (4).
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 301 and 302. The purpose of Amendment No. 300 is to prevent the Secretary of Sate from unilaterally removing pay and conditions provisions from the review body remit. This is yet another example of centralisation and bureaucratic control on the part of this Government, a tendency much regretted on these Benches.
The inclusion of Clause 119 in the Bill appears to be to overturn the NUT's High Court success in the year 2000. The point at issue here is the Government's obligations under the International Labour Organisation Convention. The provisions in the Bill offend against the ILO conventions, even more than the status quo.
The Bill allows even fewer safeguards for teachers than those provided by the School Teachers' Review Body machinery. At least the STRB provides some transparency, as it includes consultation of, and response from, teacher organisations and employers. Any provisions affecting statutory pay and conditions should be subject to those procedures, and not merely consultation by the Secretary of State.
The purpose of Amendment No. 301 is to ensure that, when the Secretary of State is proposing to designate an issue as "subsidiary", she has to consult,
"associations of local education authorities",
and other appropriate organisations. In future, under these provisions, matters that could be considered "subsidiary" and, therefore, outwith the need for the due process of the STRB might be things such as the standards that the Secretary of State may set for different classes of teachers, such as advanced skills

1213
teachers or criteria for progression from one pay scale to another. The latter do not strike me as being subsidiary.
Although it may be reasonable to take out of the review body process those matters that are genuinely subsidiary and inappropriate for undergoing the full scrutiny of the body, there is no mechanism in the Bill for interested parties to be consulted about what constitutes a "subsidiary" matter. There may be cases where the Secretary of State considers a matter to be relatively minor while others may seriously disagree with that view.
The purpose of Amendment No. 302 is to make any guidance on how an order made under Clause 118 should be applied non-statutory, in keeping with current practice. Clause 123(3) specifies that the failure by an LEA or governing body to follow any guidance from the DfES on how an order made under this clause should be put into practice may be taken into account by a court or tribunal.
Under the current arrangements, guidance issued by the department on the provisions of the school teachers' pay and conditions document does not constitute "statutory guidance", and, therefore, failure to follow it would not necessarily be taken into account in a tribunal or court. It seems reasonable to suggest that orders made under Clause 118 should form the basis for the law, without any additional legal requirements being imposed on LEAs and governors through statutory guidance. It is unnecessary complication and has the potential for introducing confusion. I beg to move.
Baroness Ashton of Upholland: I shall begin by dealing with Amendment No. 300. It is our view that this proposal would not be to teachers' benefit, as it would remove existing flexibilities in the 1991 Act that work well and are necessary. I therefore resist the amendment.
It is important that certain matters that are not core professional duties or working time may be determined locally. Indeed, many conditions of teachers' employment are determined locally, and this will need to continue. Under existing provisions, a series of matters, including sick pay and maternity pay, are identified as not to be regarded as remuneration for this purpose. This takes them out of the remit of the Secretary of State, so they may be determined locally or nationally between the employers and the trade union. Most of these matters are agreed nationally and appear in the so-called "Burgundy Book".
Acceptance of this amendment would mean that all such matters would have to be determined by the Secretary of State, removing the area where employers and unions have scope to negotiate. In addition, the amendment would remove flexibility for one-off bonuses, such as "golden hellos", to be established quickly and efficiently without the need for STRB consultation. There is real merit in having arrangements in place to allow for rapid action to deal with particular circumstances that may arise. .I hope that Members of the Committee will agree that this amendment should not be pressed.
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I turn to Amendment No. 301. The noble Baroness's honourable friend the Member for Harrogate and Knaresborough raised the subject addressed by this amendment in debate in Standing Committee in another place, following which my honourable friend the Minister for School Standards agreed to reflect on the matter. As a result, we brought forward a government amendment on Report in the other place to secure the requirement to consult in circumstances where subsection (4)(a) is brought into play. It means that the Secretary of State must consult relevant parties before a matter is added to the list of subsidiary matters that do not require full STRB process.
The amendment would mean that:, in addition, there must be full consultation before a matter is to be removed from the list of subsidiary matters; in other words, if this were accepted, there would be a duty to consult before deciding that a matter should be returned to the full STRB process—a duty to consult before the matter returns to the full process, which would include consultation. That introduces a surplus layer of consultation. During the STRB process there will be full consultation on the detailed proposals.
It should surely be sufficient for such a measure to be subject only to the affirmative resolution procedure to which all Clause 121 orders will be subject. I therefore invite the noble Baroness to withdraw the amendment.
Amendment No. 302 to Clause 123 is unhelpful. The purpose of Clause 123 is to enable the Secretary of State to issue procedural guidance about the practical application of pay orders issued under Clause 118. The guidance which may be issued under Clause 123 is likely to cover more detailed matters which would be better placed outside the legal framework of pay orders and the pay document but which nevertheless LEAs and governing bodies need to follow in order to ensure the fair and effective operation of pay arrangements. The guidance may, for example, cover areas such as the detailed assessment arrangements for the threshold, advanced skill status, and so on.
Subsection (3) gives further clarification of the legal standing of the guidance. Since the matters in the guidance will have a direct bearing on how teachers are treated in the employment context, where the need for fair procedures is paramount, it is necessary to be clear. The key point is that subsection (3) assures them that legal action cannot be taken simply because of a failure to follow the guidance. The subsection makes it clear that if there were a substantive issue giving rise to legal challenge, a failure to follow guidance could be taken into account by a court or tribunal in other proceedings. That is so with guidance generally, but the provision makes it clear that we are not creating any new grounds for legal action.
The important protection for the teacher is that if an employer behaves so badly as to discriminate against, constructively dismiss or unfairly dismiss a teacher, or acts so irrationally as to give rise to a judicial review or industrial tribunal, any failure to follow guidance may form part of the evidence in support of the claim.

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A key reason for the clause is to ensure that employers are not subjected to claims in respect of procedural errors which do not result in any of the serious consequences I mentioned. I hope that with those reassurances the noble Baroness, Lady Walmsley, will withdraw the amendment.
Baroness Blatch: The Minister said that Amendment No. 300 would reduce the Secretary of State's flexibility under the School Teachers' Pay and Conditions Act 1991, which is working well. It is a perennial question, but why the re-enactment? If it is being re-enacted, there must be a reason. The Secretary of State's interference or intervention seems to be extended through the re-enactment, but it would be helpful to know why.
The Minister referred also to golden hellos, but I do not understand what prevents the Secretary of State from introducing such initiatives. We have witnessed the Secretary of State announcing almost without notice bursaries and student loan concessions for new teachers of particular subjects. I am not sure what the clause achieves that cannot be done under the present statute and what protection teachers lose or even gain by it.
Baroness Ashton of Upholland: We are repealing the 1991 Act. In re-enacting this provision our purpose is to ensure that we lay out the role of the STRB in Clauses 115 to 126. The noble Baroness asked about golden hellos. It is important that the Secretary of State is in a position to respond quickly and effectively to issues—including, as the noble Baroness will know, making sure that we retain and recruit teachers. There are long-term strategies to do so, but we want to ensure flexibility. I hope that we are positioning the STRB correctly and that we have looked at the Secretary of State's role, given that flexibility to be used for the benefit of the teaching profession, and put that across in these clauses.
7.15 p.m.
Baroness Blatch: I do not understand the Minister's point about the 1991 Act. In response to Amendment No. 300, she said to the noble Baroness, Lady Walmsley, that she was rejecting the amendment because it would interfere with the Secretary of State's flexibility under the 1991 Act. When I asked her to explain, she said that the Government were repealing the 1991 Act. It does not make sense.
Baroness Ashton of Upholland: We are indeed repealing the 1991 Act, but we are re-enacting the sections that have worked well that we wish to preserve: Clauses 115 to 126.
Baroness Blatch: I know this is tedious, but I return to my original question: if they are being re-enacted, what is the reason for the re-enactment? It is usually because there is a modification; if so, what is the modification?
Baroness Ashton of Upholland: We are aiming to give the STRB the more strategic role it is looking for. We
1216
need to re-enact some of the subsidiary provisions in the 1991 Act. If I am not making myself clear, I will write to the noble Baroness and set the issue out properly and as clearly as possible.
Baroness Walmsley: I thank the Minister for her reply. The issues to which she referred were somewhat technical; therefore I look forward to reading her reply in Hansard before taking the matter further on Report. I am grateful for the response of her honourable friend in another place to the concerns of my honourable friend the Member for Harrogate and Knaresborough on the issue of Amendment No. 301. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 119 agreed to.
Clauses 120 and 121 agreed to.
Clause 122 [Consultation by Secretary of State]:
[Amendment No. 301 not moved.]
Clause 122 agreed to.
Clause 123 [Guidance]:
[Amendment No. 302 not moved.]
Clause 123 agreed to.
Clauses 124 to 126 agreed to.
Clause 127 [Appraisal]:
Baroness Sharp of Guildfordmoved Amendment No. 303:
Page 79, line 34, at end insert "otherwise than a function relating to remuneration".
The noble Baroness said: Amendments Nos. 303 and 304 seek to probe the Government's intentions on performance-related pay. Subsections (2)(a) and (3)(b) of Clause 127 would allow any member of the governing board of a school to have sight of an individual teacher's appraisal report. Subsequent guidance on the clause indicates that it would be limited to those members of the governing board on an appointments committee.
Such a procedure could put internal candidates at a disadvantage vis-â-vis external candidates at interview. At least, as Amendment No. 304 seeks, teachers should have the opportunity to say yes or no as to whether the appraisal statement can be seen.
What is the purpose of appraisal procedures? Are they, as they are theoretically supposed to be, a chance for the individual to have a heart to heart on an annual basis with his line manager in order to assess areas of strength and weakness and to suggest areas for professional development and training and to talk about possible career paths; or are they to be used internally as a tool for performance-related pay?
Amendment No. 303 seeks to separate the remuneration issues from others. Amendment No. 304 makes it clear that if appraisals are to be used in consideration of remuneration, they should be used only with the consent of the teacher. I beg to move.
Baroness Blatch: I part company with the noble Baroness on this issue. I cannot imagine any employer,

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whether in education or outside, who would not consider performance in relation to remuneration. The idea of separating one from the other is incongruous.
I can think of occasions on which an unfair interpretation is put upon performance. There should be in place a robust appeals system and an opportunity for teachers to challenge any determination that is made of his performance and subsequent related remuneration. However, I could not support the idea of dislocating a judgment of performance when determining pay awards.
Baroness Ashton of Upholland: I agree entirely with the noble Baroness, Lady Blatch. I do not recognise as a formal appraisal a heart-to-heart discussion. That is a different process.
It is important that the procedures for pay decisions are sound and fair and we want to ensure that those taking decisions about pay have access to the best possible information about a teacher's performance. Appraisal results are an obvious source of such information. There is already a requirement for a teacher's performance to have been reviewed under the terms of the school teachers' pay and conditions document before taking decisions on pay.
I am sure that the noble Baroness does not intend that when advising the governing body on recommendations for pay a head teacher should be put in a position of having to put out of his mind the contents of an appraisal statement to which he will already have had access and to draw on other less objective evidence to make a recommendation. But that would be the effect of the amendment. Decision-makers need a right of access to appraisal results in order that they have the opportunity to consider the reward of those teachers who have demonstrated sustained and high-quality performance.
I turn to Amendment No. 304. Through this clause, we are taking the opportunity to update and clarify the existing powers for the Secretary of State to make regulations for the appraisal of school teachers. The existing clause does not reflect the current management arrangements in schools and in particular we wanted to make explicit the power to make provisions for the results of appraisal to be taken into account in determining pay.
It is hard to see how it can be right for appraisals to be taken into account only when the teacher in question wishes that to occur. I would not wish to envisage a situation in which consent would be forthcoming only in the event of a glowing report or in respect of the glowing parts of the report. I therefore believe that decision makers need to have access to the full picture.
I hope that the explanation I have given will be sufficient to satisfy the noble Baroness and I hope that she will feel able to withdraw her amendment.
Baroness Sharp of Guildford: I thank the Minister for her reply. I was interested to note her view of appraisal procedures. When I was trained in appraisal at the University of Sussex, I stressed that we should
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not use it in relation to promotion or remuneration. It was an opportunity for line management to discuss career prospects, training and so forth. The two were firmly separated. However, in some education establishments, such procedures are not run quite in that way!
It is one thing to have an appraisal between a teacher and a head teacher. The head teacher is therefore privy to the contents of the report, which is fair enough, and both know it. However, at an appointments committee consisting of a group of governors, the appraisal report is put before the other governors. They may be parent governors and even other teacher governors and it is open to those people to see the report. In proposing the amendment, I was pointing out that that puts an internal candidate at a potential disadvantage as compared with an external candidate. As regards external candidates, I understand that these days written references are open and not confidential. The reference is open and the teacher knows what is said. However, as regards appraisal procedures, it is fair that the teacher should have an opportunity to consent.
I shall not press the amendment. We need to consider it further and possibly return to the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 304 not moved.]
Clause 127 agreed to.
7.24 p.m.
Lord Davies of Oldham: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begins again not before 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Regulatory Reform (Housing Assistance) (England and Wales) Order 2002
7.25 p.m.
The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton)rose to move, That the draft regulatory reform order laid before the House on 13th December 2001 be approved [19th Report from the Delegated Powers and Regulatory Reform Committee].
The noble and learned Lord said: My Lords, the order amends local authorities' powers to provide grants and other financial assistance to homeowners for the improvement, repair and renovation of their homes. These existing powers are discretionary but the legislation, contained principally in the Housing Grants, Construction and Regeneration Act 1996, is highly prescriptive. It provides that assistance must be primarily in the form of grant and subject to a long list of eligibility conditions.

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The order repeals most of this prescription and replaces it with a general power, enabling local authorities to provide assistance for the purpose of improving living conditions in their area. It will therefore give local authorities much greater discretion over designing a policy for the renewal of private sector housing which addresses the needs and problems of their area. It will also enable housing policy to be linked more closely with other policy initiatives such as neighbourhood renewal.
The power will enable authorities to consider forms of financial assistance other than grant. This may be in the form of a loan, either at market rates or at preferential rates, or by taking an equity stake in the property in return for providing help with renovation. The type of package available together with any other eligibility criteria will be determined at local level to reflect local housing market conditions. The assistance may be provided directly by the local authority or with others so it will be possible for authorities to enter into partnerships with RSLs, other non-profit-making bodies or private lenders.
Authorities will also be able to provide assistance to help home owners relocate to another home where in the opinion of an authority this represents better value for money than repairing or adapting the existing dwelling.
The order also makes it easier for authorities to declare and operate renewal areas where poor housing conditions and other social problems are concentrated in a particular locality or neighbourhood. The assistance is not limited to private homeowners, so, for example, in the case of area renewal, assistance could be provided across a whole range of tenures.
The order retains some essential regulatory safeguards. In particular, it requires local authorities before offering assistance to have regard to the ability of the homeowner to make any repayments demanded as part of the package of assistance. It also requires the authority to satisfy itself that any recipient of financial assistance has received proper advice on what is being offered.
The order also provides that the new power cannot be used until local authorities have published a policy which sets out how they intend to use it. That will ensure that the policies are transparent and that under the spirit of best value they have been carefully considered, including full consultation with all interested parties.
Producing a new policy in the light of these changes will take time and the order therefore contains important transitional provisions. Local authorities can use the new power once the order has been made and they have published a policy. However, the existing grant-making provisions in the 1996 Act will remain in force for one year from the date of commencement of the order, thus giving authorities adequate time to prepare their new policies.
The legislative provisions in the 1996 Act concerning mandatory disabled facilities grant are being left largely unamended. The Government regard this grant as an important right to help disabled people to continue to
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live as independent a life as possible in their own homes. Discretionary disabled facilities grant, which is used by authorities to top up the mandatory grant, will, however, be repealed, but the new general power introduced by the order can be used for this purpose. The department will shortly be issuing guidance to local authorities on how they should develop their new policies for housing renewal in the light of the order.
This is an important and helpful order which went through all the stages of the regulatory reform process without suggestions of amendment and has wide support among housing practitioners. I commend it to the House. I beg to move.
Moved, That the draft regulatory reform order laid before the House on 13th December 2001 be approved [19th Report from the Delegated Powers and Regulatory Reform Committee].—(Lord Falconer of Thoroton.)
Viscount Astor: My Lords, I thank the noble and learned Lord the Minister for bringing forward the order. There is little good news from his department but this is a small piece. We welcome the order, as do most local authorities.
It has been an extraordinary day for the Minister. Presumably, the noble and learned Lord is now the senior Minister in the department. After all, Stephen Byers has finally gone but I am afraid that the damage he has done to our roads and railways will last for years. As the noble and learned Lord knows, we have been calling for his resignation for months. Sadly, he has been a dreadful Minister, and has gravely undermined the Government's reputation for the truth. However, I wish the noble and learned Lord good luck in the reshuffle. Perhaps he will be promoted in the morning to the role of Secretary of State. Who knows? We hope that he will certainly be in his place. Perhaps the fact that he is here this evening indicates that he has finally managed to do a deal on the Dome. If he has, we look forward to him coming forward and making a Statement on that.
To return to the order, it is a good order and we welcome it. I have one brief question. Presumably the order was signed by the Secretary of State, who has now resigned. Does that mean that it is still valid? As it goes through this place, is it still a valid order? Perhaps the noble and learned Lord could answer that question. However, we shall certainly do all that we can to assist its passage through this House.
Baroness Maddock: My Lords, I shall resist the temptation to talk about matters other than the order. I, too, welcome the order, as do my colleagues on these Benches. Interestingly, not only does it give more sensible powers to local authorities, consolidating what has gone before; it gives local authorities more freedom to deal with disrepair.
The last time that I spoke about an order that was before the House, I was very critical of the way in which the consultation had been carried. This time, it seems to have been exemplary. Where possible, in the advice accompanying the order, the Government have taken on board much of what was said.

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I particularly welcome the fact that park homes are included in the provision. I feel strongly that they provide a very good form of housing for elderly people. It has been a problem that those living in such homes have been unable to get things done that others have been able to do. This is a good sign. I should like to see park homes treated much more as a part of mainstream housing.
One of the issues raised in the consultation was that although the permissive powers are very good, the resources to carry them out are not huge and have been reduced in recent years. In 1979, subsidies for building and refurbishment were £11 billion; by 1999, they had been reduced to £3 billion. The reverse was the case for housing benefit. We need to consider carefully how to deal with this matter.
To return to an "old chestnut", if VAT were to be reduced on refurbishment, the money that local authorities had to carry out their responsibilities in assisting with the refurbishment and repair of properties would go a good deal further. It is a point worth making. Some 2 million homes in this country—mostly privately owned—are in urgent need of repair. That would be a useful thing to do.
With the proviso that I want to see ways of getting more money into this area—admittedly the loan facility will mean better use of the money—I welcome the order. However, when the Minister has an input into the spending review, will he bear in mind the issue of the funding of repairs; and will he again take the opportunity to raise the issue of VAT on repairs?
Lord Falconer of Thoroton: My Lords, I thank the noble Viscount and the noble Baroness for their support for the order. On the point raised by the noble Viscount, the order has yet to be signed. It will not be signed until the process has ended, on 6th June. It will be signed by the Minister of State and by the Secretary of State for Wales, so I am quite sure that it will be valid.
I particularly endorse the noble Baroness's reference to the park homes issue. I am sorry that the noble Lord, Lord Graham, is not in his place to hear it mentioned. On the point that she made in relation to the spending review, she will know that I cannot comment on those issues.
The noble Viscount referred to the Secretary of State's resignation today. It was done with considerable courage and dignity—which is more than can be said for the remarks that the noble Viscount has just made.
Viscount Astor: My Lords, the noble and learned Lord said that the order would be signed by the Secretary of State for Wales. Does his remit also cover England in this matter?
Lord Falconer of Thoroton: My Lords, at the bottom of the order reference is made to Wales as it also covers Wales. Therefore, the Secretary of State for Wales has to sign it.
On Question, Motion agreed to.

Regulatory Reform (Carer's Allowance) Order 2002
7.35 p.m.
Baroness Hollis of Heighamrose to move, That the draft regulatory reform order laid before the House on 17th December 2001 be approved [19th Report from the Delegated Powers and Regulatory Reform Committee].
The noble Baroness said: My Lords, the provisions of this order do three things. First, they help older carers, particularly those on low incomes. From the end of October 2002, carers over the age of 65 will be able, for the first time, to qualify for invalid care allowance (ICA) on the same basis as younger carers: that is, they must be caring for a minimum of 35 hours a week for someone receiving certain qualifying benefits, usually attendance allowance or DLA care component at the middle or higher rate, and not be in gainful employment or full-time education.
The order will help older carers with no retirement pension, or a low rate of retirement pension, by increasing their income by up to £42.45 a week. It will also help carers—the more usual group, I suspect receiving the minimum income guarantee by giving them access to the carer premium, currently £24.80 a week. An estimated 40,000 older carers are expected to benefit from the change over three years.
This change removes the present anomaly which prevents carers aged 65 and over from claiming ICA, but allows people who qualified for the benefit before they reached that age to continue to be entitled after that age even though they have ceased to be carers or have entered gainful employment. From October 2002, subject to a further change that I shall describe in a moment, entitlement to ICA will stop when the person ceases to be a carer or otherwise no longer satisfies the conditions of entitlement to the benefit.
People aged 65 and over and entitled to ICA at the date of the change will not be affected by this change. They will continue to be entitled until their claim ceases for some other reason—for example, residence and presence conditions.
Secondly, the provisions of this order will ensure that, from the end of October 2002, entitlement to ICA will continue for up to eight weeks for carers of all ages following the death of the severely disabled person. This will help ex-carers who have recently been bereaved by giving them time to adjust and make plans for their own future. An estimated 10,000 carers will benefit over three years. The carer premium already has a similar eight-week roll-on. In other words, at present, those on income support receive the roll-on; those who are not, but are in receipt of ICA, do not. We are now extending the roll-on to other carers.
Thirdly, the order changes the name "invalid care allowance" to "carers' allowance". This is not a cosmetic change; it is both essential and appropriate. It was very much wanted by the Carers National Association. It is essential to underline the fact that the

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benefit is for carers and their needs, and is appropriate because it removes the negative connotations associated with the word "invalid".
I am delighted to be bringing these changes to the House. I think that they are wonderful, and I commend the order to the House. I beg to move.
Moved, That the draft regulatory reform order laid before the House on 17th December 2001 be approved [19th Report from the Delegated Powers and Regulatory Reform Committed].—(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, the noble Baroness and I had an exchange at Question Time today; we have spent some three hours in Grand Committee upstairs since then; and now we are opposite each other again. Someone is bound to say that we cannot go on meeting like this!
Although the noble Baroness, from time to time, pleads collective responsibility when her enthusiasm for a particular measure may be doubtful, this order is something of a personal victory for her, and she ought to be congratulated on it. It is a significant improvement for a group of people whom we are now to know as "carers". The representations that we have had on their behalf—from Carers UK, for example—show just how much this help is needed. A third of such people are on income support; eight out of 10 have to give up work in order to care for someone; one in three are, or have been, in debt; they have very little by way of savings, indeed some have no savings at all. Therefore, this is a welcome order, and we are glad to see it.
I hope that the noble Baroness may be able to clarify one point. The order is introduced under the regulatory reform programme. This is the first occasion on which we have amended a social security Act under that programme. Therefore, the Secretary of State has to make various statements at the beginning of the order. I am slightly puzzled by paragraph (b), which, after "Whereas", states that,
"this Order creates a burden affecting persons in the carrying on of certain activities".
On whom does the burden of the order fall?
Baroness Hollis of Heigham: My Lords, I do not know to what the noble Lord is referring. I am looking at the regulatory reform order but cannot find the reference.
Lord Higgins: My Lords, I am referring to the Regulatory Reform (Carer's Allowance) Order 2002. The order begins with the word "Whereas", after which, under paragraph (b), it goes on to say that,
"this Order creates a burden affecting persons".
On reading the order itself, however, my impression was that, far from creating a burden, it gives considerable relief to this group. So I am simply wondering who are the group on whom a burden is
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being imposed, despite the fact that, on balance, the order may cancel out that burden. That is the first point.
As the Minister pointed out, there is also a change in the name of the benefit from invalid care allowance to carer's allowance. Name changes have been controversial in many cases, not least in the change of "social security" to the rather sordid "work and pensions". However, the change to carer's allowance is entirely appropriate and we welcome it.
The Select Committee on Delegated Powers and Regulatory Reform made a number of points on the order in the context of the regulatory reform programme. Although it does not recommend any change to the order, it had one concern. It seems that a very small group of carers aged under 65 will not be able to benefit from the current concession allowing entitlement to the allowance of those over 65 to continue after the death of the person cared for. We certainly welcome the fact that the benefit is to continue after the death of the person cared for, albeit for a limited time, because clearly it is a period of great trauma when those concerned are under considerable stress. However, what we are not clear about is how the Government propose to resolve the problem with regard to those just under 65.
I gather that, annually, on average—although it is a rather precise number for an average—about 233 individuals would be affected by withdrawal of the current concession. Various ways of getting round the problem have been examined. As I understand it, the department has argued that, in such a situation, the individuals concerned would be protected by other forms of income support including the minimum income guarantee. I think that, in her opening remarks, the Minister explained how that particular provision would operate. However, will this particular group receive an amount over and above the minimum income guarantee, equivalent to the amount received by those helped by the order?
Those are the main points that need to be made. We congratulate the Minister on the way in which she has sought to help this particular group. I hope that, in her reply, she will answer the specific points that I have raised.
7.45 p.m.
Lord Addington: My Lords, we on these Benches welcome this package, which almost completely mirrors the proposals in our own policy document. I do not know whether it is a matter of great minds thinking alike or of someone copying over someone else's shoulder, but I do not suppose that it really matters very much. The changes are generally to be welcomed, although we could discuss in detail and at length where we should go from here. The main point, however, is that the changes are definitely beneficial. In relation to the eight-week continuation period, I remember my much lamented friend Lady Seear saying that we should not expect people to go straight from the grave to the benefits office. People have long struggled for that civilising factor, and I welcome it.

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There is much more to be said about future reforms to enable more people to benefit and to transfer other related benefits to carers. For now, however, I shall simply say that we welcome this package.
Baroness Pitkeathley: My Lords, there are few noble Lords who would welcome this change with greater joy than I do. Carers have for many years regarded as discriminatory the requirement that carers must be under 65 to claim invalid care allowance. We first identified the problem in 1986, when I first joined the carers movement. I was shocked to discover how many people in their 70s, 80s and even 90s were still caring for someone else. The change does not necessarily mean that carers will receive the benefit. However, the underlying entitlement not only gives them access to the carer's premium as a top-up to income support: it recognises that carers have additional costs in caring. It also gives them an underlying entitlement to housing benefit and council tax benefit.
For me, the eight-week extension only too clearly recalls Baroness Seear. I was with her when the carer said to us, "We are expected to go from the graveside to the job centre". I remember that phrase being used, as will the noble Lord, Lord Newton, whom I am very glad to see in the Chamber. This change is also extremely welcome.
With the introduction of the work-focused interview, carers felt that they were not in a position to benefit from back-to-work advice. Moreover, many carers felt that that would be inappropriate. This change gives them some breathing space and brings the benefit into line, as the Minister has reminded us, with other benefits such as the carer's premium. The order also recognises that financial as well as emotional adjustments have to be made when caring ceases. I think that that is a very important point.
Some may not think that the name change is greatly significant, but that is not how carers feel. On the basis of carers' comments, Carers UK feels very strongly that the change is significant. The change is also extremely welcome because it will reduce confusion. Many carers already call this benefit the carer's allowance. Furthermore, as the Minister said, the word invalid is outdated and many disabled people find it offensive.
The war for carers is certainly not over, but many battles will have been won if the order is passed. On behalf of the carers' movement, I should like, if I may, to add my own personal tribute to the noble Baroness, Lady Hollis, for her tenacity on this issue over the years and her total commitment to getting a better and fairer deal for carers.
Baroness Hollis of Heigham: My Lords, I am delighted and so pleased at the warm welcome for the order. I was puzzled when the noble Lord, Lord Higgins, mentioned the word burden as that was the last thing that I had in mind. I therefore spent some time trying to find the word in the order, after which I asked my noble friend Lady Farrington if she could find it. We could not find it, and we wondered whether
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we ought to change our spectacles. However, she had the shrewd idea that we should instead go to the Box, where we discovered that the word burden has been removed from the latest draft, after the first-stage scrutiny. Clearly, therefore, as a result of scrutiny, we decided that it was not a burden any more. I do apologise to the noble Lord, who is clearly unintentionally working on an old draft.
Lord Higgins: My Lords, as far as I am aware, my copy of the order came this afternoon from the Printed Paper Office. I am therefore somewhat puzzled by the matter. As my preparation for this was rather late, it is unlikely to be out of date. However, if the burden has been removed, let me ask the Minister a hypothetical question. What is the burden that has been removed?
Baroness Hollis of Heigham: My Lords, to give a hypothetical answer to a hypothetical question, it was removed because it was not a burden. I offer my sincere apologies if your Lordships have received a draft that is not as up-to-date as it should be. I presume that noble Lords have a formatted version which has now been changed. I intervened as regards the noble Lord, Lord Higgins, because I was baffled by his comment. Regulatory reform orders must be exposed to a series of analytical questions before they can proceed. Is it a burden? The answer clearly is that it is not. If there is anything further I can add as regards an earlier draft and the current one, I shall write to noble Lords. But, as I say, I am puzzled by that remark.
The substantive point concerned what the noble Lord, Lord Higgins, called "losers". The noble Lord will know that the general rule is that there is no overlapping of benefits. One does not receive both retirement pension and carer's allowance. That is why it is available to those people who have incomplete retirement pension records, and so on.
However, there is another important advantage. If you are on retirement pension topped up by MIG, you would be entitled to a carer's premium worth £24.80. That is an additional resource for those over 65. A small number under 65 will not continue to receive it. All of those who currently receive carer's allowance and are aged 65 and over are transitionally protected. In other words, only people who would have come on to the benefit in future are affected. It was always something of an anomaly that someone coming on to carer's allowance in their fifties or sixties could continue to receive it after the eight week period of adjustment time when the person they cared for had died, whereas someone who became a carer over the age of 65, whatever the degree of their —responsibilities, was never eligible. That is what we have tidied up.
Obviously, anyone between 60 and 65 who is not yet a carer but may become a carer will be eligible for MIG. It is worth reminding ourselves that, particularly for younger carers under the age of 65, the average period of caring is about three to three and a half years. So people move quite quickly through the caring situation unless they are mothers of a severely disabled child. The long-stay carers—I look to my

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noble friend for support—are likely to be those over 65 who are caring for a spouse. They, in particular, will benefit from the measure.
As I say, I am delighted that the measure has received such a warm reception, particularly from my noble friend who did so much before she joined the House to advance the cause of carers. I also pay tribute to Harry Cayton of the Alzheimer's Society. Those two people together have turned much of our thinking around. As the noble Lord, Lord Higgins, said, if you are a carer you are likely to find yourself not only in poor health and in poor finances but also so isolated that when your time comes to be cared for there is no one to care for you. I am glad that we are making a modest contribution tonight by helping, at least in a financial sense, to avoid that sorry situation for people who have devoted their lives to helping other people.
On Question, Motion agreed to.

Veterinary Surgeons Act 1966 (Schedule 3 Amendment) Order 2002
7.53 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)rose to move, That the draft order laid before the House on 21st March be approved [24th Report from the Joint Committee].
The noble Lord said: My Lords, the Government announced as part of the action plan for farming that they would review the scope for properly trained and regulated paraprofessionals to undertake certain activities which the Veterinary Surgeons Act 1966 currently reserves to veterinary surgeons. This amendment order is the first step in a series of proposed changes to the legislation which will allow fully competent and qualified lay people to carry out certain acts of veterinary surgery without detrimental effect on animal welfare.
Currently, a qualified veterinary nurse is permitted under Schedule 3 to the Veterinary Surgeons Act to administer medical treatment or carry out minor surgery not involving entry into a body cavity on companion—that is, pet—animals at the discretion of the employing veterinary surgeon. There are essentially two parts to the amendment order. First, it would enable registered veterinary nurses who have had appropriate training to carry out any medical treatment or minor veterinary surgery not involving entry into a body cavity on animals of any species provided the directing veterinary surgeon is satisfied that they are qualified to do so. Secondly, it will allow student veterinary nurses to give medical treatment and carry out minor surgery during their training. This must be under the direction of a veterinary surgeon and under the direct supervision of a veterinary surgeon or a registered veterinary nurse. Where students are carrying out surgery, that supervision would be direct, continuous and personal.
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The principal reasons for these proposals is the desire to extend the role of veterinary nurses in animal care. We agree with the representations received from the Royal College of Veterinary Surgeons and the British Veterinary Nursing Association that the current legislation is unnecessarily restrictive. A significant number of veterinary nurses are qualified to undertake more than is allowed currently by the Act. A wide range of interested parties have been consulted and the proposal is broadly welcomed by all those who responded provided that nurses are qualified to treat the species involved.
Finally, the proposed amendment is a reflection of this Government's commitment to listen to the representations of professions in the veterinary and allied sectors. With that in mind, the Government believe that this work is important. I commend the order to the House.
Moved, That the draft order laid before the House on 21st March be approved [24th Report from the Joint Committee].—(Lord Whitty.)
Baroness Byford: My Lords, I should like to add my support for the order accepting that it is a tidying up operation. The Royal College of Veterinary Surgeons and the British Veterinary Association point out that the current legislation is restrictive, as the Minister said. There are a significant number of veterinary nurses qualified to undertake more than is presently allowed by the 1966 Act.
The Minister said that the measure was a response to the Government's action plan for farming. However, the Royal College of Veterinary Surgeons council in June 2000 made representations to the Government. Its aim was,
"to increase the range of tasks which veterinary surgeons can safely decide to delegate to an appropriately trained professional".
Some of the changes in the order were proposed by the RCVS in November 2000 and put to the Government for consideration. We are grateful that the Government responded. I understand that the RCVS and the BVA are setting up a working group to consider the 1966 Act, looking in particular at veterinary nurses' governance and their training programme.
I understand that the amended paragraph 6 of the schedule opens the way for listed veterinary nurses to treat animals other than companion animals. In the first instance this will probably apply to horses and equine animals although I accept that the Minister said that it will apply to all species. That is urgently needed as in the Veterinary Record of 27th April this year Mr Julian Wells, the outgoing chairman of the British Small Animal Veterinary Association, reflected that,
"the drop out rate of veterinary nurses between enrolment and qualification was currently being investigated as it stood at somewhere around 50 per cent".
That is a terrible drop-out rate.
I have one or two questions for the Minister. Does he envisage that the measures proposed in the draft order might be a forerunner to imposing greater restrictions on veterinary procedures which are

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normally carried out by farmers on their own livestock? The Minister also talked about student nurses getting approval to participate in minor procedures under approved supervision. We welcome that.
Will the Minister clarify paragraph 6(c) which states:
"the registered veterinary surgeon or veterinary practitioner directing the medical treatment"?
My question may sound flippant but it is not intended to be in this modern day and age. Does that mean that the relevant person will be in the same room? The Explanatory Memoranda uses the words "under the direction". Could such direction be given, for example, via video conferencing or by personal supervision at a remote distance if an emergency arose?
A slightly broader question relates to the number of state veterinary surgeons currently employed. The Minister, in response to a Written Question to Mr Morley on 5th July 2001, confirmed that their numbers dropped from 600 in 1979 to 286 in 2001. Is the Minister confident that there are sufficient state vets in the field regularly visiting farms or does he share my concern that the number of farm visits has declined over recent years? What figures does he have to share with us tonight?
As I said, the proposed changes are welcome. I hope that they may encourage more people to come forward as veterinary nurses and that in giving qualified veterinary nurses a greater challenge we might reduce the numbers who are currently leaving the profession prematurely.
Lord Livsey of Talgarth: My Lords, on behalf of my party. I, too, welcome the amendment. It is good that veterinary nurses will be able to carry out minor operations under supervision.
The caring role of veterinary nurses is extremely important from an animal welfare point of view. The order introduces a dual role for veterinary nurses—of caring and of carrying out minor surgery—which is good for their development. As we have heard, their powers have been the subject of lobbying from the Royal College of Veterinary Surgeons. The proposal will free it up and provide important training for student nurses, many of whom go on to become veterinary surgeons. I have encouraged a number of young people to become vets. They need encouragement because it is a very exacting profession. A vet's life is a very busy one; it is a first-class career. Sadly, over the past 15 years or so morale in the veterinary profession has been rather low, particularly during recent times as a result of the foot and mouth epidemic. It was good to see the other evening that the profession is still in good heart; they are resilient people.
There is, as the noble Baroness said, a shortage of vets. The figure for 1980 was around 600 and is now 300. During the previous Parliament, I tabled a Question to the Secretary of State on the matter. An examination of the figures for each year from 1980 to 2000 shows that most of the reductions occurred during the 1980s. That was very short sighted.
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The order is a shot in the arm for the profession. We must compare it with the crash situation during the 1980s, when there were proposals to close the vet schools at Glasgow and Cambridge University. I strongly supported the campaign to keep both open. The late Robert Rhodes James, the MP for Cambridge, did sterling work to try to keep Cambridge vet school open, and we were successful in that campaign. I trust that we will never again have to conduct campaigns on such an obvious matter. Indeed, after foot and mouth 'we live in more enlightened times of necessity. People must be encouraged to join the profession.
There is a problem in large animal practices—it is becoming increasingly difficult to recruit vets. Young vets tend to prefer to enter domestic animal practices. It is important that efforts such as that which we are discussing this evening encourage people to go into large animal practices.
We must give the amendment a fair wind. I: have checked it out with the British Veterinary Association. I gather that there are minimal objections, if any, to the order because the association made most of the proposals. I trust that it will be a success.
Lord Whitty: My Lords, I am grateful to both Front Benches for supporting the principles of the order. It will give us flexibility and provide a greater range of activity for veterinary nurses, who are an important part of the total profession.
I turn to the questions that were raised. The noble Baroness asked about new paragraph 6(c) in Article 2 and the meaning of "directing". That part of the order relates to the veterinary nurse, in relation to which directing may be slightly more remote and would involve overall charge: it would be further applied in relation to student veterinary nurses, when the involvement has to be direct, continuous and personal. There is a distinction between those two parts of the order.
The noble Lord, Lord Livsey, rightly said that there have been changes in the numbers of vets. There are problems with veterinary education and problems resulting from the balance of the veterinary profession, which is weighted in favour of household pets rather than large animals and farm animals. The proposal will help the resources on the latter side. In terms of numbers, I believe that the noble Baroness added a zero to the initial number. I recognise the figures referred to by the noble Lord. I believe that she said 6,000—
Baroness Byford: No, my Lords, 600.
Lord Whitty: My Lords, I must have misheard the noble Baroness.
The figures are extraordinarily complicated. The quoted figure does not take account of the fact that some of those who were previously in the State Veterinary Service now work for the Meat Hygiene Service or another service. The bulk of the substantive cut occurred in management levels because of the rationalisation of regions during the 1980s and 1990s.

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In a recent Parliamentary Answer, I referred to field vets. During the past 10 years, the figures have remained roughly constant. The problem is not therefore with the number of field vets and therefore farm visits; the diversion during the past few years in particular in relation to particular diseases has reduced in some parts of the country the number of farm visits. There have been queries about the total numbers and whether the management structure is now appropriate. I shall let both Front Benches have the figures for field offices. That is the most appropriate approach in this context and most apposite to the order.
On Question, Motion agreed to.

Horticultural Development Council (Amendment) Order 2002
8.6 p.m.
Lord Whittyrose to move, That the draft order laid before the House on 10th May be approved.
The noble Lord said: My Lords, the Horticultural Development Council is an executive non-departmental public body that is funded by a statutory levy on growers of horticultural produce and which commissions near market research. The council was established by the Horticultural Development Council Order 1986, under the provisions of the Industrial Organisation and Development Act 1947. The main function of the council is to commission research and development on behalf of the horticulture industry. The order excludes apples, pears and hops, for which separate arrangements apply. Mushrooms were added to the order when it was amended in 1990.
The purpose of the amendment order is to make the necessary changes to take account of the Treasury's instructions relating to the Whole of Government Accounts—WGA—project. The move to WGA for government departments and NDPBs, such as the HDC, entails a standardisation of accounting years for those parts of government. Currently, the HDC accounting year runs parallel with its levy year; that is, from 1st October to 30th September. To facilitate consolidation of the accounts, WGA requires that departments and NDPBs have an accounting year ending within three months of 31st March. For the sake of clarity and administrative efficiency, the HDC wishes to maintain common accounting and levy years, with both years commencing 1st April. As the dates applying to levy years are stipulated in the Horticultural Development Council Order, the legislation must be amended.
In simple terms, the change will be effected by introducing a six-month levy period commencing on 1st October of this year and running until 31st March of next year. The next levy period will be from 1st April 2003 to 31st March 2004, and subsequent levy periods will be for 12 months commencing 1st April.
We also considered that it would be appropriate to make some minor changes at the same time. These are: an amendment to the description of "processing" in the interpretation section of the order to clarify the
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processing costs to be deducted from the value of a grower's sales when calculating liability for levy; clarification of the fact that the rates payable on a rateable packhouse are eligible for deduction from business turnover when calculating liability for levy; clarification of the fact that aquatic plants are also liable for levy—again, levy is already being collected from growers of those plants under an existing category, and this provision is for clarification; and clarification of the fact that all herbs, not just edible ones, are liable for levy.
Therefore, the most significant changes to be made by this order are in connection with the change in the levy year. However, in terms of the industry, that will have no adverse effects on levy payers and we shall not be asking them to pay anything extra in the way of levies. The overall amount of the levy will be no different; the only difference will be in the timing. As I explained, there will be a six-month and a 12-month levy.
In relation to the six-month levy period, levy payers will be assessed on sales as shown in their accounts for the calendar year 2001. The six-month period will mean that growers will pay only half the levy that would have been due under the old system. For the year commencing 1st April 2003, the levy will be calculated on sales in the calendar year 2002, and the same will apply in subsequent years. I hope that that clarifies the situation. I commend the order to the House.
Moved, That the draft order laid before the House on 10th May be approved [30th Report from the Joint Committee].—(Lord Whitty.)
Baroness Byford: My Lords, I thank the noble Lord for proposing this statutory instrument. There are some 400—or, rather, 43,000—full-time and part-time workers in the horticulture industry. I must get my figures right. I am sure that earlier I referred to 600 vets because I never dreamt that there were 6,000 of them. The horticulture industry is very important to us. It is an unsubsidised part of the business. During the season, it employs some 10,000 casual workers.
In accepting this draft order, we appreciate that basically it does two things. First, it moves to 1st April the date on which the accounting year starts. We do not have any difficulty with that. Secondly, it ties up the earlier legislation to include new items, such as herbs and aquatic plants.
I have two brief questions, one of which the Minister touched on. First, do I presume that Article 4(a), which alters the principal order, will allow the levy to be deducted from total turnover and that, therefore, it may result in a saving to growers? I am not absolutely clear on that point. Perhaps the Minister could say a word or two about that paragraph.
Secondly, Article 8 of the order refers to "saving". As the noble Lord will know, I am always very keen on saving. However, from the draft order I did not understand what the saving referred to. Is it a legislative saving or is it a saving to the producer? The three lines of Article 8 do not explain who will gain what in relation to the saving. I wonder why it is included in the draft order. The Minister has already suggested that payments that are due this year cannot

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be paid because the statutory instrument does not come into effect until April next year. I was a little floored by those two articles. I should be grateful if the Minister could advise me.
Finally, we on these Benches believe that good research is most important. It is vital for the future of the horticulture industry and obviously we want to see the industry have a successful future.
Lord Livsey of Talgarth: My Lords, I am grateful to the Minister for bringing forward the order. In particular, I believe that it is very important that the Horticultural Development Council is able to pursue its strategies in the interests of the horticulture industry. As the noble Baroness has just said, research and development are vital. So far as concerns investment in R&D, we certainly need to keep abreast of competition on the Continent and, indeed, much further afield. That point needs to be reviewed continuously.
There is considerable growth in the horticulture industry and there has been a vast increase in imports of fruit and vegetables. It is absolutely vital to develop our own industry and, at the same time, remain competitive. We all know that the supermarkets now trawl the world for horticultural produce. Indeed, consumers expect to have on the shelves of supermarkets fruits and vegetables which, until just a few years ago in the UK, we expected only seasonally. In terms of the environment, the importance of food miles is also very important. We need to ensure that we grow as much horticultural produce in this country as we can and that we market it as efficiently as possible.
The question of the levy and, in particular, the inclusion of herbs is very interesting. I wonder whether the Minister has received any objections to the fact that herbs will be liable for levy. Given the increasing growth of herbs and, indeed, the development of holistic medicine and things of that nature, I wonder whether any representations have been made in that respect. I believe that the situation is probably different in relation to aquatic plant growers. I would not have anticipated any objections in that respect because such growers are closely related to what goes on in garden centres and so on. I gather that watercress growers are supportive of the order.
So far as concerns the levy, I believe that the change to the accounting year is acceptable. However, I point out to the Minister that, judging the efficiency of some enterprises, the crop years do not necessarily coincide with the levy years. Speaking as someone who, during my career, has been involved in farm management and horticultural management accounting, it is important that the costs relating to the growing and the output of the crop arise in the same accounting year in order to gauge the efficiency of the enterprise. An interesting question arises in that respect, but I am sure that the farm management economists and horticulture economists have sorted that out.
The industrial-type processes involved in packing, canning, freezing and so on are now taken care of in Article 4(b) of the draft order. I believe that the
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clarification of the definition of "processing" and "processing costs" provides a useful description of what goes on.
The provisions contained in the draft order seem logical. Certainly, having been in conversation with the NFU horticulture department, there appear to be no significant objections to it. Therefore, I am very happy to welcome the order.
Lord Whitty: My Lords, I am grateful for the support from both Front Benches for the accounting change and for the other clarifications. In respect of the references to aquatic plants and herbs, the position is one of clarification rather than a change of classification. In fact, aquatic plants were levied under the old system but, for the sake of clarity, we believed that we should make clear that that was the case. Likewise, in relation to herbs, edible and medical and other non-edible herbs were levied. But, again, it is a question of clarification., and we have not received any representations from herb growers.
In relation to Article 4(a), to 'which the noble Baroness referred, again, a clarification is provided. Instead of referring to "such preparation", the order will relate to what takes place in the packhouse. It is intended that that should clarify what one sets against the total. One takes off the turnover in relation to the appropriate level on which the levy is paid. In other words, the amendment is not intended to bring about a change in either direction; it is intended to clarify the situation.
With regard to Article 8, which concerns saving, I cannot say that this is entirely clear to me either. However, the intention is to ensure that no interpretation can be made which suggests that any change to the levy arrangements takes place prior to the new levy arrangements coming into effect. In legal terms, that is known as "saving". It does not relate to any saving in the levy or the cost to the growers or HDC but simply protects the legal position. It is a legal measure.
On Question, Motion agreed to.
[The Sitting was suspended from 8.19 to 8.25 p.m.]

Education Bill
House again in Committee.
Baroness Seccombemoved Amendment No. 305:
After Clause 127, insert the following new clause—
"AMENDMENT TO EDUCATION (NO. 2) ACT 1986
In section 49 of the Education (No. 2) Act 1986 (c. 61) (appraisal of performance of teachers) in subsection (2)(a)(i) after "establishments" there is inserted—
"(ia) to have regard to any guidance provided by the local education authority concerning matters to be taken into consideration in the appraisal of head teachers;"."
The noble Baroness said: While the Bill contains many provisions designed to help successful schools improve still further, it is more reticent in its attempt to protect the most vulnerable children. My motivation for the amendments are the horrific events

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that occurred during the dreadful short life of Lauren Wright. Most noble Lords have heard details of what happened to that tragic child, but some have not. I hope that I will be forgiven if I mention them again.
Lauren went to live with her father and stepmother after their marriage. She was subjected to what can only be described as torture. Lauren attended her local school, where her stepmother was a dinner helper. It was a two-teacher school, so Lauren must have been seen at close quarters on an almost daily basis. Apparently, she often appeared with bruises but they were always explained away. During that time, Lauren lost four stone in weight and her hair fell out. When Lauren died 16 months later, she weighed only two stone. She was six years old.
Lauren's stepmother and father were imprisoned after being convicted—which was important but did nothing to ensure that cruelty is recognised and dealt with at a very early stage. Nothing will bring Lauren back but we owe it to her to do all in our power to eliminate such terrible acts of cruelty to children who often suffer in silence.
During the period when my right honourable friend Mrs Gillian Shephard was Secretary of State for Education, the document Protecting Children from Abuse: The Role of the Education Service was circulated. Often referred to as Circular 10/95, it lays out a framework that schools should have in place for dealing with cases of abuse. The document outlines a school's responsibility for working with the local social services department and, most importantly, for designating a member of staff as being responsible for co-ordinating child protection. Tragically, those guidelines are not always followed.
I seek to give that circular the force and teeth that it requires by putting it on the face of the Bill. Amid all the other provisions for improvement and innovation, surely the protection of children deserves crucial consideration and should be a priority.
As a result of my right honourable friend's involvement, she has taken a great interest in all abuse cases and has been particularly involved in the Lauren Wright case. She and her Norfolk parliamentary colleagues have also given evidence to the Victoria Climbié inquiry. Studying the Lauren Wright report leads to only one conclusion—that guidance is not enough and statutory powers must be included in the Bill.
I was heartened to hear the noble Lord, Lord McIntosh of Haringey, say in relation to Clause 12 that
"by placing this clause in the Bill we want to clarify the position and put the matter beyond doubt".—[Official Report, 7/5/2002; col. 1116.]
He went on to say that the existence of a specific statutory provision would reassure those who were more comfortable with written statutory powers. We would certainly be reassured if the amendment were made to the Bill so that the matter is plain, understandable and clear to everyone. I understand from the NSPCC that the circular is under review and out for consultation, but Amendment No. 361 covers any replacement circular, so that the point is dealt with.
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Amendment No. 305 would concentrate the mind of head teachers and governors and ensure that child protection figured large in the everyday life of their school. Failure to ensure that would be a disciplinary offence. I acknowledge that child protection is a difficult issue and that decisions must be made in complex circumstances. Legislation may be necessary in other areas, but, today, we are dealing with the Education Bill. Heads should be accountable. It is not acceptable for people in authority who have children in their care for most of the day to appear unaware of ghastly events going on under their nose and to do nothing about them.
At every stage, little Lauren Wright was failed by a system designed to protect her. As a result, nobody could be held answerable for the tragedy. We must learn lessons from that and implement changes to ensure that our children are safeguarded. The Government can do that by agreeing to the amendment. I beg to move.
8.30 p.m.
Baroness Walmsley: I support Amendments Nos. 305 and 361. It is vital that a school's child protection policies are not optional but statutory. Putting the new clause in the Bill will call attention to the issue and focus the mind of heads and governing bodies on their responsibilities, of which they are, I am sure, already mindful.
We cannot hold teachers solely responsible for spotting child abuse problems, but they are in an excellent position to notice things going wrong because they know the children in their care well. In view of that, it is vital that the structures and lines of responsibility are in place and are clear and that appropriate resources are made available. A designated teacher in each school should be given appropriate training to carry out the lead role effectively. However, it is also important that all teachers and trainee teachers have at least some basic training in child abuse issues. That will entail a partnership approach between the LEA and the local area child protection committee and a team approach in schools. The quality of the training can be monitored by Ofsted.
There are other types of training from which teachers and their pupils could benefit, covering issues such as child welfare and emotional development. There is little time for that during the normal PGCE course, so it should be a key part of every teacher's professional development entitlement.
To back up teachers trying hard to support children with difficult backgrounds, the NSPCC, with whom I have a non-pecuniary association, would like to see better liaison with social services departments and the provision of better information by the social services to teachers. That would help the teachers better to understand a child's behaviour and to deal with it appropriately, in the interests of the child and the rest of the class, where the problem can result in disruptive behaviour. There is much scope for the designated child protection teacher to develop a deeper professional role in the school, taking the lead on issues relating to children in need and in foster care.

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It is an important area, and the Bill gives us a great opportunity to do something positive in the light of our experience of the Lauren Wright and Victoria ClimbiéI hope that the Minister will give us a positive response to the amendment.
Baroness Ashton of Upholland: I listened carefully to the noble Baroness, Lady Seccombe, and, obviously, I am aware of the circumstances of the case of Lauren Wright, who was abused, tortured and killed by her stepmother, as noble Lords will know. In particular, I am aware of the failure of the agencies charged with protecting Lauren to prevent the tragedy.
Amendment No. 305 would go much further than simple child protection. It would require governing bodies to take into account guidance from local authorities on all aspects of head teacher appraisal. That would be on top of national guidance currently issued by the DfES and the advice given by accredited external advisers in person to governors carrying out the appraisal of a head teacher. Provisions are already in place for the LEA to be involved, if it has serious concerns about the performance of a head teacher.
I am greatly concerned that Lauren's school did not refer any concerns to the social services and did not follow my department's guidance, which all schools should have, on the procedures for protecting children from abuse. That is a vital part of all schools' responsibilities. Although their first priority is education, all schools must have appropriate arrangements in place to safeguard the welfare of their pupils. For that reason, I agree with the central aim of Amendment No. 361 that schools should have a duty to have regard to the department's guidance about arrangements for child protection. However, local education authorities also have a role to play in helping to draw up local procedures and training for staff in the area child protection committee forum and in monitoring and supporting schools in carrying out their responsibilities. We must reflect that in any new duty.
We accept the objective of the amendment. In addition to what I said about local education authorities, I can say that, on Report, we will propose a technically sound amendment to achieve that objective. I pay tribute to the noble Baroness, Lady Seccombe, and the right honourable lady Gillian Shephard for bringing the matter up. I shall do so again on Report, when we will propose our amendment. I hope that, on that basis, the noble Baroness will withdraw the amendment.
Baroness Seccombe: I am grateful to the Minister for her understanding and her obvious concern about the situation. I look forward to seeing the amendment: and would be grateful if she could let us see it as early as possible, so that we can make sure that it covers all the points that we wish to make. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 128 [Qualified teacher status]:
Baroness Ashton of Uphollandmoved Amendment No. 306:
Page 80, line 24, leave out subsection (3).
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The noble Baroness said: In moving the amendment, I shall speak to all the government amendments in the group. They are, essentially, technical amendments, but I shall try to cover them in some detail.
In these clauses, we seek to enable schools to adopt flexible models of staffing, clarify some legal grey areas and safeguard more clearly than before the central role of qualified teacher status in our system. The legislation to be replaced by the clauses served its purpose well when schools were, perhaps, simpler places, and the only adults who regularly worked in classrooms were teachers. However, other adults are now increasingly involved in schools in various ways, as teaching assistants and in other professional roles. In that context, there is a danger that the law as it stands will be unclear as to what is allowed and what is not. That carries two risks: first, that schools will be held back from introducing sensible, flexible arrangements; and secondly, that the concept of qualified teacher status could be undermined.
The Bill will avert both of those risks. At its heart is Clause 129, which enables us for the first time to say precisely what are the professional duties and activities for which QTS is required by law. II: also means that regulations can specify that a less qualified person may take on certain roles in the classroom only when working within a framework set by a person with QTS. Those are the central safeguards for standards. The clause also clarifies for the first time that a teaching assistant without QTS can, for example, take a small group of children out of the classroom to work on their literacy, within a framework set by the class teacher. Of course, that is sensible and already happens at many schools. The Bill will clarify that it is legal. Similarly, the clause will allow schools to bring in further education lecturers or real experts in highly specialised areas to lead lessons if that makes sense.
That brings me to Amendments Nos. 307, 309 and 310. It is essential that, in introducing the legislation, we do not disrupt the existing position of so-called unqualified teachers—in other words, overseas qualified teachers, instructors or teacher trainees on the graduate or registered teacher programme. None of those has QTS, but all are eligible under current regulations to teach in schools.
In the Bill as drafted, those people would not fit under Clause 129(1) because they do not have QTS, but they would not fit properly under Clause 129(2) either because they are currently undertaking the same work in schools as QTS teachers and in the same circumstances whereas Clause 129(2) was intended to deal with teaching assistants working under the supervision of a teacher with QTS. Therefore, Amendment No. 307 replaces the existing Clause 129(1) and (2) with a new more flexible subsection.
Amendment No. 310 is needed to ensure that that single regulation-making power is sufficiently broad and flexible to deal with all the cases that it will now cover: teachers with qualified teacher status, teaching assistants, and the unqualified teachers that I have described. Those regulations will ensure that all the current exceptions from the requirement to be qualified are preserved exactly as they are now.

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Amendments Nos. 309 and 311 are purely drafting changes consequential on those amendments. As two regulation-making powers are replaced with a single one, it is necessary to adjust the cross-references accordingly.
Amendment No. 306 follows directly from the other amendments. The existing Clause 128(3) was intended to preserve the existing employment position of overseas qualified teachers who are eligible to teach in this country, but only for a restricted period. Those people will now be covered more transparently by the amended Clause 129 which allows for time limits under the new subsection (5A). So Clause 128(3) can be deleted.
I believe that I should speak to the entire group of amendments, including those in the names of other noble Lords.
Baroness Sharp of Guildford: Would it not be more appropriate for us to speak to the amendments before the Minister gives answers?
Baroness Ashton of Upholland: The advice that I am receiving is that they are all in the one group so I should speak to the group. I shall follow the advice given.
Lord Lucas: As this is Committee stage there can be no particular problems about the speaking order. When I was on the Benches opposite I let the Opposition speak first. It is difficult to answer a case that has not been made.
Baroness Ashton of Upholland: I agree. I am in your Lordships' hands. This is a new situation for me.
The Deputy Chairman of Committees (Lord Lyell): I have to advise the Committee that if Amendment No. 307 is agreed to I shall not be able to call Amendment No. 308A. If Amendment No. 308, in the names of the noble Baronesses, Lady Sharp of Guildford and Lady Walmsley, is agreed to, I would not be able to call Amendments Nos. 308A, 309, 310. I hope that clarifies the position.
Baroness Sharp of Guildford: The easiest course is for me to speak to the amendments in this group standing in my name. It will be easier for the Minister to answer them. If the amendments fall, there will be no point in putting them forward.
Baroness Ashton of Upholland: The strong advice that I am receiving is that I should speak to the amendments so as not to de-group them, which would lead to preemption.
Baroness Blatch: In that case the noble Baroness will have to assume what my amendment is about and what the amendments in the name of the noble Baroness, Lady Sharp, are about. If the amendments are de-grouped we shall not have an opportunity to speak to them at all. The Government, with weight on their side, will vote in their amendments and our amendments will
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fall. We are not in a position to de-group because they are on the same subject. It appears to me that it would be more logical for us to put our cases and then for the Minister to respond to them.
Lord Davies of Oldham: The Minister has made her opening statement about her amendments. As this is Committee stage and we have an opportunity to intervene and to speak on more than one occasion, it may be appropriate for the noble Baroness, Lady Sharp, to speak. In doing so she can refer to her amendments, as the noble Baroness, Lady Blatch, can in due course, and then the Minister can reply.
8.45 p.m.
Baroness Sharp of Guildford: That is a good solution to the problem. Having explained her amendments, the Minister does, to a certain extent, pre-empt some of the amendments standing in my name. I have two amendments in this group, Amendments Nos. 308 and 3I0A. I shall speak first to Amendment No. 310A which is the more substantive of the two.
The amendment was tabled for the NUT in order to probe further precisely what is intended in Clause 129 and in the clause as amended by the Minister's amendment. As a result of the government amendment, Clause 129 would read,
"Regulations may provide that specified work not be carried out by a person in a school unless he—

(a) is a qualified teacher, or

(b) satisfies specified requirements".

In reality that is little different from a better and more precise expression of what is already in Clause 129(1) and (2). The original formulation and the new formulation proposed by the Government allow the Secretary of State to set out in secondary legislation from time to time the activities to be performed only by qualified teachers and/or those who satisfy "specified requirements". The NUT believes that the discretion allowed to the Secretary of State by those subsections, both in their original form and in the amended form, is far too wide. The primary legislation should acknowledge that there are core activities that should be carried out only by qualified teachers and the Secretary of State should be bound by primary legislation to ensure the protection of those core activities.
Government Amendment No. 310 describes the kind of requirements that a person who is not a qualified teacher must satisfy in order to carry out specified work. It replaces the original Clause 129(5), which gives no indication of what requirements may be applied and fills the gap left by the removal of the original Clause 128(3) which, as the NUT has previously pointed out, was far too widely drawn to be acceptable.
The change meets the NUT's objections, but the rest of Amendment No. 310 remains problematic. The alternative amendment suggested by the NUT, which is the one we have tabled, further narrows the scope of the regulations to be authorised by Clause 129 in an effort to ensure that teacher core activities, if they may be carried out by persons who are not currently qualified teachers, are then undertaken only by persons who are on a route to qualified teacher status.

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The department's claim is that the amendment is proposed to enable overseas teachers who have teaching qualifications, but who are not recognised as qualified teachers in England, and unqualified teachers to teach. They claim that the purpose of the regulations is to regularise the position of those two categories of unqualified teachers. If that is the sole purpose of what the Government propose, the further amendment suggested by the NUT should be accepted. It is sufficient to address the issue.
The Government's amendment has much wider implications for the remodelling agenda set out by the Secretary of State in her speech "Professionalism and Trust" and for the workload review that has now reached an important stage with the publication of the STRB report on teacher workload. The schools' workforce remodelling working party was set up by the Government to act as a single channel through which views of teachers' organisations, employers and their national agencies could be channelled on the future role of staff in schools. It was agreed by the DfES that everything would come through the working party and be considered by the representatives on the working party.
The Government's amendments under Clause 129 have not been put to the remodelling working party and their implications have not been considered. So the Government have not met their word on that.
The DfES has made great play of its determination to work in partnership with the teaching and support unions yet its agenda appears here to have veered away from that. By introducing amendments which appear to blur the role of the teaching assistants and teachers, the Government are in very real danger of undermining the expectations of all the unions and teacher associations on the remodelling working party. The amendments fly in the face of the views of both teacher and support staff unions and are also underhand in that there has been no discussion of them with the remodelling working party.
In her speech to the Social Market Foundation in November 2001, the Secretary of State set out four specific areas where she envisaged the key role of support staff: supervising classes that are undertaking work set by a teacher or working with small groups of pupils on reading practice; supervising lunchtime activities; invigilating tests; providing pastoral and other individual support to pupils covering for teacher absence.
All the evidence is that teachers appreciate the work of teaching assistants. That came through very clearly in the recent Ofsted report on teaching assistants in primary schools. In addition, the NUT has commissioned an in-depth study of teachers' views on the work of teaching assistants. This study, which was analysed by Warwick University, concluded that most teachers have a highly positive relationship with their teaching assistants. However, it raised cautions about the extension of teaching assistant recruitment to make up for shortfalls in teacher recruitment.
Importantly, the very large survey contained the views of respondents who had been teaching assistants before they became qualified teachers. Some of their
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comments are interesting. They say that teaching assistants are not lesser teachers. They have a very distinct and very different and valuable role to play. The role is supportive, positive and encouraging, but they are utterly different jobs.
What comes over from this survey is the enormous appreciation which teachers have for the work of teaching assistants in supporting their role as qualified teachers. However, teachers felt that they are different jobs and that teaching assistants should not be regarded as substitute teachers.
Finally, it is worth noting from the NUT survey and also from the Ofsted report that teaching assistants can greatly benefit learning and school standards. But what they do does not significantly reduce teacher workload. They change the nature of the work that teachers experience. There are very strong arguments for regularising the conditions, training and pay of support staff, including teaching assistants. Their pay and conditions are sometimes scandalous. Highly effective and trained support staff have no holiday pay and are often paid only on an hourly basis and at very low rates.
Blurring the roles of teachers and teaching assistants should not be the Government's main aim at the moment. Making sure that an excessive workload is removed from the shoulders of teachers and the pay, conditions and training of support staff are improved should be a top priority.
That is the case for Amendment No. 310A as distinct from Amendment No. 310 and the government amendments. I should like briefly to speak to Amendment No. 308, which is put forward by the Local Government Association. Clause 129 gives the Secretary of State additional power to make regulations and sets out what can be carried out by support staff. I believe I am right in saying that earlier today the Minister said that on this occasion they had regularised the situation and that in future it was clear that the role of support staff would be set, as it has been, by local government—that pay and conditions for support staff is a local government responsibility and that role is being retained for local government. However, teachers' pay and conditions are to be set at national level. Perhaps the Minister would be good enough to reiterate that position because that is the essence of Amendment No. 308. I beg to move.
Baroness Blatch: I rise to speak to my amendment in this group. The whole point of tabling my amendment is to try to elicit some honesty in policy and much greater clarification. We seek to remove regulations which provide a specification for work carried out in the classroom by a person not qualified to be a teacher.
What is the distinction between an existing classroom assistant and an assistant described under this part of the Bill? For example, could it be that under Clause 129 a teaching assistant could be employed alongside an assistant who works within distinct and different parameters? What is it that under this Bill a teaching assistant under this Bill can do that cannot be carried out by an assistant under the present statute?

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The noble Baroness has already spoken to her amendments and has said absolutely nothing and described nothing that cannot be done by an existing teaching assistant. Teaching assistants can work with a single child and do, in the phraseology of the Minister in answer to me, "work of a teaching nature". That can be undertaken by a teaching assistant at this moment under the present regulations working with a single child, a group of children, taking a group of them outside the classroom and working outside.
I am going to press the Minister very hard to tell us today what it is that has elicited these clauses of the Bill. If the difference is that under the Bill an assistant will work within a framework set by a qualified teacher, then what in the framework will extend the use of a teaching assistant? At present teaching assistants work to qualified teachers. They perform tasks set by a qualified teacher and work under their supervision. Sometimes that is a formal process and sometimes it is more informal.
The reply to my first question as to what was the distinction was brief. It was that a classroom assistant, as envisaged under Clause 129 of the Education Bill, will be required to work under a framework set by a qualified teacher when work of a teaching nature is undertaken. In comparison with present arrangements that will add a clear assurance that adequate supervision is in place. Adequate supervision is in place now and therefore that cannot be the distinction that the noble Baroness is talking about.
I asked a further question as a result of the first answer I received. In a slightly fuller reply the noble Baroness said that Clause 129 provides for regulation where teaching assistants and others such as further education teachers who are not qualified as school teachers carry out specified work which could be described as work of a teaching nature. The principal teaching duties will be outlined in the regulations following consultation.
The Government must have in mind what they intend to put in that consultation paper. The answer continued by saying that regulations will also ensure that teaching assistants always operate under the supervision of a qualified teacher—that happens now—where supervision may include a qualified teacher being present in the classroom. That is the first hint that we are talking about assistants working in the classroom without a qualified teacher being present.
Any policy developments in relation to teaching assistants taking a full class on their own would first need to be the subject of public consultation. So it is the Government's intention to consult on the basis of a teaching assistant taking a class on their own. The reply continued by saying that the requirement that they operate under a qualified teacher's supervision would remain in place. But where would that teacher be? The teacher could be out of the school altogether.
Work of a teaching nature can already be carried out. Work with small groups of children or with a single child, or taking children out of the classroom and working to a task set by a qualified teacher do not require legislation. Whether one is for or against the
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principle of using assistants in the classroom under the new guise, it is important that if the Government intend them to take whole classes without qualified teachers being present, they should say so.
The only guide we have had to this policy is the policy statement. That has been helpful in giving some insight into the Government's thinking. Paragraph 2.1 of the policy statement states:
"It re-enacts with modifications provisions relating to initial teacher training in the repealed section 218 of the Education Reform Act 1988".
I wish to know what modifications they are. Paragraph 2.2 states with reference to Clause 128:
"This is not a new power and there is no change to the current policy".
Therefore, if it is not a new power and there is no change to current policy, why is it in the Bill?
Paragraph 2.3 provides:
"Although there are no plans to amend the regulations, new requirements made under the regulations are due to come in force shortly".
What are they? Where are they codified? And where can I read about them?
Paragraph 3.2 states:
"Regulations made under clause 131 would require all schools to have a head teacher with qualified teacher status".
But my understanding is that the law will require all head teachers not simply to have qualified teacher status, but to have a head teacher qualification. The Minister has already referred to that coming into effect. The paragraph goes on to state that:
"Other staff in schools would work within this framework. Clause 129(1) enables the Secretary of State to provide by regulations that specified work may be carried out in a school only by a qualified teacher".
Paragraph 3.4 reads:
"The specified work would include aspects of teachers' professional duties in respect of which there is no statutory requirement for qualified teacher status".
What does that mean? Can I have an explanation of it? The final sentence in paragraph 3.4 provides:
"Unqualified staff would also be able to assist qualified teachers in carrying out their professional duties, but the appropriate qualified teachers would take primary responsibility".
They can do that now.
Paragraph 3.6 states:
"The key condition to be satisfied before unqualified staff may carry out certain professional duties would be the establishment of a management framework within which unqualified staff must work".
Does that apply to assistants under Clause 129? What statute will the present teaching assistants come under? Will they carry on as before? What are "certain professional duties"? The final sentence in paragraph 3.6 reads:
"To take another example, the regulations will allow suitably trained classroom assistants to supervise pupils and to deliver scripted lessons, or to take small groups of pupils for reading practice, within a framework set by the classroom teachers".
My goodness, that is a real revelation. They already take children for reading practice. In fact, not only do teaching assistants employed by the school do that, but parents come in to do that in the classroom. I am totally baffled by that part of the Bill.

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Paragraph 4.4 provides:
"Regulations under clause 130 will depend on those made under clause 129. Their timing will be considered in consultation with the General Teaching Council for England".
Again, can I have an explanation of what paragraph 4.4 means?
Paragraph 5.1 reads:
"The main effect of this clause is to provide regulation-making powers that will enable the Secretary of State to make it compulsory, for those coming new to headship, to hold a professional qualification".
That is already on the statute book. We are told that that will come into effect shortly. It goes on in the same paragraph to state:
"There will he a wide consultation on the proposals and underpinning regulations, which is proposed for spring 2002".
Unless I have my calendar wrong, spring 2002 has been and gone and we are now in summer 2002. It continues:
"It is not expected that any regulations will be laid before the autumn".
We are on our way to the autumn now, so it would be helpful to know whether that was just a typing glitch. The last sentence provides:
"The detail of the attached illustrative regulations could well change after consultation".
I have no detailed attached illustrative regulations. It would be helpful if I could have a copy of them.
Paragraph 5.2 states:
"Clause 131 also provides for the regulations to stipulate that a person will serve as a headteacher if they have qualified teacher status. This is consistent with previous and current policy".
Can I ask for a final definition of the time by which that will be achieved?
Paragraph 6.1 reads:
"Clause 132 re-enacts from Section 218 of the Education Reform Act the power to make regulations requiring teachers in further education to have qualifications".
For what reason is it being re-enacted? Is it either because there is a modification to it or is it simply a re-enactment for the sake of it? It would be helpful to know what that means.
Paragraph 8.1 states:
"Clause 134 re-enacts existing powers from Section 218, enabling regulations to be made to ensure that courses of initial teacher training for future education and for newly appointed FE principals are approved by the Secretary of State".
Why re-enact if the powers already exist in law? I have been asking that question all day. All it does is to repeat existing law unless there is a modification that we are missing. Not only should it have been in this policy note, but it would certainly be helpful to know what the distinction is.
Paragraph 9.1 almost defies belief. With regard to Clause 140, it provides:
"This clause does not introduce a new power, nor does it change the current policy".
So why is it there?
Paragraph 9.3 states:
"Paragraphs (1)(c) and (2) in Clause 140 provide for the Teacher Training Agency to continue to accredit teacher training courses and allocate the number of teacher training places to Higher Education Institutions".
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It continues:
"This clause also provides for the General Teaching Council to take over the Secretary of State's duty to approve QTS when this legislation comes into force".
Again, why if they already have this power does it need to be repeated?
My final comment on the policy paper relates to paragraph 9.4. It provides:
"Clause 140 paragraph 3 provides the Secretary of State with the power to direct the TTA to achieve particular targets".
How will that be done? It is only fair that all those teacher representatives—they have been referred to by the noble Baroness, Lady Sharp—the NUT and other teaching bodies, are told whether they are to be substitute teachers. If they are, then come clean and say so. If they are not, then please tell us what they will be able to do that a classroom assistant cannot do at the moment? This is an important group of amendments. It is important that we get some answers to our questions.
Lord Lucas: That is the kind of speech that a Minister, and the Box, longs to receive at five past nine of an evening. My questions are rather more general. I very much like the tenor of what the noble Baroness, Lady Ashton, was saying. It is a good idea to make these regulations more flexible and to look for a way in which we can continue to make teaching an easier profession to enter.
It is still difficult. A friend of mine who is a senior civil servant has recently moved to a job in a secondary school—he is about my age. He could not stomach the difficulties of getting involved with the state system but was welcomed with open arms by the independent sector. It is still difficult for people with much experience and quality to enter teaching and, as it were, learn the bits that they do not know on the job. It seems to be assumed that they start as ignoramuses and must be treated as if they were fresh out of university, rather than being given real credit for their long experience.
Perhaps the situation has changed, but until a few months ago we had the idiocy of drama teachers being required to have mathematics GCSE. Some people just cannot learn maths. Maths is of no use whatsoever in teaching drama. Why is that hurdle there? I know of at least one good drama teacher who has had to stay out of school, as it were—I know that she would like to be a schoolteacher—because she has no hope of passing maths GCSE.
A common experience in schools is of good teachers retiring at 60. What is going on? If we look around this House, people just begin their working lives when they are 60 and go on until they are close to 80. Why are we allowing all that good talent to waste away? What is it about the structure of teaching qualifications and remuneration that allows that to happen?

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I hope that those are the sort of questions that flexibility will allow us to address, because we could make a great difference to the quality of our teaching profession if we were more imaginative in who we allowed to enter it.
Baroness Ashton of Upholland: I shall start by referring to Amendment No. 310A, tabled by the noble Baroness, Lady Sharp. What she heard was correct: teaching assistants' pay and conditions will be sorted out locally, as now. I hope that that answer is helpful.
To dwell on that amendment for a moment, the small but significant changes that it proposes to the scope and effect of Clause 129 would be unduly restrictive. The use of the words,
"core activities of a teacher",
is unhelpful. The term "specified work" is preferable, as it encompasses professional duties and responsibilities as well as activities and the circumstances in which they are carried out.
As I said, one essential purpose of Clause 129 is to provide a safeguard by allowing precise specifications of work, including by reference to circumstances. We intend that specified work to cover the planning and preparation of courses and lessons and the delivery of lessons, teaching, assessing, recording and reporting on the development, progress and performance of pupils, marking pupils' school work and feedback to pupils and parents on pupil progress and attainment. Of course, the details will be finalised in consultation.
So, for instance, regulations could allow certain teaching tasks and duties to be carried out by assistants only if they are working in a framework set by a qualified teacher. The amendments would prevent that, first, by making it a matter of dispute whether the task was a core activity of a teacher and, secondly, by making it impossible to identify specified work by reference to the circumstances in which it was carried out.
The amendment would reduce flexibility and make it harder to ensure that necessary safeguards were in place. It also limits the scope and effect of the clause in another way. New subsection (2)(b) would prevent us from maintaining the current position of overseas-trained teachers and instructors who are already working in schools. People in those groups may not be working towards QTS but for a long time have been carrying out a valuable role in schools. It would be a retrograde step to prevent them from continuing to do so.
I turn to the amendment tabled by the noble Baroness, Lady Blatch. She asked why we were reenacting. We are doing so for several reasons. We have made significant changes in repealing Section 2(1)(a) of the Education Reform Act 1988. That has tidied up existing legislation, repealed a confusing clause, deleted unnecessary provisions and, we believe, modernised legislation. But in doing all that,
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important provisions must be retained. Those are the re-enactments. I understand that that is perfectly normal legislative procedure and practice.
The noble Baroness asked me a whole range of questions about the policy statement. I am keen to ensure that I give her as many of the answers as possible. I would just mention to the Committee that the policy statements have been available for some time. Had the noble Baroness written to me, I should have been able to give her much fuller answers. I could then have ensured that the Committee received the quality of response that it would desire. So I begin by saying that I shall do my best and will of course pick up any unanswered questions when I read back to ensure that I have covered them.
First, I refer to something that the noble Baroness, Lady Sharp, said about the remodelling working party. Of course it will be invited to consider the practical and professional issues that will underpin the regulations. That will be an important part of it.
We are not creating a new category of assistants. There are two categories: those with QTS and those without. All those without QTS do specified work and will need to be under the supervision of someone with QTS. The legal position of teaching assistants is not as clear as suggested by the noble Baroness. It is not that I could not find examples of what is happening in schools to fit with all the examples that we have given in our policy statement, but in talking to schools it is clear that it is an area about which schools are unsure.
The Government are criticised, on the one hand, for perhaps putting too much into legislation or regulations to clarify matters and, on the other, for not being clear enough and for seeking to undermine the position of teachers by having teaching assistants. In the process of thinking about the school workforce, my right honourable friend the Secretary of State said that one of the great things about our schools is that we have professional teachers who do a professional job. Some of the adults who work alongside them become teachers later, as the Warwick University research shows, to which the noble Baroness, Lady Sharp, referred, which is fantastic. They work alongside teachers and provide the right kind of support.
We are seeking to do two things. First, we want to recognise those people who play a vital and valuable role in the education of our children. Secondly, we want to ensure that we give schools and head teachers the flexibility that they need, while retaining our commitment to standards by making it absolutely clear what qualified teachers are doing and what assistants can do to support them. Although it may be thought unwise to consider within the range of propositions the possibility of a teaching assistant being in front of the class, there are circumstances when we might wish that to happen. We always seek to consult teachers and teaching assistants. Flexibility is important for headteachers to maintain standards.
The purpose behind these clauses is to enable us to use other adults whether they are teachers from further education, people who come in as teaching assistants or experts with a particular knowledge such as

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information technology. We want to use them wisely and well and to ensure that qualified teachers are in control and setting the framework—the way in which teaching assistants and other adults operate.
I hope that I have answered the questions on the policy statement that the noble Baroness was looking for. As the noble Baroness, Lady Blatch, said, we want to have national professional qualifications for headships. That is really important as we want to ensure that heads are given the professional qualifications and status to develop. I shall supply the illustrations that the noble Baroness seeks. It is important that we are linking up with the General Teaching Council and its role within that policy.
I hope that that is enough for the noble Baroness. Perhaps she can come back with other questions. Of course I shall write to her if I have been unable to answer any of her questions.
9.15 p.m.
Baroness Blatch: I am grateful for the promise of a letter. I apologise for not writing in detail about this clause, hut we do not get the back-up that the Minister has in her office. The whole point is to air our concerns publicly so that people outside know that we are asking the Government for clarification. Letters between us in private do not do that.
With regard to Clause 131, the letter refers to all schools having a head teacher with qualified teacher status. But another part of the legislation says that they must have not only qualified teacher status but a head teacher qualification. Can the Minister clarify that issue?
Baroness Ashton of Upholland: The issue is resolved by the national professional qualifications for headship, which will be compulsory for all those coming new to headship. I agree that the issue is not as clear as I should like and I shall write to the noble Baroness.
I recognise that the noble Baroness does not have the hack-up, but my point was that I would not wish her to think that I had given her an unsatisfactory answer. I shall be happy to put these matters in writing in the Library and I am sure that the noble Baroness will refer to them in our deliberations at a later stage.
On Question, amendment agreed to.
Clause 128, as amended, agreed to.
Clause 129 [Requirement to be qualified]:
Baroness Ashton of Uphollandmoved Amendment No. 307:
Page 80, line 39, leave out from second "may" to end of line 42 and insert "not be carried out by a person in a school unless he—

(a) is a qualified teacher, or

(b) satisfies specified requirements."

On Question, amendment agreed to.
[Amendments Nos. 308 to 308A not moved.]
Baroness Ashton of Uphollandmoved Amendments Nos. 309 and 310:
Page 81, line 1, leave out "subsection (1) or (2)" and insert "this section"
Page 81, line 7, leave out subsection (5) and insert—
"(5) A requirement of regulations under this section may, in particular, relate to—

(a) the possession of a specified qualification or experience of a specified kind;

(b) participation in or completion of a specified programme or course of training;

(c) compliance with a specified condition;

(d) an exercise of discretion by the Secretary of State, the National Assembly for Wales, another specified person or another person of a specified description.

(5A) Regulations may limit the period of time during which work may be carried out by a person in reliance on subsection (1)(b)."
On Question, amendments agreed to.
[Amendment No. 310A not moved.]
Clause 129, as amended, agreed to.
Clause 130 [Requirement to be registered]:
Baroness Ashton of Uphollandmoved Amendment No. 311:
Page 81, line 19, leave out "129(2)" and insert "129(1)(b)"
On Question, amendment agreed to.
Clause 130, as amended, agreed to.
Clause 131 agreed to.
Clause 132 [Provision of education]:
Baroness Sharp of Guildfordmoved Amendment No. 132:
Page 82, line 13, at end insert—
"() Regulations made under subsection (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;

(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

(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: The amendment relates to Clause 132 which deals with the qualifications for teachers in further education. This is a probing amendment designed to establish the Government's intentions in regard, first, to the utilisation of the power to make regulations, which spell out the

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specifications mentioned in paragraph (a) of the current clause; and, secondly, the qualifications to be recognised.
Many teachers in further education, both full-time and part-time, are recruited directly from employment in relevant manufacturing, service and other areas. Some of them have teaching qualifications, but others are without qualifications. Some of those teachers will have acquired a first level teaching or training qualification such as the City and Guilds 730 Further Education Teachers Certificate. At present, anyone moving into teaching without a qualification is often advised to take that certificate as a first step towards a teaching qualification.
In November 2000, the noble Baroness, Lady Blackstone, announced the Government's decision to introduce a requirement for training for further education staff. Recognising that it would not be feasible to introduce such a prior qualification requirement for all employees, the Government decided that individuals recruited to teach would be required to hold, or to work towards and achieve within a specified time, a recognised teaching qualification appropriate to their role.
Unqualified full-time and fractional teachers were to be required to gain a university Certificate of Education, or equivalent, within two to four years—two years for full-timers and longer for those on fractional contracts. Unqualified part-time teachers not on fractional contracts were to be required to achieve the City and Guilds certificate. All courses leading to a further education teaching qualification were to be based on what were then the Further Education National Training Organisation's (FENTO) standards, which will now be moved into the sector requirement.
As currently drafted, paragraph (a) of Clause 132 would appear to allow no exemptions from a requirement that teachers possess a specified qualification. Similarly, it is not clear that it allows the specification of different qualifications for different groups of staff. Although paragraph (c) appears to allow regulations containing different requirements, it is by no means clear why paragraph (a) is necessary if its provisions can be modified by regulations made under paragraph (c).
If paragraph (a) were to be implemented without modification, recruitment into further education of individuals with industrial, commercial or professional experience would become impossible in many instances, as few already employed in those areas would be able to undertake a part-time course leading to a teaching qualification while remaining in full-time employment. Even a Certificate of Education (FE) course might, typically, involve one day a week of study over two years or the equivalent, and there would be no incentive for a current employer to permit release; nor is it likely that many individuals would be willing to leave full-time employment to pursue a full-time course in order to become qualified. The flexibility to acquire qualifications in service is in consequence vital to maintaining the recruitment of
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the skills, knowledge and experience required to deliver the relevant high-quality learning in many technical and vocational areas.
Equally, paragraph (a) does not differentiate between full-time and part-time staff. For many colleges, part-time staff play a crucial role in providing skills in specialist areas where it would be uneconomic to employ a full-time teacher. For many individuals teaching is undertaken as an additional source of income or to widen experience and skills without necessarily any intention of making a career of teaching. Insistence on a full teaching qualification for such individuals would make it impossible to recruit in many of the areas of most importance to employers. As the Government previously recognised, a lower qualification, such as the City and Guilds, is in many respects more appropriate and an acceptable requirement for such staff.
In consequence the flexibility both to provide teacher training in service and different teaching qualifications for different groups of staff is vital if the range and variety of college provision is to be maintained. Clause 132 makes no reference to the agreed FENTO standards. It would permit the Secretary of State to recognise a range of qualifications which may bear no relationship to them. While the noble Baroness, Lady Blackstone, made clear the Government's intention to use the standards as the basis for defining qualifications, inclusion of a statutory commitment to take account of that work would provide reassurance that there would be no subsequent erosion of them.
Amendment No. 312 seeks an assurance that the policies previously announced, which took account of the sector's operational needs, can and will be reflected in the regulations made under the clause. The accompanying policy statement gives some indication that that is the case, but I would like reassurance from the Minister. I beg to move.
Lord Davies of Oldham: I am grateful to the noble Baroness for moving the amendment, which she identified as a probing amendment on the thinking behind this important clause. I am also grateful for the way in which she identified the main outlines of the Government's proposals to improve the qualifications of staff in further education.
The thinking behind the clause is to provide adequate time for people employed in further education to achieve the required standards. The implication is that the timescales are for people at work in further education. Therefore opportunities for meeting—as the noble Baroness rightly said—the great demands of both work and study, can be accommodated within that framework rather than people being required to hit the standard before leaving their previous employment, which might be too arduous.
The noble Baroness will recognise that we are eager to raise standards in further education. She mentioned that there was no direct reference to the Further Education National Training Organisation, but I

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assure her that the timetables set out in the regulations were established on its advice, as the standard-setting body for further education. For a full-time teacher, the qualification must be obtained within two years of a place becoming available, and for a part-time teacher, within four years. That is the burden on part-time staff, particularly those with other current employment.
The problem with the amendment is that it would relax those requirements further. I recognise the noble Baroness's concern with the burdens on staff entering the profession. However, she will also recognise that the concern about the time-scale within which staff become adequately qualified must be balanced with the rights of the students to expect that the staff who are delivering education to them are properly qualified. Staff should be qualified in their own subjects and in teaching practice. It is reasonable to expect that staff who do not have such qualifications should become qualified at the earliest opportunity. I suppose that in tabling this probing amendment the noble Baroness is asking whether we have the time-scale right and of course I shall insist that we have.
We provide support from the Standards Fund through the Learning and Skills Council to cover the costs of teacher training and the staff-cover costs for the institutions involved. New staff can therefore be released from teaching duties in order to gain the qualification. I note in feedback from some colleges that new teachers may be under exceptionally heavy pressure in the first year of teaching. All who have ever been involved can remember the experience and how demanding the first year was. The dual demands of preparation for all classes from scratch, combined with the workload for the teaching qualification, can place a heavy burden on a new member of staff.
However, we believe that the remedy lies in the hands of the colleges. Good employment practice by employers would see reduced teaching hours for new further education staff, as for school teachers, so as to ease the burden of preparation in the critical first year of teaching. That is the kind of good management practice we would expect from any employment where managers are concerned to see that the staff perform ably and enhance their competencies. I confirm our intention that the existing regulations will continue in force, subject to minor modification for clarification purposes. At this stage, we do not plan significant changes to the time-scales.
I recognise and share the concerns of the noble Baroness, Lady Sharp, about the issue, but we want to improve the standards of teaching in further education where, as she will know, a high proportion of staff are unqualified in either their subject or in teaching practice. There is a major task to be undertaken. We cannot expect to produce dramatic changes overnight, but nor can we approach the situation in a tardy manner, resulting in students being taught by staff less qualified than we all expect and they have the right to demand. I hope that with that explanation I have reassured the noble Baroness.
Lord Lucas: Can the Minister assure me that if a college is helping a student through the burden of teaching and gaining the qualification, and is doing so by giving him a lesser teaching burden, it will be financially compensated for the reduced effectiveness of that teacher?
Lord Davies of Oldham: I can indeed reassure the noble Lord that we are providing resources. We recognise the costs on colleges which are employing newly arrived teachers who must teach fewer hours in order to prepare for the qualification. We are providing resources through the Standards Fund to meet exactly that need of the colleges.
Lord Lucas: It is my experience that many secondary schools, particularly as regards art, drama, French and other languages, have teachers with personal experience of such circumstances. I can think of schools whose teachers' work has hung in the Tate and who have entered as art teachers because they want to turn to teaching.
The principle in the clause of teachers being able to enter the profession and have time to gain a qualification is, in secondary schools with the broad curriculum we are debating, an appropriate way of going about things. Can the Minister assure me that the regulations we are able to make under the Bill will allow such a process to take place if it is considered appropriate?
Lord Davies of Oldham: The noble Lord will recognise that there are distinct differences between further education and secondary education. Further education, traditionally and throughout its existence, has made great use of staff, particularly part-time staff, with no formal teaching qualifications. Given the demands of students and the standards expected in the profession, and given our determined drive to see that standards improve, we have reached the stage where it is necessary for us to include this clause in the Bill to ensure that the opportunities are there.
So far as concerns schools, there are graduate and registered teaching programmes which are school based. Individuals receive a salary while they are training as teachers. We share the noble Lord's concerns about enticing into teaching all those who show an aptitude for it and a commitment to it but who may come, as the noble Lord rightly says, with mature experience of immense potential value to the class but lacking the formal qualifications. I entirely share the noble Lord's view, which he expressed in speaking to an earlier amendment, that we should recognise how much students value the contributions that can be made by those who have had wider experience than just the classroom in their previous occupation.
Lord Lucas: The Minister's words give hope to all those who will be thrown out of this House when the Government's plans come to fruition.
Lord Davies of Oldham: I do not know who is being thrown out, but anyone who is thrown out would certainly fit very well within the broad description that I gave of being an asset to any classroom.
Baroness Sharp of Guildford: The noble Lord perhaps thinks that we should be training future legislators.
I thank the Minister for his reply. I am reassured that the extended timetable that was originally conceived in the further education training organisation provisions is in position.
The clause as it stands is rather bleak. It will prohibit anyone who does not have the qualifications. It must be borne in mind that the salaries available within the further education sector these days are not desperately attractive to those coming in from other occupations; and there is often an extreme shortage, particularly of people with vocational qualifications who seek to extend their career into teaching on the qualificational and professional side. The burden for such staff, having, in addition, to complete the qualification in teaching, is fairly considerable.
Nevertheless, the proposals were worked out after a considerable period of consultation with the further education sector. I am glad to have the Minister's reassurance that those proposals still stand rather than an indication that further acceleration of the timetable is envisaged. Given that reassurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 132 agreed to.
Clauses 133 and 134 agreed to.
Clause 135 [Wales: provision of higher education]:
On Question, Whether Clause 135 shall stand part of the Bill?
Lord Roberts of Conwy: This clause provides that:
"The National Assembly for Wales may by regulations … prohibit the provision by an institution ‖ of a course of higher education without the approval of the National Assembly".
The provision referred to is clearly provision by further education colleges.
I raised this issue at Second Reading. The Government's declared policy is to increase access to higher education courses and to the degrees and diplomas that may flow from them. Further and higher education institutions in Wales have taken the Government at their word and have provided such courses by a commendable variety of means.
The University of Glamorgan, for example, is rightly proud of its record in this field. I have before me an article by Professor Sir Adrian Webb, the vice-chancellor of the university, about creating opportunities through initiatives in higher education. He refers to the compact programme and says,
"the compact programme is but one of many widening-access initiatives that the university is currently engaged in to achieve its goal of providing opportunities to all those who wish to participate in higher education. Other examples include providing
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higher education programmes in further education colleges across Wales, establishing outreach centres in the South Wales Valleys and involvement in the Community University of the Valleys".
I think that that is enough to give the Committee a flavour of the type of activity pursued not only by the University of Glamorgan but by the University of Wales and its colleges. Yet here in Clause 135, as I said, we have dark hints of prohibition and restrictions on the numbers of young people who may participate in higher education courses at further education institutions in Wales. It all seems very contrary to the Government's declared policy. The Wales Office briefing tells us that,
"This is a safeguard against unplanned development of HE provision in FE institutions in Wales".
I am not aware, and I have yet to meet anyone else who is aware, of such unplanned development. It is hard to believe that any of the institutions could be guilty of such anti-bureaucratic behaviour. What they perhaps are guilty of is excessive zeal in implementing government policy, and someone somewhere may be alarmed at their success. We certainly do wish to know about the clause and the reasoning behind it. I should particularly appreciate some facts.
Baroness Farrington of Ribbleton: I join the noble Lord, Lord Roberts of Conwy, in congratulating all those who are working on the issue of expanding opportunity. That is an extremely important point. This clause will enable the National Assembly for Wales to retain the power which it currently has under the Education Reform Act 1988 to make regulations relating to the provision of higher education by further education institutions. I think that that answers one of the basic premises underlying the fears of the noble Lord, Lord Roberts. Schedule 22 to the Bill provides for the whole of Section 218 of the 1988 Act to be repealed, and the effect of Clause 135 will simply be to re-enact the provisions of Section 218(9)(d) and (10) in relation to Wales. I think that provides the detail of the assurance which the noble Lord seeks.
The retention of this power is considered necessary by the National Assembly as a safeguard against the unplanned development—the term which the noble Lord, Lord Roberts, picked up on—of HE provision in FE institutions in Wales. The Assembly wishes such provision to be the product of joint planning between the National Council for Education and Training for Wales, the Higher Education Funding Council for Wales and the relevant institutions in response to assessments of learner needs in different parts of Wales.
The Assembly regards the regulation-making powers as a useful means to further encourage the councils to work more closely together to plan and provide the appropriate extent of higher education courses by FE institutions in Wales. I am sure that the noble Lord, Lord Roberts, will recognise that, because of the large amount of work under way, it is necessary to have the opportunity to plan together, to ensure that the courses required by some students are not duplicated while at the same time the needs of other students are missed. We require that overall attempt to plan and meet the needs of all potential students.

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The clause is an important part of the National Assembly's plans to facilitate greater coherence in the provision of post—16 education in Wales. I say to the noble Lord that it is intended to retain, not impose, this power in order that the excellent work that has been done can be built upon and to ensure that the needs of an even wider range of students are met. Therefore, I hope that the Committee will agree that it should stand part of the Bill.
9.45 p.m.
Lord Roberts of Conwy: I am grateful for the noble Baroness's remarks. She is always reassuring, perhaps deceptively so. The fact is that the clause mentions prohibition of the supply of courses. However, I am happy to accept the noble Baroness's reassurance that it does not really mean what it says and that the intentions behind the clause are good.
Baroness Farrington of Ribbleton: It does not mean any more than it said before.
Clause 135 agreed to.
Clause 136 agreed to.
Clause 137 [Health and fitness]:
Baroness Walmsleymoved Amendment No. 313:
Page 84, line 16, after "kind" insert "for a local education authority or a governing body of a school or a further education institution"
The noble Baroness said: In moving Amendment No. 313, I wish to speak also to Amendment No. 314. The purpose of these amendments is to ensure consistency in the Bill in relation to the fitness requirements of employees working for all employers in education. Currently, the wording of the Bill is inconsistent. Subsection (2) of Clause 137 allows for fitness requirements to be imposed on anyone employed at a school regardless of whether they are employed by the LEA or whoever else. Presumably, this includes staff under contract to an employment agency. However, the requirements in subsection (3), which refers to staff providing education at somewhere other than a school, and subsection (4), which refers to staff not providing education, extend only to those employed by LEAs or governing bodies. This seems to leave out staff recruited through employment agencies and businesses with no contractual relationship with the LEA or governing body. There seems no obvious reason for that inconsistency. I hope that the Minister will be kind enough either to commit to putting it right or to explain why it is necessary. I beg to move.
Lord Davies of Oldham: I rise to speak to government Amendments Nos. 315, 318 and 320 which are grouped with the two amendments to which the noble Baroness has just spoken. I shall, of course, address those amendments in due course.
However, I turn first to government Amendments Nos. 315 and 318. These are technical amendments to ensure that we have a consistent and accurate definition of education for these clauses. As the Committee will be aware, Clauses 137 and 138 are two of a number of clauses which replace and re—enact
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Section 218 of the Education Reform Act 1988. Clauses 137 and 138 apply to the provision of education in both further education institutions and schools. The amendments insert an extended definition of education into both Clauses 137 and 138 to incorporate the widest definition of education, (that used for further education), and to create maximum flexibility for the operation of the clauses. I hasten to add that that definition is also consistent with other Bill clauses. Therefore, I trust that the Committee will accept these technical improvements to the Bill.
Amendment No. 320 is a little bleaker as it seeks to correct an error in the Bill. Clause 140 is an overarching clause applicable only to the exercise of the Secretary of State's power in Clauses 128 to 136 to make provision by reference to specified qualifications, courses of education or training or specified programmes. The inclusion of Clause 137, which concerns the health and fitness of teachers, is a simple mistake. We apologise for that mistake and I hope that Members of the Committee agree that it should be corrected by Amendment No. 320.
I turn to Amendments Nos. 313 and 314, which were spoken to by the noble Baroness, Lady Walmsley. Clause 137 is a wide—ranging provision and covers teachers, agency teachers, home tutors and support staff among others. They will include persons employed under a contract of employment or for services with local education authorities, governing bodies of schools or further education institutions.
Clause 137 as drafted provides for the increasing flexibility of the teaching workforce and that provision will apply to those providing education—I stress that—whatever their employment circumstances. The problem with Amendments Nos. 313 and 314 is that they would extend Clause 137 to a potentially unlimited group of persons and the Secretary of State would be unable to control, monitor and enforce the provisions. The amendments would, for example, extend the health and fitness requirements to gardeners, bus drivers and builders, and the Secretary of State would have no ability to enforce the provisions. It could also be argued that extending the provisions in that way would be unduly onerous for those sections of the community. We are always told of the burdens laid on people pursuing their legitimate livelihoods through existing red tape. The danger of the amendments is that they would extend to people we should not wish to bring within the framework of the clause's provisions. The amendments would take Clause 137 outside the scope of the Bill and into territory that may be entirely unrelated to education or the education environment. That is the principal reason why we oppose the amendments.
As Clause 137 stands, the Secretary of State can effectively impose the health and fitness requirements and ensure compliance by LEAs, schools and FE institutions under the existing legislative framework. Clause 137 is aimed at ensuring that those persons who have responsibility for children are fit for that task. The issue of who should have access to children is dealt with elsewhere. I reassure the Committee that the current provisions provide adequate protection for

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children and young people being educated under the auspices of the LEA, schools or further education institutions.
I recognise and share the concerns that the noble Baroness raised in relation to the amendment. However, I hope that she agrees that we should limit Clause 137 to those categories of persons who are involved in the education of young people in order to have a clear line of control—and clear powers—for the Secretary of State to monitor the whole process. I hope, therefore, that the noble Baroness will withdraw the amendment.
Baroness Walmsley: I thank the Minister for that reply. If the consequences of the amendment would be as he described, that would perhaps be somewhat bizarre. I reserve the right to read Hansard, to study his remarks in detail and to decide what to do in the long term with these proposals. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 314 not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 315:
Page 84, line 24, at end insert—
""education" includes vocational, social, physical and recreational training,"
On Question, amendment agreed to.
Clause 137, as amended, agreed to.
Clause 138 [Prohibition from teaching, &c.]:
Baroness Ashton of Uphollandmoved Amendment No. 316:
Page 84, line 42, leave out paragraph (c) and insert—
"(c) providing education under a contract of employment or for services where the other party to the contract is a local education authority or a person exercising a function relating to the provision of education on behalf of a local education authority, and"
The noble Baroness said: The purpose of this group of amendments is to ensure that we have provided additional safeguards in our schools. Perhaps I may go through the amendments to explain what we are attempting to achieve with them.
Amendment No. 316 seeks to introduce a drafting change that clarifies the scope of the Secretary of State's powers as set out in Clause 138. It replaces the phrase "local authority contract" with an explanation of what is meant by that type of contract. The new words make it clear that the Secretary of State's power to bar applies to people who are employed to provide education by an organisation that exercises functions on behalf of a local education authority as well as people employed to provide education by the local education authority itself.
Amendment No. 317 simplifies and clarifies the definition of the type of work, in addition to providing education and managing an independent school, to which the Secretary of State's powers apply. The new definition makes it clear that her powers extend to any
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work, whether paid or voluntary, which is done for or on behalf of a local education authority or for a school or further education college and which involves regular contact with children.
Amendment No. 319 introduces a new clause that strengthens the arrangements for ensuring compliance with directions made under Clause 138. That clause gives the Secretary of State power to make directions that bar a person from providing education or doing any work that involves regular contact with children in the education service. It also gives her the power to put restrictions on such work that a person can undertake. As Clause 138 is drafted at present, LEAs, schools and further education institutions are required to ensure that they do not use the services of a person who is subject to a direction in a way that would contravene the terms of that direction. Consequently, local education authorities and those other establishments must check the new staff whom they take on to ensure that they are not barred.
However, not all staff are directly employed or appointed by local education authorities, schools or colleges. Teachers and other staff can be supplied in a variety of ways. Supply teachers may be employed by teacher employment agencies. Other staff may be employed by organisations that are contracted to provide services such as school meals. And, in some cases, staff may be supplied by voluntary organisations; for example, to assist pupils who have special needs.
We believe it is right that organisations that provide teachers and other staff have a responsibility to ensure that the people whom they propose to supply to local education authorities, schools and colleges are not barred from doing the work that they are being supplied to do. This new clause will ensure that by placing those organisations under a duty not to arrange for a person to undertake work if it would contravene the terms of a direction by the Secretary of State under Clause 138.
It will also enable the Secretary of State, or the National Assembly in relation to work in Wales, to take action to enforce the duty. For example, if the Secretary of State has reason to believe that an organisation is not making the checks that will enable it to determine whether the people whom it proposes to supply to work in schools are barred, she will be able to direct the organisation to undertake those checks. And, in the very unlikely event that an organisation did not heed a direction by the Secretary of State, she would be able to seek a mandatory order from the court requiring the organisation to comply.
I fully recognise that this is a "belt and braces" approach. But I believe that it is a worthwhile extra safeguard that will reduce even further the possibility that a person who has been barred might be able to obtain the kind of work that he or she has been barred from doing.
Amendment No. 329 is a technical amendment to Clause 164. Clause 138 prevents people from working in a school, including an independent school, or from

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taking part in the management of an independent school on grounds that make them unsuitable to work with children or relate to their misconduct or health.
Clause 164 provides for an independent school to be removed from the register if any person is working there in contravention of a direction under Clause 138. The amendment makes the description of persons to whom Clauses 138 and 164 apply consistent.
Amendment No. 330 is a consequence of Amendment No. 329 and avoids unnecessary repetition by removing words which Amendment No. 329 inserts earlier. Amendment No. 372 tidies up the new version of Section 15 of the Teaching and Higher Education Act 1998 which is put in place by the Bill. The amendment removes a definition of the term "child" that is redundant because that term is not used in this section.
Amendment No. 373 introduces a new section into the Teaching and Higher Education Act 1998 in order to strengthen the arrangements for reporting cases to the Secretary of State or the National Assembly for Wales and the general teaching councils for England and Wales in circumstances where it may be appropriate for the Secretary of State to consider taking action to bar or restrict a person's employment or for the General Teaching Council to consider taking action under its disciplinary procedures.
Section 15 of the Teaching and Higher Education Act 1998, as amended by the Bill, will place a duty on local education authorities, schools and further education colleges to make reports in appropriate circumstances, and gives the Secretary of State power to make regulations specifying to whom reports should be made in different circumstances. The amendment places a similar duty on organisations such as employment agencies and contractors that provide teachers and other staff to schools and colleges.
The effect is to ensure that such organisations—where they decide to terminate the arrangement whereby the teacher or worker with children is provided to a school or college, or decide that they may have terminated the arrangement had the teacher not ended it himself or they decide not to make new arrangements in respect of the teacher—are under a duty to make a report if the reason for that decision is one that would give the Secretary of State grounds for considering barring the person under Clause 138.
In most cases the report will be made under Section 15 by the LEA, school or college by the whom the person is employed. The amendment will ensure that reports will also be made by the body that arranged for the person to be employed by the LEA, school or college.
In some cases, the provision may result in separate organisations each having a duty to report. For example, if a school decides to cease to use the services of a supply teacher employed by an agency on grounds of misconduct and the agency also decides to cease to use that person's services, both the school and the agency will have a duty to report—the school under Section 15 and the agency under Section 15A. If an
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agency decides to remove a teacher from its books on grounds of misconduct at a time when the teacher was not working at a school, the duty would fall on the agency alone—but in all cases there will be a duty to report.
The new provision also gives power to enforce the duty to report. It provides for the Secretary of State or the National Assembly to direct a person to comply with their duty to make a report and if necessary, for those directions to be enforced by way of a mandatory order. Taken together, the amendments provide helpful additional safeguards and clarify the Bill. I beg to move.
10 p.m.
Baroness Blatch: I rise not to oppose the Minister because I believe that anyone working with young people should be fit for the purpose. Anything that can be done to ensure that is important. I will read carefully the Minister's complicated explanation. What are the Government doing about the log jam? There is an enormous backlog of applications for checks on potential recruits. I understand that valuable staff are being lost because it is taking so long to get a reply. If this part of the Bill is to work, something must be done quickly to deal with that backlog.
Lord Lucas: Am I correct in thinking that Clause 138(2)(f) would catch parents who volunteer to work at a school regularly by making them subject to checks? Current practice is that parents are asked to volunteer: "Who's available to go on this trip?". Presumably in future, all parent volunteers would have to be cleared in advance. If a parent who volunteered was barred, who will be entitled to know that information? Should it, as a matter of good practice, be spread among the staff or be restricted to the head teacher or an inner group? If so, what structure should be in place to make sure that happens?
Baroness Ashton of Upholland: I acknowledge the noble Baroness's point about checks and I am grateful for her support. My understanding is that the backlog is clearing quickly. I will write to the noble Baroness, and put a copy in the Library, if that is not the case. I understand that we have had some difficulties and that they are being resolved.
To whom in the school would this apply? We talked about the case of young Lauren not long ago: her stepmother worked at the school. We must enable schools to take the necessary precautions in respect of people coming into schools in whatever capacity. Schools must take care, even with people who work as volunteers, for reasons that will be obvious from our earlier discussion.
We would not expect the information to be well known among the staff, but the head teacher would need to be aware and would make judgments about who needed to know. If the person were not coming into the school, it might be argued that there would be

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no point in allowing the information to spread further. If I am wrong about that, I shall write to the noble Lord and clarify the position.
The noble Baroness, Lady Blatch, raised a point about the criminal records bureau. That matter has been described as a teething problem. We are working to resolve it and have put in place interim arrangements to check that List 99 allows employers to make provisional appointments. As I said to the noble Lord, Lord Lucas, we classify all people in the same category if they work regularly in a school.
Lord Lucas: So it would be a matter of general practice for a school to compile and maintain a list of parents who were allowed to participate in the teaching of children or to go on school trips rather than just allowing whomever was available to do it.
Baroness Ashton of Upholland: I did not say that. I said that if someone were regularly asked to come into the school and work, we would expect appropriate controls to be in place. That would apply as a matter of course to a volunteer from a voluntary organisation, to anyone coming in regularly under a contract and to people in paid employment. That covers all the categories that the noble Lord mentioned.
Lord Northbourne: Would not that give rise to a situation in which people's reputations could be destroyed without their having the opportunity to defend themselves?
Lord Lucas: My question was specifically about parents doing what parents have always done, particularly in primary schools—coming in to help the children with reading. I certainly did it with my kids when they were in primary school, and many other parents have done it. It puts people in direct, regular contact with young children. Are such people not caught by Clause 138(2)(f)? Would they have to be cleared in advance? If so, what procedures should the school have relating specifically to the parents of children at the school?
Baroness Ashton of Upholland: To the noble Lord, Lord Northbourne, I say that the process involves the criminal records bureau; it is not about maligning reputations.
We must be careful not to fall into the trap of acting on rumour or innuendo, while making sure that we protect children sufficiently. Those who work regularly in schools—whether they are parents, volunteers, staff or agency employees—would be subject to checking. It is not beyond the realms of possibility that an adult coming into a school would not be an appropriate and proper person to be with the children. The noble Baroness, Lady Seccombe, mentioned Lauren Wright's stepmother, who, in the
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process of abusing, torturing and murdering her stepchild, was also on school premises doing lunchtime supervision. We are trying to recognise that we must be extremely cautious and careful.
I shall try to pick up the point made by the noble Lord, Lord Lucas. Clearly, I have not satisfied him. I shall write to him. I say to the noble Lord, Lord Northbourne, that there is, of course, the possibility of appeal against barring to the care standards tribunal if people felt that barring had ruined their reputation.
Baroness Blatch: I shall read carefully what the Minister said. It is a complicated issue. My noble friend Lord Lucas raised the issue of data protection. If a school does a check and finds out some background information about a person whom it considers to be unfit to work with children, that person must know. A check has been carried out, and the person must be told that he or she is not allowed to work with children for the reasons exposed by the check. If that information is to imparted to other members of staff, however, there is an issue there.
I also foresee the issue of the human rights of a parent. A school may decide that it is not free to impart information to parents that someone is a fit and proper person. A person may have committed a crime a long time in the past or it may be the kind of crime that does not impact on a person's reputation and worthiness to work with children. However, does a parent have a right to know of any background information?
Another complication is that as the Bill is set out it concerns only those who regularly come into contact with children. What happens in relation to a person who does not work regularly with children? Someone may help on a week's trip away from the school and that may be the only time that such a person offers to help. He or she may be a really unsuitable person but would not be caught by this provision and no check would be undertaken. Paedophilic behaviour, for example, is very manipulative. They are the kind of people who may seek to go on a school camp with children, but they would be highly unsuitable people to work with children.
This is not an easy set of measures. I want to read what the Minister said. There are questions that need to be answered.
Baroness Ashton of Upholland: The noble Baroness raises important points of human rights and data protection. My understanding is that teachers receive a copy of all information that is provided to schools by the department. The Secretary of State will receive information. The purpose of this measure is to ensure that in circumstances where people have been barred there is an understanding across the education system of who they are so that our children are better protected. Also, we ensure that the provisions comply with human rights legislation. I shall write to the noble Baroness before Report stage. I hope that I can resolve those issues for her.
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendments Nos. 317 and 318:
Page 85, line 1, leave out paragraphs (e) and (f) and insert—
"() This section also applies to work of a kind which—

(a) brings a person regularly into contact with children, and

(b) is carried out at the request of or with the consent of a relevant employer (whether or not under a contract)."

Page 85, line 35, at end insert—
""education" includes vocational, social, physical and recreational training,"
On Question, amendments agreed to.
Clause 138, as amended, agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 319:
After Clause 138, insert the following new clause—
"DIRECTIONS UNDER SECTION 138: CONTRACTOR, AGENCY, &C.
(1) A person shall not arrange for an individual who is subject to a direction under section 138 to carry out work in contravention of the direction.
(2) If the Secretary of State thinks that a person is likely to fail to comply with the duty under this section in relation to work in England, the Secretary of State may direct the person to take or refrain from taking specified steps with a view to securing compliance with that duty.
(3) If the National Assembly for Wales thinks that a person is likely to fail to comply with the duty under this section in relation to work in Wales, the National Assembly may direct the person to take or refrain from taking specified steps with a view to securing compliance with that duty.
(4) A direction under subsection (2) shall be enforceable, on the application of the Secretary of State, by a mandatory order.
(5) A direction under subsection (3) shall be enforceable, on the application of the National Assembly, by a mandatory order."
On Question, amendment agreed to.
Clause 139 agreed to.
Clause 140 [Specification of qualification or course]:
Baroness Ashton of Uphollandmoved Amendment No. 320:
Page 36, line 33, leave out "137" and insert "136"
On Question, amendment agreed to.
Clause 140, as amended, agreed to.
Clauses 141 to 143 agreed to.
10.15 p.m.
Lord Lucasmoved Amendment No. 321:
After Clause 143, insert the following new clause—
"DISCLOSURE OF INFORMATION
After paragraph 1(3) of Schedule 2 to the Teaching and Higher Education Act 1998 (c. 30) (disciplinary powers of council) there is inserted—
"(3A) No person shall be charged with an offence under subparagraph (1) in respect of the disclosure of information or opinions to the Secretary of State, the Office for Standards in Education, a local education authority, an examination board or a local authority or any of their employees or agents.
(3B) It shall be a defence to any charge under sub-paragraph (1) to show that the action or inaction in question was in the public interest.""
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The noble Lord said: This matter arises from the first disciplinary case brought by the General Teaching Council. I shall not refer in any way to the circumstances or personalities in that case. I am concerned with the principle of the charges that were brought. Two of the four charges seemed to me to run directly against the principle that. I believed the Government established and that I would applaud: that those who bring wrongdoing or malpractice to the attention of the authorities or in certain circumstances to the attention of the general public should have protection. They are commonly called "whistle blowers". Both the charges brought against the gentleman in this case were of professional misconduct. The first is that he told Ofsted inspectors about something which had been going on in the school and, secondly, he told an examination board about something which was relevant to an examination which it had set.
I know nothing about the person involved. Even if he were the most undesirable, misbehaving and unworthy teacher in the world, telling Ofsted what went on in the school cannot under any circumstances be called professional misconduct. Telling an examination board of something which a teacher believes to be wrong in the way in which an examination was administered, cannot be professional misconduct. It may be all kinds of other things such as wrong-headed, pig-headed or misguided, but teachers have to be allowed to bring their case to the relevant authorities if they feel that that is what they must do. It is entirely wrong that charges of this nature should be brought. This new clause is intended to make sure that the General Teaching Council cannot charge a person with misconduct if what is concerned is bringing a matter to the notice of the proper authorities and that under any other circumstances of being charged with professional misconduct, they have the defence of public interest. I beg to move.
Baroness Blatch: I apologise for not having discussed this amendment with my noble friend. I simply wish to ask a question about it. I believe it is perfectly sensible to table this amendment and I support it.
But there is also the possibility of a vexatious case where an accusation or comment was made to Ofsted or to an examination board which was purely vexatious and could cause great distress to another member of staff. It seemed to me that there should be a test of what was in the public interest. If it was in the public interest, then my noble friend's amendment would apply. If it was not, and turned out to be vexatious, then that could also be dealt with.
Lord Davies of Oldham: I quite understand the concerns of the noble Lord, Lord Lucas, in seeking to amend the Bill and I appreciate the way in which he has presented his amendment. I seek to emphasise to him that I consider the contribution by the noble Baroness, Lady Blatch, absolutely right. We have to take into account the possibility of a vexatious action. Therefore, the issue is whether we have got the balance

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right in terms of the procedures which are followed as regards, on the one hand, as the noble Lord would identify quite accurately, the necessary protection of the whistle-blower who draws to the attention of a public body an activity which is unacceptable and wrong, and, on the other hand, the right of all in the public service not to be slandered because of a vexatious case brought against them which does not stand up against any test, but which is the subject of malice or malevolence.
We are seeking to establish here the question of balance. It is quite right that the careers and reputations of individuals should be protected when they expose wrong-doing or malpractice in the organisation in which they work. The noble Lord has expressed that in an eloquent fashion in his contribution. It was in the interests of protecting such individuals that we brought forward the Public Interest Disclosure Act 1998 which protects employees, including teachers, from detrimental treatment by their employer arising from specified disclosures made in good faith.
However, I am unhappy about an amendment which would constrain the jurisdiction of the General Teaching Council by preventing the employers of teachers bringing forward allegations of unacceptable professional conduct to the GTC where these are based on the disclosure of information and opinions. After all, it would be possible for a teacher to give information and to voice opinions which are not in the public interest but just designed vexatiously to damage the school community.
It is for the General Teaching Council to determine whether the disclosures amount to unacceptable professional conduct in the light of all the circumstances. It is also important to bear in mind that all allegations of unacceptable professional conduct are considered first by an investigating committee of the GTC which can decide whether there is a case to answer. It can throw out a case at this preliminary stage. If the committee decides that there is a case to answer, the matter goes before the Professional Conduct Committee of the GTC. It is this committee's duty to give full and proper consideration to all the available evidence. Where a teacher against whom allegations of unacceptable professional conduct have been made gives the defence that his or her actions were in the public interest, the GTC's disciplinary committee must take account of that defence in reaching its decision. It is not necessary to write into the law that such a defence is permitted.
I also remind noble Lords that a teacher aggrieved by a decision of the GTC's conduct committee has a right of appeal to the High Court. The court may use its discretion to overturn the GTC's decision or to order a re-hearing. Those protections are essential, given that the career, livelihood and reputation of individuals may be at stake. So I share the noble Lord's reasoning behind his amendment and the probing which it has given him the chance to identify. But I hope that he recognises that we must strike a balance between the rights of the whistle blower and the
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protection of institutions against vexatious allegations. It is the General Teaching Council's responsibility to have procedures that ensure that these issues can be identified and dealt with in the appropriate manner. I hope that on the basis of that reply the noble Lord feels able to withdraw his amendment.
Lord Lucas: I seek a little more comfort from the noble Lord. He talks about the whistle blower's Act. Can he assure me that that applies to a teacher in front of the GTC? I thought that it applied to a teacher only in relation to his employer—whoever that might be—and that as to GTC proceedings he was not protected under the Act.
If the GTC disciplinary committee reaches a conclusion and the teacher takes the matter to the High Court, is the defence of public interest a valid defence? Can a court consider that matter or is it prevented under the rules by which it is bound? In other words, if I as a teacher said, "Yes, I did these things, but it was in the public interest", can the court freely consider that matter or not?
Baroness Blatch: Before the Minister replies, can I make it absolutely clear that I believe that there should be a test to prove whether or not the issue is in the public interest, but that if the matter is vexatious it should be dealt with. If it is proven to be in the public interest that should be a defence. That is why I support my noble friend.
Lord Davies of Oldham: I understood the noble Baroness to have expressed exactly that viewpoint. That is the reason why I contrasted her position with that of the noble Lord as to the balance and how the procedures should work.
The noble Lord has asked a legal question of one of the minority non-lawyers in this House. So I should struggle in replying to him immediately. But I shall of course be happy to write to him on those points in good time for him, if necessary, to raise the issue again on Report.
Lord Lucas: I am most grateful to the noble Lord. If he receives any sudden information, I am happy that he should rise again, but on the assumption that he would prefer to write, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 12 [The General Teaching Councils for England and Wales]:
The Deputy Chairman of Committees (Viscount Simon): Before calling Amendment No. 322 in Schedule 12, I would advise the Committee that if it is agreed to, I cannot call Amendment No. 323 because of pre-emption.
Baroness Sharp of Guildfordmoved Amendment No. 322:
Page 164, leave out lines 40 and 41 and insert—
"(1) The Council may undertake activities designed to promote the professional status of teaching."
The noble Baroness said: In moving Amendment No. 322, I shall speak also to Amendment No. 323. The amendments are more or less the same. They are aimed at ensuring that the General Teaching Council fulfils its role for teachers in holding the profession of teachers rather than just a GTC of teachers. They are aimed at promoting and ensuring the positive working relationship of the GTC with the teacher organisations.
From these Benches, we have argued for a long time that such a council was necessary in order to promote teaching as a profession, just as the General Medical Council has been the professional organisation for doctors. It ensures consistency of professional qualifications; it can help to ensure that professional development becomes an entitlement for teachers; and it can help to secure effective support for newly qualified teachers.
Yet at present, by its very composition, the GTC is not a general council for teachers. It is not made up of independently elected and nominated teachers; just under half of the council consists of nominees of the Secretary of State and of non-teaching organisations. Teaching unions, especially the National Union of Teachers, which has lobbied us on the matter, believe that the composition of the council should be amended to provide for teachers to form a majority of members sufficient to guarantee its independence and representative nature and to justify its description as a council for teachers. The amendment is intended to probe the Government's intention in that regard. I beg to move.
Lord Northbourne: I oppose the amendment. The General Teaching Council is intended to be a council to improve the standard of teaching and learning in this country. Indeed, an amendment to that effect was included in the Bill. The council is not solely for the benefit of teachers.
Baroness Ashton of Upholland: As the noble Baroness, Lady Sharp, said, Amendment No. 322—and Amendment No. 323—would change the wording of one of the new functions of the General Teaching Council. The Bill already achieves what I believe the noble Baroness seeks. The new promotional role is one of a number of additions in the Bill to the functions of the General Teaching Council as set out in the Teaching and Higher Education Act 1998. I know that noble Lords took a special interest in the establishment of the General Teaching Council during the passage of the founding legislation.
I shall take a little time—but only a little time—to remind the Committee of the core features of the Act. The principal aims of the General Teaching Council are to contribute to improving the standards of teaching and the quality of learning and to maintain and improve standards of professional conduct among
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teachers in the interests of the public. Its key function under the Act is to regulate the profession through maintenance of a register of qualified teachers and through the exercise of disciplinary functions and to advise the Secretary of State on that and a range of other professional matters. The Committee will know that those include standards of teaching, standards of conduct for teachers, the role of the profession and recruitment.
Our intention in introducing the new function of promoting the standing of the teaching profession is to put beyond doubt the role of the GTC in speaking up for the teaching profession and thereby raising its status, morale and public standards. There are 44 teachers on the General Teaching Council out of 64 members in total. As the noble Lord, Lord Northbourne said, the new function is to be about the role and standards of teachers and to promote teaching. It is important to ensure that a balance of people serve on the council. It is entirely consistent with the public interest that the GTC should promote the standing of the teaching profession. I am therefore doubtful that the amendment would add anything to the Bill and I hope that the noble Baroness will agree to withdraw it.
Baroness Sharp of Guildford: I thank the Minister for her reply. The concept of regulation here is of course one of self-regulation, just as the GMC is a self-regulatory organisation in the medical profession. That is why it is important that there should be a substantial number of those from within the profession on the council. I am reassured by the fact that the Minister told us that they now comprise 44 of the 64 members. That is approaching a better balance.
If the GTC is to secure the wholehearted support of the members of the profession, it is extremely important that it is seen as a body that raises the professional status of teaching. That is really the import of the amendment, but, as the Minister suggests, it is in a sense semantic. Her reassurance is helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 323 not moved.]
Schedule 12 agreed to.
Clauses 144 and 145 agreed to.
10.30 p.m.
Clause 146 [Childcare functions of Her Majesty's Chief Inspector and National Assembly for Wales]:
Lord Roberts of Conwymoved Amendment No. 324:
Page 89, line 37, leave out "have" and insert "by order specify"
The noble Lord said: Subsection (2) of Clause 146 reads awkwardly and my amendments are simply an effort to improve the drafting. I hope that they will achieve the same objective.
Baroness Farrington of Ribbleton: Childcare and early years functions of both Her Majesty's Chief Inspector of Schools in England and the National

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Assembly in Wales are confined to those set out in the Children Act 1989, as amended by the Care Standards Act 2000. This means that those bodies can only regulate childcare providers covered by those Acts. Parents who use those forms of childcare and whose income otherwise makes them eligible can claim childcare tax credit to help pay for the cost of that childcare.
Clause 146 would allow HMCI and the National Assembly's functions to be extended to approve providers who fall outside the Children Act confines and in doing so would allow parents who used those providers to receive childcare tax credit support. As work patterns and family circumstances change over time, we need to be flexible and ensure that support arrangements, such as childcare, can adapt accordingly. That is why we need to allow for those national bodies responsible for regulating mainstream childcare services to be able to take on new functions, if they are necessary, to approve additional providers.
I am advised that the current wording of Clause 146 needs to be maintained for two reasons. First, the amendment does not specify on whom the functions are to be imposed. Even if we were to resolve that, we would need a new amendment to do so. Secondly, Clause 146(2), as drafted, gives the Assembly power to confer functions on itself. The effect of the proposed amendment would mean that the Assembly would be under a duty to specify additional functions. The Secretary of State would be under no such duty in respect of England. By placing the Assembly under such a duty, it would work against a fundamental and important principle of devolution that the Assembly should have choice in such matters.
For those reasons, I hope that the noble Lord will withdraw his amendment.
Lord Roberts of Conwy: Once again I am reassured by the explanation of the noble Baroness, but I still think that the wording of subsection (2) is unnecessarily complex. I wish that it were simplified and perhaps it can be looked at further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 325 not moved.]
Clause 146 agreed to.
Lord Northbournemoved Amendment No. 325A:
After Clause 146, insert the following new clause—
"AMENDMENT OF SECTION 79A OF THE CHILDREN ACT 1989
(1) Section 79A of the Children Act 1989 (c. 41) is amended as follows.
(2) In subsection (2), after "premises" there is inserted "or other suitable premises".
(3) After subsection (6), there is inserted—
"(6A) "Other suitable premises" means any premises other than domestic premises which are suitable to be registered for childcare."."
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The noble Lord said: The amendment is tabled to address a dilemma that has arisen out of the change of the inspecting authority for childcare registration from the local authority to Ofsted.
Ofsted has formed the opinion that certain family centres are operating childcare illegally because the Children Act 1989, as amended by the Care Standards Act 2000, now provides that childminders may only be registered if they are operating from "domestic premises".
A particular case in point is the Soho family centre which has provided suitable accommodation, training and support to selected childminders as part of its wider services to parents in Soho since 1986. Westminster social services department recognised the quality of the work being done by childminders at the centre and was prepared to designate the premises as "domestic premises". Ofsted would not.
At the national level it is strange that childminders may operate only from domestic premises. Surely there can be advantages under certain circumstances if childminding takes place in premises designed and equipped for the purpose. Is it not important that childminding should be available in areas where most of the residential accommodation is in units that are too small or too crowded to provide proper space for childcare? Are there not significant advantages in having specialist training and supervision of childminders on site?
Looking at the broader canvas of our developing society, is it not important that affordable childcare, including care of very young children, should be available at or near the mother's place of work? I shall say no more at this stage as I understand that the Minister may be helpful on this amendment. I beg to move.
Baroness Blatch: I support the noble Lord, Lord Northbourne, in his amendment. I referred earlier to childminders, and their registration. Like playgroups, they are now very vulnerable because of some of the measures that have recently been put in place. However well intentioned they are, such measures could work against the supply of childminders, and the ability of some of these organisations to exist—very often in places where they are most needed.
Baroness Howe of Idlicote: I support the amendment. It certainly seems strange to me that premises of this kind, with all the support that they are able to provide for individual minders—and, indeed, for the families who leave their children at such premises—are no longer to be regarded as acceptable. It does not make any real sense. One gathers that such organisations are unable to recruit new replacement minders, all of whom would have the benefit of being supervised and trained, as well as benefiting from the mutual inter-action with one another. The parents would also have the benefit of knowing that their children were under, as it were, dual supervision. Some explanation is required as to why this has not been

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dealt with; and, indeed, cannot be dealt with under the Bill. I hope that the Minister will be able to explain why this type of establishment is not now acceptable.
Baroness Walmsley: I rise briefly to support the amendment. It seems to me that the Government need to do everything that they can to increase the pool from which childminders can be drawn, while paying attention to appropriate quality at all times. Clearly, a great deal of benefit can be gained from the mutual group support that minders in such a situation can obtain. Moreover, this provides employment opportunities, and the chance to increase skills and qualifications among a group of people who may not otherwise have such opportunities. There would also be further benefits for their own families, as well as for the children whom they mind.
Baroness Ashton of Upholland: As the noble Lord, Lord Northbourne, said, Section 79A(2) of the Children Act 1989 clearly defines childminding for reward as taking place on domestic premises, and other forms of day care as taking place on non-domestic premises. I acknowledge that there are childcare facilities—I believe that the Soho family centre will have been in touch with noble Lords, as, indeed, it has been with me—that wish to operate on non-domestic premises and that seek to offer the kind of service for parents, children, and the local community normally associated with childminding.
I recognise that childminding is an attractive option for some people who, for different reasons, may not wish to work in their own home. We have been in touch with Ofsted, and we are assured that such arrangements can be accommodated under existing group day care registration requirements with little or no impact on the service to parents and children. Ofsted has also advised that it stands ready to consider favourably an application from the Soho family centre on this basis. I can tell the Committee that there is no question of such a valuable local facility being closed clown if such an application is made. As I said previously, the head of Ofsted's Early Years section, Maggie Smith, is making a courtesy visit on 11th June. I use the word "courtesy", because this will not be an inspection. I hope that that issue will be quickly resolved.
The point about the proposed amendment is that it would make a fundamental change in the legislation. Although I accept the reasons behind the amendment, there are wider implications involved. I do not believe that I should accept the latter without consulting within the childcare profession by talking to childminders, the National Childminders' Association, the Daycare Trust, and others, with whom I launched "National Childcare Month" today. As the noble Baroness, Lady Walsmley, will be aware, I did so specifically to continue to increase the pool of childminders available to us. With those reassurances, I hope that the noble Lord, Lord Northbourne, will feel able to withdraw his amendment.
I have been worrying for some hours about the comments of the noble Baroness, Lady Blatch, on the ratio of one teacher to every 10 children in a playgroup. It did not ring any bells with me, so I took
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the trouble of asking the department to send the figures over to me, as it is important for those who will read the debate in Hansard, and indeed for the playgroups about which the noble Baroness is concerned. The target is that by 2004 all settings delivering a foundation-stage curriculum should have access to input and advice from a qualified teacher. The target ratio for involvement is one teacher to every 10 non-maintained settings. We are seeking that for every 10 playgroups or settings there should be one qualified teacher available to offer advice and support for those delivering the curriculum.
I hope that that will change the nature of the issue and that Members of the Committee will be reassured.
Lord Northbourne: Before the Minister sits down, perhaps I may ask a question. Will the alternative form of registration, which I understand is proposed for the Soho family centre and other similar centres, increase the cost of the provision?
Baroness Ashton of Upholland: That would have an impact on parents. I am assured that this measure can be carried out without an impact on parents. It is my assumption—I would certainly want to know the reason if it were to have that effect—that there will be no increased cost. If that is incorrect, the noble Lord will wish to return to the issue on Report. In the meantime, I will have written to him if my assumption is incorrect.
Lord Northbourne: I am most grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 147 agreed to.
Schedule 13 agreed to.
Clauses 148 to 150 agreed to.
Schedule 14 [Inspection of nursery education]:
Baroness Blatchmoved Amendment No. 326:
Page 170, line 37, at end insert—
"Rights of entry
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: There are two reasons why the amendment is important. First, by referring the Minister to paragraph 18 of Schedule 26 to the 1998 Act I hope I may raise her awareness of the Gothic horror of bureaucracy which has been allowed to grow since 1997, under which schools, teachers and governors now labour.
Something needs to be done about that regulatory nightmare. I hope it will be addressed positively, well before Report. The Minister should not underestimate the importance the professional world of teaching attaches to getting a grip on the department's bureaucracy.
Secondly, the amendment adds a further test of reasonableness to the behaviour of inspectors. Nursery schools are typically small, local affairs, run

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by dedicated teachers and managers. They should not be borne down by bureaucracy, yet wherever one goes in the nursery world one hears tales of endless and endlessly changing demands for paperwork that have little or nothing to do with the mission of teaching.
I know schools where papers, policy documents and reports demanded by inspectors for just one inspection fill many boxes. There should be a test of reasonableness in the quantity and the nature of the material demanded by inspectors, particularly when schools can be rendered guilty of a criminal offence for non-compliance.
If the Minister were to agree to insert a defence of reasonableness, it would be a positive signal to nursery schools up and down the land. It would be even better if she were to clamp down on the misplaced zeal of paperchasers everywhere. I can think of no sensible reason why the amendment should be resisted. If it is, I promise the Minister that it will result in great disappointment throughout the nursery education sector—and we wouldn't want that to happen, would we? I beg to move.
10.45 p.m.
Baroness Ashton of Upholland: I have no evidence to suggest that the early years sector would be disappointed. I will resist the amendment because it is unnecessary. I take on what the noble Baroness, Lady Blatch, is saying about making sure that we do not overburden schools. The department has been looking at the issue and has cut back on the amount of paper and work sent to schools. However, we are always looking to ensure that we give schools the right kind of information for there is, as ever, a balance to be struck.
Paragraph 18(2)(b) of Schedule 26 to the School Standards and Framework Act already makes it clear that a nursery education inspector or a member of the inspectorate monitoring inspection should copy only documents that are required for the purposes of conducting or monitoring the inspection. And in exercising statutory functions under the School Standards and Framework Act, the chief inspector must in any case act reasonably according to the normal principles of administrative law. There is of course an official complaints procedure for any provider who believes that Ofsted acted unreasonably.
The inspection framework governing nursery education is not designed to be onerous and burdensome. Inspections of nursery education are carried our every two to four years except where there are concerns or where weaknesses have been identified. In those cases, a subsequent inspection is carried out within one to two years. In addition, Ofsted has recently reviewed the inspection framework for funded nursery education. As a result, combining nursery education inspections with the annual Children Act inspections will produce a more streamlined service for providers. I am sure that that will be welcomed by the noble Baroness.
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I believe that the addition of the word "reasonable" is therefore unnecessary and on that basis I invite the noble Baroness to withdraw her amendment.
Baroness Blatch: There appear to be two worlds: that of the department and the real world in which schools exist. The schools in the real world are experiencing over-zealous demands for paperwork and preparation for inspections. The Minister says that there is nothing to worry about, that it does not happen and that many safeguards are in place. However, the truth is that it is happening in reality and it is being experienced in particular by the small nursery schools which are now subject to inspection.
I cannot see what is wrong with the word "reasonable". Its inclusion will send out a message that at least there is a test of reasonableness to be applied. It would cost nothing and it would be so comforting to a sector of education which the Government want to cherish and nurture. It is a mean-spirited rejection and I am sorry it has happened so late at night. I beg leave to withdraw the amendment but I shall return to it.
Amendment, by leave, withdrawn.
Schedule 14 agreed to.
Clause 151 [Meaning of "nursery school" and "primary education']:
Baroness Walmsley Baroness Walmsley moved Amendment No. 326A:
Page 91, leave out lines 3 to 5.
The noble Baroness said: Amendment No. 326A has been suggested by the charity, the Pre-school Learning Alliance, which is concerned about the implications of the Bill as it stands for very young children in preschool settings. The solution proposed by this amendment is to remove from the definitions of "primary education" the section that refers to,
"full-time or part-time education suitable to the requirements of children who have attained the age of two but are under compulsory school age".
It seems to us, from the inclusion of this age group in the Bill, that the Government are including two to five year-olds in the definition of "primary education".
Officials at the DFES have suggested that the purpose of the clause is to tidy up an anomaly to reflect current practice and to raise the status of early years education. Those who are concerned about the quality of early years education are more concerned about its appropriateness than its status and this clause calls that into question.
This is because the clause raises the possibility of an inappropriate formalisation of early years education. All the experts in early years agree that children will benefit most from the commencement of formal education, first, when they are ready for it and, secondly, when it is built on secure foundation skills, abilities and attitudes. When a child has developed good language skills, he or she will be able to learn to read and write readily. When he or she has learnt social skills, he or she will be able to work and play happily as part of a group in a classroom. When children have developed their physical co-ordination, they will be

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able to use equipment to continue their learning and explore the world. And so on with emotional development and so forth.
Already there is widespread concern about the age at which children start primary schooling. Doing so at four years of age is much younger than in similar developed countries. There are considerable anomalies within the system. A four year-old in a play group or nursery setting will benefit from a much lower adult/ pupil ratio than a similar four year-old in the reception class of a primary school. There are concerns among early years educators that this may be positively harmful. The environment of the reception class, according to Tomorrow's Children, an independent report on pre-schools commissioned by the department in 1999, may not be able to reflect the broader needs of young children. Indeed, very young children—four year-olds—may well be intimidated by an earlier start to their schooling and may experience distress.
Ministers are rightly concerned about family poverty and raising school standards. This imperative makes it all the more important that the experience that children have in pre-school settings is appropriate and lays the right foundation so that they will be able to benefit fully from their formal education when the time comes.
We are concerned also that, by deeming primary education to start at two, the clause would devalue the Government's own early learning goals, which emphasise the acquisition of literacy and numeracy through structured play and within the context of the child's overall development. The goals are linked to the concept of the foundation stage, which is useful in that it distinguishes nursery education from compulsory schooling. However, the inclusion of this clause blurs the boundaries again.
There are other confusions about the foundation stage, since it is defined at starting at three and finishing at the end of the reception year, which may he at any age from almost five to almost six—a disparity of a whole year, which is a long time in the life of a small child. The clause compounds that confusion.
Will the Minister please clarify the Government's intentions? Does the foundation stage now begin at two? Should two year-olds be working towards the early learning goals? Is there a plan to introduce a curriculum for the under-threes? I beg to move.
Lord Northbourne: I should like to add, in the light of my earlier amendments, that we seem to be in a terrible muddle. The foundation stage starts at three and runs from three to five. I have suggested that learning in the years before that is quite a different kind of learning; namely, family learning. Here, we now suddenly have primary education starting at two. Surely we ought to try to have some sort of co-ordination and recognise the need for learning before school, learning in school supported by family, and
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then learning in primary school. Whatever the ages should be, they should be the same in both parts of the legislation.
Baroness Ashton of Upholland: The paragraph that the amendment seeks to delete from the Bill helps to develop and to refine the existing definition of primary education in the Education Act 1996. It updates that definition to reflect current practice, as we move towards universal provision of nursery education for all three year-olds, which we have already achieved for four year-olds. The new definition recognises the distinctiveness of nursery education in a way that the previous definition did not.
I should like to offer my reassurances that this clause is not designed to change the way in which nursery education is provided. I know that many noble Lords are concerned about the potential for very young children to be pushed into an overly formal approach to learning when they are too young, particularly if they are in a primary school environment. This clause is simply about definitions, and not about the institutions in which children learn. Nor does it change the curriculum, where the guidance on the foundation stage has been so well received by practitioners in the early years field.
Nursery education has always been a sub-set of the definition of primary education. This clause makes the distinctive nature of that stage much clearer—particularly that it is normally provided part time. The existing definition refers only to full-time education for pupils below the age of 10 and a half. The Bill introduces a more distinct definition of nursery education which: recognises the practice in nursery schools of offering children either a morning or an afternoon session; and that the nursery phase of primary education is intended for children between the ages of two and compulsory school age.
We are seeking to develop legislation to reflect practice. It is also our intention to introduce greater clarity and distinctiveness to legislation which bears on this important phase of children's education and development.
I hope that, with that clarification, the noble Baroness, Lady Walmsley, will be able to withdraw her amendment.
Baroness Walmsley: I thank the Minister for her response. Those in early years education will read her remarks in Hansard with great care.I shall take advice, and we may possibly return to the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 151 agreed to.
Clauses 152 to 157 agreed to.
Clause 158 [Power to inspect registered schools]:
Lord Lucasmoved Amendment No. 327:
Page 94, line 22, leave out "if the registration authority so requires,"
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 328.

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There are ways of publishing information to make it accessible and ways of publishing it to make it inaccessible. Ofsted is the guiding light in this matter. Ofsted publishes in full all its inspection reports on the Internet. It also employs a URL address which makes schools instantly identifiable if one knows the identification number. Consequently, in my role as the person who runs the Good Schools Guide, I can—like many other websites—directly access Ofsted reports. Furthermore, anyone running anything resembling a website concerned with education can offer visitors instant access to the Ofsted reports on schools. I do not think that the Government could find a better example of good practice in making information as widely available as possible.
Conversely, independent schools have for a long time not published their inspection reports on the Internet. One had to apply to the school for a report, but, if it so wished, it might provide only a summary. One could sometimes get the full report out of an independent school, but the report would only be in printed form. One certainly had no right to publish the report or make it available to others on the Internet. Some independent schools have recently adopted the practice of publishing reports on the Internet. However, they do so in a manner that makes access difficult. As far as I can see, they use random URLs so that there is no way of telling at which URL the report on a given school is located. They also do not allow third parties to link directly to reports. So although the reports are available on the Internet, they are not, unlike Ofsted reports, easily accessible to the general public. That is inconvenient to me, but it is also an inconvenience for the general public.
Clause 158 provides a power to arrange,
"if the registration authority so requires … for the publication of the report in the prescribed manner".
My Amendment No. 327 would remove,
"if the registration so requires",
to make publication compulsory. My Amendment No. 328 would add the words, "and in particular on the internet", to ensure that publication occurs in that way.
What I would really like is for the Government to require that these reports are as easily and publicly accessible as Ofsted reports. If the Minister can tell me that that is what the provision is intended to do, I shall be content.
Lord Davies of Oldham: Although I shall give the noble Lord, Lord Lucas, an encouraging reply, I have learned from long experience of debating these issues with him that unless the reply is 100 per cent to his satisfaction, he will come back at me with a further request. I anticipate that this reply will not satisfy him totally, but I shall go as far as I possibly can.
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Amendment No. 327 seeks to ensure that every inspection report on an independent school is published. We accept that parents of all pupils in independent schools should have access to published reports on their child's school. We also propose that every report following the regular six-year cycle of inspections will be published. However—and this is where I know I shall disappoint the noble Lord—we believe that there may be occasions when we request a rather limited inspection to be undertaken against just one of the standards we have set out in Clause 152 and the policy statement or seek interim reports as part of a follow-up to a previous inspection. In these circumstances, we wish to retain the freedom to decide whether to require each individual report to be published. However, I hope that the noble Lord recognises that we accept his case in relation to the substantial inspection reports on independent schools.
I shall not go all the way with the noble Lord in relation to his second amendment either. However, I hope that I shall go far enough. It is our intention that reports of inspections of independent schools will be published on the appropriate inspection body's website, as the noble Lord suggested. But we intend that this requirement should not be set out on the face of the Bill in primary legislation; we shall do it through secondary legislation. However, the objective which the noble Lord seeks in the two amendments—that is, that full inspection reports which tell the public where a school is at in terms of its performance as regards the six-yearly cycle of the inspections—will be published and will be available on the Internet.
11 p.m.
Lord Lucas: I find those replies entirely satisfactory. I am grateful to the noble Lord for what he said. I shall do him the further courtesy of writing to him to set out exactly what I hope that he will require in regulations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 328 not moved.]
Clause 158 agreed to.
Clauses 159 to 163 agreed to.
Clause 164 [Unsuitable proprietors and employees]:
Lord Davies of Oldhammoved Amendment No. 329:
Page 99, line 6, leave out from "that" to end of line 7 and insert "any person who, in relation to the school, carries out any work to which section 138 applies"
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendment No. 330:
Page 99, line 8, leave out from "out" to "in" in line 9 and insert "that work"
On Question, amendment agreed to.
Clause 164, as amended, agreed to.
Clauses 165 to 170 agreed to.

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Clause 171 [Training and education provided in the workplace for 14 to 16 year olds]:
Baroness Sharp of Guildfordmoved Amendment No. 331:
Page 101, line 29, at end insert—
"() In section 6 (financial resources: conditions), after subsection (6) there is inserted—
"(7) Regulations may be made under this section making provision requiring any person to whom resources are provided under section 5(1)(ea) to satisfy conditions relating to any matter referred to in subsections (3), (4) or (5) of this section or to any other matter as the Secretary of State may consider appropriate.""
The noble Baroness said: In moving Amendment No. 331, I wish to speak also to Amendment No. 332. The amendments deal with slightly different issues, although they are connected. Amendment No. 331 is aimed at improving the quality of work-based experience. Section 5 of the Learning and Skills Act 2000 allows the Learning and Skills Council to fund education or training for pupils in the last two years of compulsory schooling. Clause 171 extends that to enable funded provision at the premises of the employer.
The purpose of Amendment No. 331 is to help ensure that any such provision is properly resourced and of sufficient quality. Any employer seeking to provide education or training for pupils in the last two years of compulsory schooling must satisfy the conditions laid out in regulations. The experience of the modern apprenticeship programme is not necessarily reassuring. The Cassels report, The Way to Work, found modern apprenticeships to be peripheral to education and training. Young people do not choose apprenticeships; parents do not see them as a worthwhile route; careers advisers see them as a last resort; and employers do not notice them at all. Worse still, completion rates are poor. Current attainment rates, defined as gaining the associated NVQ, are 49 per cent for advanced and 41 per cent for foundation apprenticeships. Far too many of those who start apprenticeship courses get a minimum acquaintance with what they are supposed to be doing and then leave the course for paid employment. That is not satisfactory.
The introduction of inspections in 1998 highlighted problems with work-based training such as weak initial assessment and induction, poor tackling of key skills, a rather hit and miss attitude to off-the-job training and poor monitoring rates. Interestingly enough, the programmes that were inspected and found to be wanting also recorded a substantial increase in performance once they had been inspected. Some 90 per cent of those were able to put things right by the time they were re-inspected. That shows that it is important to monitor and inspect.
The point of the amendment is that where we propose to provide work based training for 14 to 16 year-olds who are still in compulsory education, it is vitally important that we make sure that those employers who participate in it know what their obligations are and provide the proper basis for training so that they do not put the young people off
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or, preferably, that they actually help them—as the proposals for 14 to 19 year-olds want us to do—forward towards a proper vocational qualification.
Amendment No. 332 is about inspection. It would ensure that schools were not over-inspected. Clause 171 will extend the age range for Ofsted/adult learning inspectorate area inspections from the 16 to 19 group to the 14 to 19 group. The adult learning inspectorate would be able to inspect those work-based schemes. In its recent consultation document, Improving Inspections, Improving Schools, Ofsted stated that it was keen to reduce the burden of inspections on schools and set out a number of proposals to ensure that schools were not over-inspected. The amendment places such a safeguard in the Bill.
Ofsted has proposed that primary schools that were subject to a Schedule 10 inspection should be exempt from other inspections, evaluations or surveys for a period of at least nine months. It is unclear why the exemption is not being applied to other schools. That is particularly necessary when there are overlapping responsibilities, as there may be in this case between Ofsted and ALI when pupils in the 14 to 16 group are subject to Ofsted in relation to their school work and to ALI in relation to their work-based programme. The idea therefore is that, once inspected, there should be an interval between inspections of at least 18 months. That is the purpose of the amendment. I beg to move.
Baroness Blatch: I support much of what the noble Baroness, Lady Sharp, said. We predicted that there would be confusion and some duplication. The last thing that we want now is duplication. Over-inspection will kill the enthusiasm of schools to comply and get on with the work that they do best. The rationality that we were promised has not entirely come to fruition.
Baroness Darcy de Knayth: I support the amendment, particularly Amendment No. 331, which involves a subject that has been close to my heart for a long time. It involves a realistic way of ensuring that the approach reaches a successful reality.
Lord Davies of Oldham: I have to say that we do not believe that the amendment is necessary. The section of the Learning and Skills Act 2000 that the amendment seeks to change gives the LSC the power to ensure proper accountability for the public funding that the council disburses each year. The mechanism for that involves conditions that the LSC may attach to its funding—to ensure, for instance, that it can recover money that is not used for its intended purpose.
In passing the 2000 Act, Parliament considered that an LSC condition-making power was the right requirement for the funding of every college, every sixth form and every training provider that receives LSC funding. That involves billions of pounds of funding for thousands of providers—all are covered by the LSC conditions. Yet the amendment suggests that in the case of the very small amount of funding that the LSC may decide to put into workplace

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training for 14 to 16 year-olds the full weight of regulation by the Secretary of State is necessary. We do not consider that to be the case.
The Secretary of State has all the levers required to ensure that the LSC acts in accordance with the Government's policy priorities—for instance, through the annual grant letter and other forms of guidance. That could be backed up by directions from the Secretary of State under the Learning and Skills Act to the LSC relating to the achievement of objectives.
Ensuring that any funding given to training providers is used properly and in accordance with those priorities is clearly the job of the LSC to secure through conditions of grant that the 2000 Act already allows. I do not see any circumstances in which the Secretary of State might lack the levers needed to ensure that funding for workplace learning for 14 to 16 year-olds was used effectively and properly and that it complemented the vast bulk of provision for 14 to 16 year-olds that is funded by LEAs. That is why I hope that the noble Baroness recognises that the amendment is not acceptable, although we recognise the importance of proper accountability for public funds.
On Amendment No. 332, I wish to echo the sentiments expressed by my honourable friend the Minister of State for School Standards during the debate on this amendment in another place. The aim which underpins this amendment is, of course, a sound one and one which the Government and Ofsted share.
Under the leadership of the former chief inspector, Mike Tomlinson, significant progress was made in reducing the burdens associated with inspection, including the introduction of guaranteed periods of exemption following Section 10 inspections. There are also provisions elsewhere in the Bill which will reduce the number of inspection visits. I believe that that was the burden of the contribution of the noble Baroness, Lady Darcy of Knayth. The current minimum exemption period for secondary schools is 12 weeks, but for most schools the interval between inspections will of course be considerably longer.
It is for the new inspector, David Bell, to take this important work forward and, in particular, to explore the possibilities of linking some secondary school inspections to the programme of area-wide inspections. The extension of the scope of area inspections to cover provision across the 14 to 19 age range must not, and will not, result in a significant increase in the overall inspection burden on secondary schools. I take seriously the point made by the noble Baroness, Lady Blatch, about the pressure on schools to undergo inspection. I want to reiterate the assurances made by the Minister of State that:
"Schools will be visited during area inspections only where it is necessary to enable inspectors to obtain the evidence they need, and that would not otherwise be available to them. Those visits will be as brief as possible, and certainly much shorter than the full Section 10 inspection".
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There is a problem in relation to the amendment which the Minister of State in another place recognised and explained. The amendment would have the unfortunate consequence of constraining the ability of inspectors to do their job efficiently. Perhaps I may give an illustration. Tower Hamlets was subject to an area inspection in the spring of 2000. In the following term—the summer term—a secondary school, Stepney Green, was found in a Section 10 inspection to require special measures. Had there been an 18-month interval between the inspections, there would have been almost a year's delay in triggering the action necessary to ensure that the school's pupils received at least a satisfactory standard of education.
I understand the intention to ensure that inspections are properly spaced out. But I believe that the above case illustrates why it would be wrong for us to have a statutory 18-month separation period. That would mean that effective and immediate action in difficult circumstances could not be taken. Therefore, on the basis of that argument, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Sharp of Guildford: I thank the Minister for his reply. In relation to Amendment No. 331, what worries us somewhat about the current situation is that, under the new arrangements, the aim is for the transition between compulsory school age work-based learning into apprenticeships to be very easy. We are anxious to see more people moving into apprenticeships and it is, of course, extremely important that the quality of provision is high.
The LSC and its inspection regime of such workplaces is still in a relatively early phase, and I believe that we need to monitor the situation carefully in order to ensure that it is working. I shall withdraw the amendment. Nevertheless, I hope very much that we shall keep a wary eye on that situation.
In relation to the second amendment, I see the point that the Minister is making and I understand that that is the case. Again, I believe that we need to be wary lest there is over-inspection. We have entered a situation in which we are inclined to think that the answer to all our problems is to have an inspection, but I believe it is important that we do not react in that way. However, I accept the Minister's assurances on the matter and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 332 not moved.]
Clause 171 agreed to.
Clauses 172 and 173 agreed to.
Clause 174 [Allowances in respect of education or training]:
11.15 p.m.
Baroness Davidmoved Amendment No. 333:
Page 105, line 36, leave out "may" and insert "shall"
The noble Baroness said: Amendments Nos. 333, 334 and 335 are to clarify the Government's intentions regarding the future development of education

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maintenance allowances, which are currently being piloted in 56 areas, and whether the scheme will be extended nationally.
EMAs give financial support to enable students age 16 to 19 of limited means to continue in sixth form or a college of further education. The 1974 to 1979 Labour Government were the first to see the need to provide additional support for young people to stay in education. The 1979 Labour manifesto declared:
"We will remove financial barriers which prevent young people with low incomes from continuing their education after 16. We will introduce legislation for income-related mandatory awards to all 16 to 18-year-olds on all full-time courses".
I am sorry that the noble Baroness, Lady Williams, is not in her place because she piloted the scheme in 1978 and obtained funds to expand it in 1979. The awful gap between 16 and 18, when young people's expenditure is not covered, may force them out of education.
These probing amendments are designed to identify how far, 20 years later, the Government have moved towards meeting Labour's 1979 manifesto commitment. Clause 174 is welcome because it paves the way for a general extension of support for 16 to 19year-olds using EMAs but as drafted, that is a power rather than a duty. Amendment No. 333 would turn that power to a duty and as such, there would be a guarantee that young people in all areas of the country will have equitable access to a national system of support.
To meet national targets for young people's achievements, it is important to do everything possible to increase the number of young people who continue in full-time education after 16. That particularly applies to students from low-income households who might benefit greatly from staying on at school or college but are deterred by financial worries.
The EMA scheme was introduced in pilot form to establish whether regular financial support would help the target group to stay in full-time education. A Government study, published in March 2002 as DFES Research Report 333, concluded that the scheme had an impact. EMAs have enabled more young people from low-income households to continue in education. The learning agreements signed as part of the scheme have helped them to be good attenders and diligent in their work. In pilot areas, EMAs are becoming well established as part of the local community's expectations.
Originally there were 15 pilot LEAs, but now 56 are involved—roughly one third of the whole country. Pilots were important, to try out different variants. EMAs have grown and spread well beyond a small number of local experiments. They have become an established expectation in one third of the country and it is time to ask whether there will be national coverage.
Unjustifiable variations in the educational opportunities available to young people have always caused concern. The scale of variations and their long-term effects on achievement and quality of life become more acute as young people move beyond compulsory
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schooling. The current pattern of EMA provision means that whether or not young people in identical circumstances can afford to stay in full-time education may depend on whether they live on one side of the street or the other—and whether or not their LEA has a pilot scheme. Could the Government clarify their intentions for the future of EMAs? When do they expect to achieve national coverage? It is an important matter, and I hope that the Minister can give me a satisfactory reply. I beg to move.
Baroness Sharp of Guildford: I support the amendment. The educational maintenance awards, as the noble Baroness, Lady David, said, have been piloted for some time now and have proved to be extraordinarily successful in helping to keep some of those who, traditionally, have dropped out of full-time education after 16. In the light of the Government's aim of increasing participation in higher education, especially among those from lower social classes, the awards are an important mechanism for enabling such pupils to get the qualifications they require.
Lord Davies of Oldham: I support the concept behind the amendment and I appreciate the force with which my noble friend Lady David argued the case. Although, as my noble friend said, the origins of EMAs go back as far back as 1978, she knows that the real step forward was the launch of the pilot schemes in 1999. They now cover a third of the country—56 local education authorities. The enthusiasm of my noble friend and of the noble Baroness, Lady Sharp of Guildford, is backed up by the people most directly involved—students, schools and colleges. College principals and teachers have recognised the value of the EMA scheme. We are conscious of the fact that pilot schemes cannot last for ever. In any case, a pilot scheme that covers a third of the country is fairly advanced. However, we do not think it appropriate to put a commitment to EMAs into the Bill. The development of EMAs is a spending issue, and any decision must be taken within the framework of the summer spending review. We must consider EMAs alongside all other expenditure priorities and come to a view about whether and when to move to a national scheme.
My noble friend joins a wide phalanx of supporters of EMAs whose enthusiasm is based on substantial evidence that they hit specified targets. My noble friend will recognise that the amendment would not be entirely acceptable even if we intended to make such a change. I am sure that she did not intend that legislation passed here would break the devolution model and insist that Wales follow exactly the same pattern of provision as England. The National Assembly for Wales has the right to make its own decision on any scheme and the way it would operate.
I recognise that my noble friend has taken the opportunity to table a probing amendment to advance the cause of EMAs. We recognise that the pilot stage is at an end and that any decision must be taken in the context of the spending review.
Baroness David: I thank the noble Baroness, Lady Sharp, for her support and I thank the Minister for his

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partial support. I believe he realises the point and has shown some enthusiasm for it, if not total commitment to it. The spending review will have to take account of a good many demands. In the light of the Government's enthusiasm for 50 per cent of young people to go to university, it is essential, if they do not have the support of their families between the ages of 16 and 18, that they are properly funded. I hope that the Minister will encourage the Government to promote the pilot scheme across the country, including in Wales. In the mean time, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 334 and 335 not moved.]
Clause 174 agreed to.
Clauses 175 to 178 agreed to.
Clause 179 [Student loans]:
Baroness Blatchmoved Amendment No. 336:
Page 109, line 38, at end insert ", according to criteria which may include the nature of employment undertaken by a person, or that person's income, but not the type of school within which a person is employed"
The noble Baroness said: Given the crisis in the recruitment and the retention of teachers, should the aim be to encourage trainees in the shortage subjects irrespective of where they will teach eventually? As the Minister knows, teachers move in and out of the state and the independent sectors and some straddle both sectors. Clause 179 allows the Government to implement plans to pay off student loans for newly qualified teachers in shortage subjects in maintained schools or in the further education sector. That provides the opportunity to argue that the Government should remove all inequities between students who take undergraduate teacher training courses and those who take postgraduate courses. Both sets of students should be entitled equally to the benefit of any government scheme to provide incentives to enter teaching including the payment of training bursaries.
The future of three and four-year B.Ed courses has been in jeopardy since the Government have paid training bursaries to postgraduate trainees, but cutting off that route into the profession is short-sighted in terms of establishing a diverse and stable teaching force. Although the new financial incentives for postgraduate courses are welcome, they compound the existing inequity whereby B.Ed students must pay tuition fees, while postgraduate students do not.
The Bachelor of Education courses, as the Minister knows, are four-year courses and predominantly serve teachers for primary schools. Teachers in primary schools are almost always generalists, sometimes with a strength in a particular subject area, but they are not recruited exclusively as subject specialists. Therefore, they would be disadvantaged under the concessions announced by the Government. Education in the country as a whole benefits from a highly qualified teaching force. Nurses and doctors on finishing training are not subject to such discrimination as some newly trained teachers will be under this scheme.
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I notice in paragraph 6·1 of the policy note that the subjects for teachers in schools and sixth-form colleges include maths, science, design and technology, information and communications technology, modern languages (including Welsh) and English (including drama). They do not include the well-known shortage subjects of religious education and music. On what basis are those two subjects excluded from the list? It is well known that schools up and down the land are desperately looking for music specialists. It is a subject in the curriculum that has enormous educational spin-offs for many other subjects. That list of subjects appears to be very arbitrary. To include information and communications technology appears to me to be incomprehensible when genuine shortage subjects, for which there is scientific evidence, are not included. I beg to move.
11.30 p.m.
Lord Davies of Oldham: As the Committee will be aware, many maintained schools and colleges, as the noble Baroness, Lady Blatch, identified, are facing significant difficulties in recruiting high-quality teachers and lecturers to teach in shortage subject areas. The scheme is designed both to help recruit high quality teachers of shortage subjects to maintained schools and further education and to keep them there.
I am sure that Members of the Committee will agree that success in recruiting and retaining such teachers is critical to the educational prospects and subsequent life chances of thousands of young people. It is also vital to the country's economic success that we improve educational levels in this country.
The noble Baroness, Lady Blatch, has argued in the same manner as her colleagues did in another place that we should consider extending the scheme to those who teach in the private sector. I can confirm that we have every intention that the scheme should include teachers in non-maintained schools which receive current funding from the public purse; that is to say, non-maintained special schools, city technology colleges and city academies. That is fully in line with our policy of putting such institutions on an equal footing with maintained schools.
However, it surely would not be the appropriate use of taxpayers' money to fund this kind of recruitment and retention incentive for teachers in the wider independent sector. After all, the Government are not responsible for the pay and conditions of the staff in that sector. They are entirely matters for the schools concerned. It is open to them to make arrangements to help their staff to repay outstanding loans if they wish to do so. Extending our proposed scheme to such teachers would reduce the funds available to finance this and other incentives to those we need to attract in maintained schools and colleges. That cannot be right.
While we recognise the contribution made by independent schools, our priority must be to ensure that there are enough good teachers in the right subjects in the maintained sector to deliver the transformation in education to which this Government are committed. If someone works part-time—say 50 per cent in a shortage subject—that

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person receives a pro-rata write-off of the loans which they have taken out. We cover the part-time teacher within the framework as well.
We are not sure that the noble Baroness is right when she states that RE and music are shortage subjects. Schools can always deploy more music teachers. One could always seek to improve ratios even down to the level of individual music tuition, which is necessary at some stages. But that is different from saying that it fits into the pattern of shortage subjects where we are in danger of being unable to provide significant core subjects for courses which students need to pursue in order to advance their careers either in the wider world or into further and higher education. There are insufficient numbers of specialist teachers in such areas. We know that when we speak about mathematicians and physicists we are in a situation where in a number of schools the staff teaching these subjects do not have specialist qualifications in those areas. That is a situation which we intend to remedy.
This scheme is designed, entirely appropriately, to seek to meet a defined and clear need to which the noble Baroness draws attention quite often, not least in Parliamentary Questions in this Chamber regarding teacher shortage. That is what this scheme is designed to do. We do not believe that it is appropriate that the scheme should be extended to the independent sector.
Baroness Blatch: I am not sure where the noble Lord has been living since being involved with the education department because for some time there has been a shortage of specialist RE teachers. There is a shortage of full-time music specialists teaching music across the curriculum. I am not talking about teachers who take individual musical instrument tuition. Therefore, I am really talking about class-based music teachers and certainly heads of music departments. I should like the noble Lord to think again about the matter and to perhaps bring some statistics forward on Report.
The Minister also referred to the subjects as non-core subjects. Design and technology is a foundation subject, but not a non-core subject; RE is a compulsory subject; and music is a foundation subject. Information and communications technology is not a core subject; it is a foundation subject.
Can the noble Lord tell me why there is no distinction for and no discrimination against medics, whether they work in the private health sector or the National Health Service, and yet there is discrimination against teachers?
Lord Davies of Oldham: I am concerned at this time with the Education Bill and not health matters. Therefore, I have not looked up the position with regard to medics. So far as concerns the independent education sector, given that in many areas significant fees are charged of students, it seems a little odd that the noble Baroness should ask for a state subsidy to ensure that there are sufficient teachers. The
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independent sector in many areas is well resourced and has the responsibility of ensuring that it is properly staffed. It is not a matter for the state.
Baroness Blatch: The noble Lord may be concerned only with education, I am concerned with consistency of policy across government. I am also concerned with a level playing field. I am not special pleading in that sense. I just think that there is no level playing field here between being a medic receiving a concessionary bursary, irrespective of where he works. We are talking about when medics are students in training and teachers when they are students in training and the debts that they build up. I am talking about a level playing field and consistency of government policy. But the noble Lord is unable to defend the consistency of government policy. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 179 agreed to.
Clause 180 [Education action zones]:
On Question, Whether Clause 180 shall stand part of the Bill?
Baroness Blatch: I use the mechanism of seeking to take this clause out of the Bill in order to raise with the Minister one or two areas of concern about education action zones. EAZs, as the noble Lord knows, were set up in 1998 to allow local partnerships using private investment to raise standards in disadvantaged urban and rural areas. The total cost of the project was £155 million between 1998 and 2002.
Despite hoping to raise up to 25 per cent of the value of the Government's grant, a report by the National Audit Office found that by 1998–99 the total value of business contributions received by the zones amounted to only half of what the Government expected.
Education action zones were also criticised for failing to have any effect on standards in secondary schools. The Ofsted press release of 5th March 2001 stated that,
"the work of the zones has had no significant impact on standards in secondary schools".
We welcome the aim to improve standards and achievement in some of our most difficult schools. But to have any lasting impact on pupils' futures these initiatives must be shown to have had a tangible effect. Far from being successful, education action zones have proved to be a severe disappointment, both in getting businesses involved and in bringing innovation into the classroom.
Large sums of public money have been spent on these expensive schemes without any proper positive evaluation of whether the zones have any effect on our schools. There is a question mark over whether the zones have really achieved all that was expected of them.

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The first 25 of the 73 existing education action zones were established by the Secretary of State for Education and Employment in 1998–99. The Comptroller and Auditor General stated in paragraph 2 of his report:
"The Department have developed a strategy to assess what impact the Zones are having on local education standards, and are required to report progress and achievements to the Secretary of State in December of each year".
What is that strategy? Who performs the assessments? Why can we not have the reports? We were told that there would be a report each December. We are now in the fourth year and I have yet to see a single annual report. Paragraph 8 of the report states:
"in the early days of the their existence, some Zones were spending large sums of public money before they had sound financial controls in place, creating risks of poor accounting, impropriety or poor value for money. In addition some Zones experienced difficulty in raising the expected level of business contributions. Further, there were some instances where Forum members did not even know or did not understand their role and responsibilities".
It is true that the report finds that,
"The Department responded positively to those issues".
However, it goes on to state:
"The Department and the Zones will need to remain vigilant to ensure that risks to financial control and corporate governance are well managed to avoid irregularities or improprieties that could detract from the Zones' educational achievements".
The report identified the following issues:
"Forum members must have a basic understanding of accounting disciplines and procedures and, where appropriate, access to qualified professional advice".
Do they have that?
"Each Zone should have procedures to ensure that their purchasing decisions are competitive and that business partners do not gain any commercial advantage through their position on the Action Forum".
Do we know whether that has been effective?
"Zones should attach conditions to the grants that they award".
Are they now doing that?
The report continues:
"We consider that there are a number of wider lessons that can be learned from the establishment of the Zones that can be applied to other government programmes involving the setting up of innovative new bodies".
I think that I have said enough to demonstrate that there are real concerns. There was a rocky start. The involvement of businesses has not been as the Government predicted. It would be helpful to know what happened to those annual reports and whether we can see them.
Lord Davies of Oldham: The noble Baroness, Lady Blatch, advances trenchant criticisms of education action zones. But as she knows, they are under contract to continue for another two-and-a-half years in some cases. The intention behind the Bill is to seek to effect improvements against a background in which the noble Baroness has identified some legitimate criticisms of how the zones have operated, although in some areas she has been more than a little harsh.
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The noble Baroness will have noticed that primary school standards have risen in inner city areas where the education action zones have been effective. She must also recognise that her criticisms may be valid against some education action zones but are not such as to justify a general onslaught on them. In any case, she must recognise that our intention is to create a framework in the Bill in which we can learn from past mistakes and improve the operation of the zones.
The noble Baroness asked one or two specific questions. She asked: do the zones now have professional advice? The answer is yes. There are conditions on all grants to education action zones. Zones themselves attach conditions to the grants that they make. I confess that I am a little perplexed by her statement that she has not seen an annual report. The annual report was issued last year and is a public document. I shall ensure that she is sent a copy. Another report is due for the coming year and for the further years during which the zones continue.
The noble Baroness has presented a bleak picture of education action zones. Some have had considerable success. There is no doubt that educational standards are rising in a number of specific areas and education action zones have played their part. The clause is in the Bill to give us a framework within which we can learn from the original conception of the zones. We seek to improve any weaknesses against that background.
I hope that I have given the noble Baroness, Lady Blatch, an assurance that she can have the information that she referred to earlier. We do not share every aspect of her criticism, but we recognise when such criticism is justified and have suggested a framework for improvement.
11.45 p.m.
Baroness Blatch: The noble Lord accuses me of presenting a bleak picture. I have referred only to the Comptroller and Auditor General's report, which is an official report from which I read verbatim. The noble Lord appears to have an advantage over me as he has seen the annual reports and I have not. I am referring not just to the outstanding annual report. I want to see all three reports. Presumably a fourth will be added very soon, so it would be nice to see all four reports.
I am a regular writer of Questions for Written Answer on this issue and I am usually told that the Answers are coming, but then so is Christmas. The noble Lord says that education action zones are under contract and that their intention is to improve. He also doubted my statement about standards in secondary schools. I was quoting verbatim from the Ofsted report. It would be helpful to know what information the Government have to refute Ofsted and the Comptroller and Auditor General's report.
Lord Davies of Oldham: I quoted the junior school improvements, not those for secondary schools.
Baroness Blatch: That is an interesting ploy. I did not mention primary schools. I was referring to

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secondary schools and I would expect the noble Lord to answer the specific points that I raised, not those that I did not raise.
It would be helpful to know between now and Report stage what is the strategy referred to in the Comptroller and Auditor General's report. Who does the assessment? Where are the reports and why have we not received them? I withdraw my opposition to the Question that Clause 180 should stand part of the Bill.
Clause 180 agreed to.
Schedule 15 agreed to.
Clause 181 agreed to.
Schedule 16 [Amendments of School Inspections Act 1996]:
Baroness Walmsleymoved Amendment No. 337:
Page 174, line 22, at end insert—
"In section 2(7) of that Act after paragraph (a) there is inserted—
"(b) shall at least once in each period of five years commencing upon the coming into effect of this Act, carry out a review of the system and framework of inspection and report thereon to the Secretary of State who shall lay a copy of that report before each House of Parliament;"."
The noble Baroness said: This amendment seeks to ensure a five yearly review of the working of Ofsted. If the DFES and Ofsted consider that four or five yearly inspections of schools help them to become dynamic organisations, responsive to a changing world, surely the same can be said about Ofsted itself. The more important one considers the work of Ofsted to be, the more important it is to enhance its public accountability by a regular review by Parliament of how it is working. That is what the proposed wording of paragraph (b) would do.
The Government have recently allowed a review of Ofsted, although not as radical a review as some would have wished. However, this amendment would put such a regular review on the face of the Bill and ensure the benefits of self-evaluation and the informed advice of so-called critical friends for Ofsted itself.
In the decade since Ofsted was established the arrangements for school inspections have evolved considerably. And yet, at the end of 2000, many policy makers and influencers, including the chief inspector, made statements which led many of us to expect a more radical shake-up of the system. It is no bad thing that that should happen to this large organisation every five years. After all, if education itself is changing in response to a changing world, it is reasonable to expect that the system of its inspection should do so too.
One of the most fundamental changes has been the move towards more on-going self-evaluation. We on these Benches hope that this will contribute to improvements in schools and teacher morale. However, the old saying, "What's sauce for the goose is sauce for the gander" might apply here. I beg to move.
Lord Davies of Oldham: The noble Baroness will recognise that the chief inspector already has a
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statutory duty to keep the system of regular school inspection under review. There is no doubting the fact that there has been considerable development of that system since Ofsted's inception in 1992. Indeed, the inspection framework has been subject to regular review and amendment, to reflect the changing legislative and educational environment in which Ofsted operates.
Developments, such as a reduction in the notice period before an inspection, the introduction of more flexible arrangements in which the interval between inspections varies according to the particular circumstances and performance of schools, and shorter inspections for the most effective schools—to name a few—demonstrate that today's system has evolved significantly over the 10 years of Ofsted's existence. The current arrangements have not hindered that development; in fact, they have enabled valuable changes to be implemented as part of a continuous process of reflection and adjustment to changing circumstances.
As I am sure noble Lords are aware, Ofsted has recently conducted a wholesale review of the inspection system, and has consulted widely on a range of proposals to make inspection more responsive to the different circumstances and priorities of schools; more supportive of school improvement; better informed about the views of stakeholders; and better co-ordinated with other inspection and monitoring activity. The consultation document was sent to every school in the country, and the proposals have received widespread support. Ofsted intends to implement the changes from 2003.
Her Majesty's chief inspector is the head of a non-ministerial government department and is, therefore, directly accountable to Parliament for the management of Ofsted, and for the public funds that it administers. In practice, parliamentary scrutiny operates principally through the Education Select Committee in another place. As noble Lords will be aware, that committee has taken a close interest in Ofsted's operations; for example, in 1999 it undertook a very detailed review of Ofsted, and produced an equally detailed report on Ofsted's work. The committee has since established arrangements whereby the chief inspector appears before the committee at least twice a year, providing an opportunity for regular parliamentary scrutiny.
The new chief inspector, David Bell, who took office on the 1st May, has already appeared before the Select Committee—an indication, I am sure noble Lords will agree, of the seriousness with which the committee undertakes its responsibilities to hold Ofsted to account. During that session, David Bell recognised that the inspection system had evolved significantly during the past 10 years; and he confirmed his commitment to further evolutionary change.
Our aim, and that of Her Majesty's chief inspector, is to ensure that school inspections continue to provide a rigorous external check on schools' performance, and achieve the best possible value for money. I can offer the noble Baroness an assurance that we shall

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continue to work with HM chief inspector to ensure that inspection remains relevant to the needs of schools and parents. I hope, therefore, that the noble Baroness will accept this assurance. I also hope that she will recognise that the current arrangements, which include a statutory duty to keep the inspection system under review, foster a process of continual review and development and, therefore, are more appropriate to the ever-changing educational landscape than any five-year review could conceivably be.
As for parliamentary accountability, I am sure that the noble Baroness will recognise the value of the Select Committee in another place, and its determination to hold Ofsted to account. On the basis of my reply, I trust that the noble Baroness will feel able to withdraw her amendment.
Baroness Walmsley: The increase in scrutiny of Ofsted over the years is most welcome; particularly the scrutiny by the Select Committee. Evolution and constant improvement are also welcome. The idea of a five-yearly review was not to replace, but to complement that scrutiny. It is sometimes a good idea to do some spring cleaning and take a radical root-and-branch look at a system and the way its structure is working. Although I believe that it is still a good idea, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 16 agreed to.
Clause 182 agreed to.
Schedule 17 [Amendments of Part 5 of Education Act 1997]:
Lord Davies of Oldhammoved Amendment No. 338:
Page 176, line 5, at end insert—
"A1 (1) Section 23 of the Education Act 1997 (c. 44) (functions of the Qualifications and Curriculum Authority in relation to curriculum and assessment) is amended as follows.
(2) In subsection (1) for the words from "with respect to" to the end there is substituted "with respect to—

(a) pupils at maintained schools in England who have not ceased to be of compulsory school age,

(b) pupils at maintained nursery schools in England, and

(c) children for whom funded nursery education is provided in England otherwise than at a maintained school or maintained nursery school."

(3) In subsection (2)—

(a) in paragraph (a), for "such schools" there is substituted "maintained schools or maintained nursery schools", and

(b) paragraph (f) and the word "and" immediately preceding it are omitted.

(4) After subsection (2) there is inserted—
"(2A) In subsection (2) references to the curriculum for a maintained nursery school include references to the curriculum for any funded nursery education provided as mentioned in subsection (1)(b); and references to assessment in schools include references to assessment in funded nursery education."
(5) Subsections (3) and (4) are omitted.
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(6) In subsection (5), after "test;" there is inserted—
""funded nursery education" has the meaning given by section 73 of the Education Act 2002;"."
The noble Lord said: In moving Amendment No. 338 I shall speak also to government Amendments Nos. 340, 375, 378 and 380. They are technical amendments and consequential repeals rectifying an overlap of powers in the education legislation. These relate to the foundation stage and the functions of the Qualifications Curriculum Authority—QCA—for England and the Qualifications, Curriculum and Assessment Authority—ACCAC—for Wales as set out in Sections 23 and 29 of the Education Act 1997.
They seek to provide consistent roles for QCA and ACCAC so that their functions in relation to children below compulsory school age in foundation stage settings are brought into line with their functions in relation to children who have reached compulsory school age.
I turn to the more substantive government Amendments Nos. 339, 341 and 342. Recent events have revealed that the regulatory authorities' current powers need to be improved if they are to safeguard the effective delivery of qualifications where there has been a failure or there is a serious risk of failure. Currently, if an awarding body is not delivering qualifications satisfactorily, the regulatory authority may make recommendations for improvement. If the awarding body does not co-operate, the authority may withdraw accreditation, and the Secretary of State's approval, from the qualifications concerned. However, that is of no help where learners have begun a course of study leading to a qualification and so withdrawal of accreditation would be impractical. Amendments Nos. 339 and 341 will fill that gap in relation to England and Wales.
We expect those powers to be used as a last resort, in circumstances where there is a risk that significant harm will be done if timely and appropriate action is not taken and where there is evidence that the awarding body cannot or will not take sufficient remedial measures. Indeed, the threat of a direction might be sufficient in itself to initiate appropriate action. The power is not limited to key school qualifications offered by the three English unitary bodies, but may be applied in the context of any accredited qualification.
The power will enable the regulatory authorities to direct an awarding body either to take or to refrain from taking specified steps. Any decision is likely to be a question of balanced judgment based on the facts of the case and it will need to be perceived as having been reached independently. We believe that the regulatory authorities are in a unique position of being both independent and having the relevant professional expertise. As a matter of public law they are of course required to act rationally, and are themselves subject to the jurisdiction of the courts.
It is vital that the regulatory authorities should have a power to be able to enforce a direction if necessary. QCA and ACCAC will have separate powers to direct in their respective areas. That is consistent with their

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separate powers to accredit qualifications. We would expect them to work together where students in both areas are affected. Amendment No. 342 is a consequential amendment to the 1997 Act, extending the new power for QCA to give directions to Northern Ireland in respect of NVQs. That is consistent with QCA's other powers in relation to NVQs in Northern Ireland.
The attainment of qualifications is of great importance to our economic growth, and is of growing importance to the life chances of individuals. It is vital that reasonable measures can be taken to protect the interests of learners and retain confidence in the qualifications system. We believe these amendments will provide that protection.
Amendments Nos. 370 and 371 are technical amendments to Clauses 290(2) and (3) concerning commencements respectively in England and Wales to take account of the introduction of the new amendments to the Education Act 1997 contained in Schedule 17, concerning the responsibilities of QCA and ACCAC.
I turn finally to Amendments Nos. 338A and 338B and reiterate that we are not seeking to be overly prescriptive in setting out the learning areas and the early learning goals for the foundation stage. The Bill already ensures that publicly funded Montessori schools are able to retain current levels of flexibility in the way in which they deliver the foundation stage curriculum. The six areas of learning of the foundation stage curriculum were arrived at after widespread consultation by QCA with the full range of providers of nursery education, including those of Montessori education.
Introduction to the foundation stage has been almost universally welcomed across the sector. The curriculum is not prescriptive in its principles and teaching methods and it is already applied across a range of settings. We would not wish to make it inoperable for any of the practitioners who deliver it.
I recognise that the noble Baroness, Lady Blatch, will want to deploy substantial arguments in respect of the Montessori position, but I wanted to indicate the outline of the Government's response. I am conscious of the lateness of the hour, but she will recognise that we are seeking to work in co-operation of the providers of that tradition of education. On that basis, I beg to move.
Midnight
Baroness Blatchmoved, as an amendment to Amendment No. 338, Amendment No. 338A:
Line 23, 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."
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The noble Baroness said: I am delighted because it sounds as though the Minister is in a co-operative mood and therefore he will have no difficulty with my amendments. Both are designed to explore the same issue. Amendment No. 338A probes whether all those who have Montessori qualifications and who practise Montessori education will be free from pressure to abide by teaching methods that are not in keeping with the Montessori system.
Amendment No. 338B, which I must make clear is intended to apply only to nursery education, probes whether the department, Ofsted and the QCA are prepared to recognise the Montessori qualification as a full and proper qualification appropriate for Montessori education or whether they will require dedicated and experienced teachers and managers in nursery schools to requalify with some other award.
The Montessori system of education is a much valued and widely practised system of education which is recognised fully in dozens of countries world-wide. The Montessori qualification diploma is awarded to those students who complete a minimum of 200 taught hours, undertake a final written and practical exam and participate in 400 hours of supervised and assessed teaching practice in a Montessori setting. It is not something one can pull off a wall; it is a level four qualification.
In the UK, Montessori diplomas are awarded by training providers, or by larger bodies which are both awarding bodies and trainers. There are currently nine awarding bodies, although four are very small.
Montessori schools number about 400 and make up 6 per cent of the trained early years workforce. This is not some eccentric fringe activity indulged in by the middle classes as some ideologues pretend.
Montessori Education (UK), a registered charity, is the national standards body for education in the UK. It has been trying for the past five years, working with the Department for Education and Skills and the QCA, to achieve official status for the Montessori diploma. It is also working with the awarding bodies to agree minimum standards of assessment and course accreditation.
The Montessori bodies—and this is the essence of the argument behind Amendment No. 338A—believe that it would not be appropriate for them to be placed on the National Qualifications Framework by a non-Montessori awarding body because fulfilling all requirements should lead to the essence of Montessori training being lost. Does the Minister accept that? Is that understood by Ofsted and the QCA?
On the other hand, the Montessori sector is too small to set up an awarding body capable of meeting all the Government's many requirements, so it is being driven towards what it describes as the "depressing conclusion" that Montessori training, level four, may have to be expanded to include a further qualification from the framework that already exists. These are level three qualifications only. Students wanting to teach in Montessori schools would be forced to spend extra time taking a qualification at a lower level which was

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in many senses not relevant to Montessori education and possibly methodologically opposed to the Montessori approach.
That cannot be right. Those now attracted to train as Montessori teachers would be discouraged by having to take not one, but two, qualifications. As suggested in Amendment No. 338B, some experienced Montessori teachers and managers are being told that they must retrain to fit the new framework. There is even talk of intimidation. Last year, one qualified Montessori teacher was told that she could not set up a day nursery unless she too had an NVQ level three—an inferior and irrelevant qualification. It is no wonder that she said she felt insulted. Understandably, teachers like her feel that hard won and tested qualifications are not respected by government or their agencies. They feel that their schools and their professionalism are regarded as second rate. In a climate of shortage of early years practitioners, it seems short-sighted to undermine the standing of those who are teaching, or to discourage those who wish to do so. I hope that the Minister can reassure them, and reassure me. In his reference to the amendments so far, he has certainly not done so.
By accepting my amendments, or something like them, the Minister can assure Montessori schools, and the many tens of thousands of parents, that the Montessori diploma will be recognised for all Montessori purposes by the department, by Ofsted and by the QCA. So far, there is no evidence that the department is taking seriously the important differences of process through which Montessori schools work and through which they achieve the same, or better, outcomes as other nursery schools.
Surely the best approach would be to recognise existing Montessori diplomas, to give a firm undertaking—as Amendment No. 338A requires—not to undermine Montessori methods in Montessori schools, and to work for genuine parity. I am talking about Montessori qualifications for teaching only in Montessori schools. This could be achieved if the common elements of what constitutes a licence to teach were clearly identified and offered as a stand-alone entity on the national qualifications framework—one which could be grafted on to existing training offered by Montessori training bodies without imposing a double burden or undermining the Montessori method. This would also ensure equality of opportunity by enabling students to access public funding, at least for the licence-to-practice part of their qualification.
I hope that the Minister will give personal attention to this matter, which is causing a great deal of avoidable anxiety. I beg to move.
Lord Davies of Oldham: As I indicated in my opening remarks, I want to make it clear that the Government value highly the work of Montessori. There is no question of our doing anything to affect its continuing role. None of that is at issue.
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What is at issue is whether all 15 Montessori bodies should separately have qualifications accredited by the QCA as part of the national framework. At present, none has presented qualifications for accreditation, but they are in discussion with the QCA on how best to do so. I believe that that is the way forward. I am sure that we shall reach a satisfactory conclusion.
The reason for wanting to avoid a proliferation of qualifications is that employers, service users and those seeking qualifications will find those qualifications more transparent and easier to understand. Too many qualifications will mean that the framework is incomprehensible to those who wish to use it.
In relation to the amendment moved by the noble Baroness, Lady Blatch, we believe it is vital that the QCA should be able to exercise its responsibilities even- handedly in respect of all awarding bodies seeking accreditation for external qualification. The amendment would mean that the QCA would not be able to consider the soundness of Montessori qualifications, or whether it is necessary or helpful for qualifications from all 15 organisations to be accredited. Nor could they seek improvement to their quality before accreditation. This would put the Montessori organisations in a unique position among more than 100 awarding bodies that may each consider, as probably all do, that they have special characteristics. I believe it would be inappropriate to make an exception of any awarding body in this way in primary legislation.
I emphasise to the noble Baroness, Lady Blatch, that this is not about one size fitting all. Where there are genuine and important differences between qualifications, that will of course be respected. While there may in the long term be a move towards requiring providers to hold qualifications within the national framework, we know, first, that this is a matter for the long and not the short term; and, secondly, that we would never put the Montessori contribution to early education at risk.
Of course parents expect staff to be properly qualified. In setting requirements, it has been important to strike a balance between minimum standards that give parents confidence and the need for flexibility to respect different traditions. We fully recognise the distinctiveness of the Montessori tradition, as we recognise the arguments that the noble Baroness, Lady Blatch, has put forward, but we do not think that accrediting qualifications without applying the usual processes would be an appropriate reflection of this distinctiveness.
As no Montessori qualification has ever been submitted to QCA for accreditation, it cannot be said at this time to be a level 4 qualification. The term level 4 relates solely to the national framework. There are also some very small awarding bodies. With 15 Montessori organisations currently providing qualifications, it seems very unlikely that they cannot muster a suitable awarding body. I reiterate to the noble Baroness, Lady Blatch, that we respect the Montessori tradition. We do not seek to do anything

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other than to ensure that it continues to play the valuable part that it does. However, we do not think that it would be right to make exceptions in primary legislation for one body when there are so many others that would seek to claim equity in these terms. Nevertheless, I assure her that proposals for movement towards the requirements in the legislation will be gradual and made with due consultation and a long-term perspective.
Baroness Blatch: That is a very confusing answer. I also detected the departmental bias against Montessori in some of the Minister's answers, all confused up with the empathetic and sympathetic noises he was making. He said that the requirements will not put Montessori education at risk. I believe that if Montessori organisations are forced to abandon Montessori qualifications for Montessori education and come within a framework that does not apply to Montessori education, Montessori education will certainly be put at risk. That would give the lie to the Minister's comment about the Government's wish to work with Montessori and for Montessori to continue to flourish. Given that there is choice and diversity in every other form of education, choice and diversity should also be allowed to flourish at nursery level. The Government should be engaged in measuring the outcomes of Montessori education, just as they should measure the outcomes of all other forms of nursery education.
The Minister promises me that discussions are going on with QCA. He also said that no qualification has been submitted to QCA for evaluation. I ask him to write to me on that, as I shall not prolong this debate, and let me know whether such an evaluation has ever been requested. If so, has it ever been refused by the Montessori people? We shall return to this on Report. I beg leave to withdraw the amendment.
Amendment No. 338A, as an amendment to Amendment No. 338, by leave, withdrawn.
On Question, Amendment No. 338 agreed to.
[Amendment No. 338B not moved.]
12.15 a.m.
Lord Davies of Oldhammoved Amendments Nos. 339 to 342:
Page 176, line 32, at end insert—
"2A After section 26 of the Education Act 1997 (c. 44) there is inserted—

26A POWER OF AUTHORITY TO GIVE DIRECTIONS
(1) If it appears to the Qualifications and Curriculum Authority—

(a) that any person (in this section referred to as "the awarding body") who, either alone or jointly with others, awards or authenticates any qualification accredited by the Authority has failed or is likely to fail to comply with any condition subject to which the accreditation has effect, and

(b) that the failure—

(i) prejudices or would be likely to prejudice the proper award or authentication of the qualification, or

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(ii) prejudices or would be likely to prejudice persons who might reasonably be expected to seek to obtain the qualification,

the Authority may direct the awarding body to take or refrain from taking specified steps with a view to securing compliance with the conditions subject to which the accreditation has effect.
(2) It shall be the duty of the awarding body to comply with any direction under this section.
(3) Any direction under this section is enforceable, on the application of the Qualifications and Curriculum Authority—

(a) in England and Wales, by a mandatory order, or

(b) in Northern Ireland, by an order of mandamus.""

Page 176, line 33, at end insert—
"2B (1) Section 29 of the Education Act 1997 (c. 44) (functions of the Qualifications, Curriculum and Assessment Authority for Wales in relation to curriculum and assessment) is amended as follows.
(2) In subsection (1) for the words from "with respect to" to the end there is substituted "with respect to—

(a) pupils at maintained schools in Wales who have not ceased to be of compulsory school age,

(b) pupils at maintained nursery schools in Wales, and

(c) children for whom funded nursery education is provided in Wales otherwise than at a maintained school or maintained nursery school."

(3) In subsection (2)—

(a) in paragraph (a), for "such schools" there is substituted "maintained schools or maintained nursery schools", and

(b) paragraph (f) and the word "and" immediately preceding it are omitted.

(4) After subsection (2) there is inserted—
"(2A) In subsection (2) references to the curriculum for a maintained nursery school include references to the curriculum for any funded nursery education provided as mentioned in subsection (I)(c); and references to assessment in schools include references to assessment in funded nursery education."
(5) Subsections (3) and (4) are omitted.
(6) At the end of subsection (5) there is inserted "; and "funded nursery education" has the meaning given by section 94 of the Education Act 2002"."
Page 177, line 17, at end insert—
"5 After section 32 of the Education Act 1997 (c. 44) there is inserted—

32A POWER OF AUTHORITY TO GIVE DIRECTIONS
(1) If it appears to the Qualifications, Curriculum and Assessment Authority for Wales—

(a) that any person (in this section referred to as "the awarding body") who, either alone or jointly with others, awards or authenticates any qualification accredited by the Authority has failed or is likely to fail to comply with any condition subject to which the accreditation has effect, and

(b) that the failure—

(i) prejudices or would be likely to prejudice the proper award or authentication of the qualification, or

(ii) prejudices or would be likely to prejudice persons who might reasonably be expected to seek to obtain the qualification,

the Authority may direct the awarding body to take or refrain from taking specified steps with a view to securing compliance with the conditions subject to which the accreditation has effect.
(2) It shall be the duty of the awarding body to comply with any direction under this section.

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(3) Any direction under this section is enforceable, on the application of the Qualifications, Curriculum and Assessment Authority for Wales, by a mandatory order.""
Page 177, line 17, at end insert—
"Provisions extending to Northern Ireland
6 In section 58(6) of the Education Act 1997 (c. 44) (provisions extending to Northern Ireland), for "section 26" there is substituted "sections 26 and 26A"."
On Question, amendments agreed to.
Schedule 17, as amended, agreed to.
Clause 183 [LEA functions: qualifications]:
On Question, Whether Clause 183 shall stand part of the Bill?
Lord Lucas: What is it for?
Baroness Farrington of Ribbleton: This clause is intended to clarify the legal position of local education authorities in England and Wales to engage in the award or authentication of educational qualifications. It ensures that LEAs are able to develop, deliver and award qualifications and to charge a fee in respect of those services. The clause also enables an LEA to make arrangements with other persons and form, participate in or be a member of a body corporate in order to exercise its powers in relation to educational qualifications.
This clause does not add to what LEAs already do. It merely clarifies their powers to do what they have done for many years. It confers express and specific powers on LEAs to enable them to develop, deliver and award qualifications and to charge a fee in respect of those services. The clause also enables LEAs to make arrangements with other persons and form, participate in or be members of a body corporate in order to exercise these powers.
The clause is intended to be clarificatory. The powers are therefore expressed as always having been within the powers of an LEA, and are without prejudice to its other powers. I recommend therefore that this clause should stand part of the Bill. An example for the noble Lord is the Oxfordshire LEA music certificate and the Cornwall LEA Cornish graded examinations. However, the bulk of the qualifications to which Clause 183 relates are provided by the Welsh Joint Education Committee which is a major player in both Wales and England. I re-emphasise that Clause 183 is intended to clarify the position. It will not give LEAs powers to do anything that they have not already been doing for many years. I commend the clause to the noble Lord and hope that my response has satisfied him.
Baroness Blatch: What is unclear about the present statute? Given that this does not replace the present statute, does that mean that there is a present statute which covers the present state of affairs and we now have a new statute in Clause 183 which will overlay the existing one?
Baroness Farrington of Ribbleton: I say to the noble Baroness, Lady Blatch, that questions have arisen over
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a number of years about whether LEAs can lawfully carry out these activities. I emphasise that the clause does no more than clarify powers for LEAs to do what they have done for many years. In particular, the clause is intended to clarify the powers of the WJEC and bring to an end any possible question about the WJEC's powers by making them explicit. Such clarification will allow it to concentrate on delivering the high quality services of education in Wales that I am sure we all want. The clause expresses these powers to have always been within the powers of LEAs. That reflects our interpretation of existing legislation. It also removes any doubt as to the validity of qualifications that students have already obtained where the awarding body is an LEA.
Lord Lucas: Do these qualifications fall under the ambit of the QCA, as we have just learnt Montessori education should, or are they for some reason a little island all on their own?
Baroness Farrington of Ribbleton: It is my understanding that, as with all qualifications, in particular the WJEC ones, they would be approved. If I am proved to be wrong on that, I shall write to the noble Lord.
Clause 183 agreed to.
Clause 184 agreed to.
Clause 185 [Directions to bring forward proposals to secure regional provision]:
Lord Roberts of Conwymoved Amendment No. 343:
Page 113, line 21, at end insert "including the costs to pupils' parents"
The noble Lord said: There is considerable interest in educational circles in Wales about regional provision for children with special educational needs. We already have some such schools, which draw pupils from outside the local LEA boundary, and their services are highly regarded. It is unclear how the parents of SEN children fare in that arrangement. They obviously incur costs if they transport their children long distances to attend special schools. My concern is that such costs should be recognised and, if possible, met. There is no mention of parental costs in the proposals. The purpose of the amendment is to draw attention to them.
If those regional special education schools are established to cater for children in two or more authority areas, to what extent will the parents' costs be met, especially the costs of those who live at the extremities of the region? I need not remind the Minister that there are some very large regions in Wales—Powys, for example, is 150 miles from one end to the other. We must ensure that those parents are not disadvantaged.
Amendment No. 344 relates to Clause 189, which deals with the provision of information that may assist parents to choose schools for their children. Increased public awareness of the quality of education provided at a school assists in assessing the efficiency of a school's management. The clause takes a very guarded

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approach to the provision of such information, which is defined as "qualifying material" that is to be provided or prescribed by the Assembly. The Assembly will also specify who is to receive it. The publication of such material is at local authority or governing body level.
The likelihood is that if one is a parent choosing a school, one's ability to compare school performances will be confined to schools in one's local authority area. Bearing in mind that Wales has 22 LEAs covering 3 million people, the areas are quite small and schools within a particular LEA are, frankly, much of a muchness, with some notable exceptions among secondary schools.
The amendment would counter what I shall call the guarded approach to the provision of information about schools. The public generally, as well as parents, have a right to know about the schools in their area, especially if they are council tax payers and potential employers. It would also be salutary if some knowledge was available about how local schools stand in comparison with similar schools elsewhere. Some schools might be encouraged by such comparisons to improve themselves and to raise their standards. A little competition between schools is not at all bad; it exists in any case, especially at the local level, and might be turned to good purpose. I beg to move.
Baroness Farrington of Ribbleton: I shall speak first to Amendment No. 343. Under Clause 185, the National Assembly for Wales may direct the LEA or governing body of a school to exercise its existing statutory powers to bring forward proposals for the establishment, alteration or discontinuance of schools in order to secure that regional provision is made for children with special educational needs.
The noble Lord, Lord Roberts, emphasised that he was concerned about any costs that may fall on parents. The aim of this clause is to ensure that all costs of any proposals made in pursuance of a direction under the clause fall to the relevant LEA with regard to the establishment and funding of such regional centres, irrespective of the category of school. The intention is to avoid an individual governing body having to bear the costs of implementing proposals which relate to the reorganisation of regional facilities.
Therefore, I suggest that the noble Lord's amendment is misconceived. Schedule 6 to the 1998 Act is concerned with the cost of implementing statutory proposals as between LEAs and governing bodies. None of those costs falls to be borne by parents.
However, the noble Lord referred specifically to transport costs. As he is well aware, I know—occasionally to my cost late at night—the length of the county of Powys. We anticipate that all children who are likely to require placement in a regional facility will have severe and complex special educational needs. Such children and young people would be in possession of a statement of special educational needs. As such, the vast majority of costs associated with
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meeting their educational needs would be met by the LEA in which the child or young person resides, including any transport costs.
Under the 1977 Scholarships and Benefits Regulations, as revised under the School Standards and Framework Act 1998 and the Payment of School Expenses Regulations 1999, local authorities have the discretionary power to grant assistance to parents who are unable to meet school uniform costs.
With regard to Amendment No. 344, I understand the reason that the noble Lord tabled that amendment. I believe that there is very little difference between what we and the noble Lord are seeking to achieve with Clause 189. The origin of the clause is in the Welsh Assembly's desire to ensure that qualifying material—that is, information—published by LEAs and the governing bodies of maintained schools in Wales includes comparative and contextual information and that it is available to the public. The clause, as drafted, enables that to happen.
Following consultation and compliance with the Welsh Assembly's procedures for approving subordinate legislation, all LEAs and schools in Wales will be required to publish qualifying material on the same basis. The material will encompass the assessment and examination results of each school and a range of value-added indicators placing each school's results in context.
Parents will be able to obtain the results of all schools for which their children are prospective pupils, and further afield if they wish, and make fair and direct comparisons of the standards attained in each school. Other members of the public will be able to do the same.
Therefore, the noble Lord, Lord Roberts of Conwy, need have no fear: there is no intention of withholding the information from the public. In fact, the opposite applies. All LEAs and schools will publish meaningful and useful material on the same basis. That will help parents to choose a school for the children, increase public awareness of the quality and standards of education and assist in assessing how well schools manage resources. With those explanations, I hope that the noble Lord, Lord Roberts, will feel able to withdraw the amendment.
Lord Roberts of Conwy: I am grateful to the noble Baroness for her comments on these two amendments. I am particularly reassured that parental costs will be met if the parents have children who attend these proposed regional centres.
The noble Baroness said that if the children were statemented—if I may use that description—then, of course, such costs would be covered by the statement. Children in Wales—an all-party group involving both Houses—recently reported that not all children received statements and much work had yet to be done on encouraging LEAs to ensure that parents were aware of their right to have children statemented.
Baroness Farrington of Ribbleton: I am not clear whether the noble Lord is referring to children whose

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level of special need is not great enough to require a statement or to occasional difficulties in ensuring that children's needs are assessed as quickly as necessary. Perhaps the noble Lord will write to me before Report stage to clarify the situation. I do not believe that regional special centres are likely to be used by children for whom a statemented special need would be inappropriate.
Lord Roberts of Conwy: I will certainly look into the matter more deeply but the all-party group reported that LEAs in Wales do not always provide statements where they are required and that progress needs to be made in that sphere. I am grateful for the Minister's comments about the qualifying material and her assurances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 185 agreed to.
Clauses 186 to 188 agreed to.
Schedule 18 agreed to.
Clause 189 [Publication and provision of material]:
[Amendment No. 344 not moved.]
Clause 189 agreed to.
Clause 190 agreed to.
12.30 a.m.
Clause 191 [Transition from primary to secondary school]:
Lord Roberts of Conwymoved Amendment No. 345:
Page 116, line 46, after second "to" insert "parental wishes and"
The noble Lord said: Clause 191 deals with the transition of children from primary to secondary school and gives power to the National Assembly to require the governors of secondary schools and their feeder primary schools to draw up plans to ease the transition. Regard has to be paid to guidance given by the National Assembly.
The amendments highlight the need to take parental wishes into account and make the choice of school by parents a reality. There is no mention of parental wishes in the clause, which is entirely devoted to the administrative convenience of the education system. I thought that we had moved beyond the straitjacket of fixed catchment areas and similar rigidities towards greater flexibility and parental choice. Here we are moving back in time, under the guise of easing the transition from one type of school to another. Is there more to the easement provided than administrative convenience?
Subsection (5) makes it clear that governing bodies and head teachers must have regard to plans when discharging their functions. Clause 191 is a further tightening of the screw. Plans seem to matter more than the well being of the individual child. I beg to move.
Baroness Farrington of Ribbleton: Although I understand the sentiments behind the amendment, I believe that the reasoning for tabling them is flawed.
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The noble Lord, Lord Roberts of Conwy, may have thought that subsection (2) of Clause 191 related to school admissions policies. It does not. School admissions are governed by the provisions of Part III of the School Standards and Framework Act 1998 and, subject to the passage of this Bill, the additional provisions set out in Chapter 3, Clauses 44 to 48. The question of whether an individual pupil should be admitted from a primary school to a secondary school will be decided under those provisions. That is, rightly, where the question of parental wishes, to which the noble Lord referred, applies.
Clause 191 is concerned with measures to improve standards. It may help your Lordships if I outline the policy considerations behind it. Significant numbers of pupils in Wales do not build upon their achievements at the end of primary school. By the age of 14—the end of key stage 3—they do not attain the levels expected on the basis of where they had reached at age 11. In other words, there is a dip in performance. The evidence produced by Her Majesty's Inspectorate for Education and Training in Wales is that the dip in performance at the end of key stage 3 is less pronounced if there has been effective joint planning by primary and secondary schools to facilitate the transition of pupils from one to the other.
The National Assembly for Wales wishes to see best practice in effective joint planning embedded in the life of schools. The clause, therefore, places a duty on the governing bodies of secondary schools and their feeder primary schools to plan together for the better and smoother transition of pupils. It would hardly be reasonable to ask a school to engage in planning when, perhaps, only one child from a particular school at the other end of a large area wished to transfer to the school because of parental choice. That would be an unreasonable burden, and I fear that the noble Baroness, Lady Blatch, might even accuse us of being over-bureaucratic were we to support it.
Given the reference in the clause to drawing up joint plans to facilitate transition, the National Assembly for Wales will produce guidance that could, for example, allow a primary school in a rural area that sends a small number of pupils to be treated as a feeder school.
The noble Lord, Lord Roberts of Conwy, referred to parental choice. Of course, parents may choose to transfer their child from a primary school that has never before served as a feeder. That is not the issue in this case. It is an entirely different matter, to be dealt with according to the wishes of parents. As I explained, the policy objective behind Clause 191 is effective planning between the governing bodies of schools. Subsection (4) requires governing bodies to have regard to any guidance issued by the National Assembly in discharging their functions to draw up transition plans.
The discussion of the noble Lord's amendment has given me the opportunity to reassure him. I hope that, given my explanations, the noble Lord will be able to withdraw the amendment.
Baroness Blatch: The Minister will not be surprised to hear that I would look askance at her if she were to agree to such a level of bureaucracy. I hope that she will agree that it is important that there should be succession arrangements for an individual child moving from one school to another, particularly if the child is moving across key stages and even more so if the child has special educational needs. Much time is wasted in the receiving school if the profile of the child and any information about the child's educational needs do not arrive in time. That could certainly be improved.
Baroness Farrington of Ribbleton: As a parent whose children went through the state school system, I cannot disagree with the noble Baroness. Speaking for the Government on the subject of Wales, it is not for me to make judgments on the judgments made on matters that have rightly been devolved to the National Assembly for Wales. Considering the care with which they put forward the proposals, I would be extremely surprised if they did not consider the aspect on which the noble Baroness and I, hypothetically in the context of England, agree.
Lord Roberts of Conwy: I am grateful to the Minister for assuring me that parental wishes will feature in this context. With regard to the dip in performance at the end of key stage 3, as mentioned by the noble Baroness, it is difficult to believe that that can be planned out of existence. Surely the individual child and his or her condition has a great deal to do with the position. Nevertheless, I also appreciate that transition at the end of key stage 3 from one school to another is an important stage in a child's life. It is important that that transition should be as easy as possible and as beneficial as possible for the child. I should like more time to consider what the Minister has said and to investigate the matter further.
Baroness Farrington of Ribbleton: I ask the noble Lord to consider the child who transfers from primary to secondary school only to find that he or she has to repeat a whole year's work that was covered by the primary school, or the child who transfers only to discover that he or she has not covered the necessary work in order to keep up. That should be overcome by the schools working together.
Lord Roberts of Conwy: I agree with the Minister. Of course, the transition is important as my noble friend Lady Blatch said. It has to be planned as well as possible to ensure that the kind of eventuality that the noble Baroness described of overlapping does not occur. I shall consider the matter further and possibly return to it. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 346 not moved.]
Clause 191 agreed to.
Lord Lucas Lord Lucas moved Amendment No. 347:
Before Clause 192, insert the following new clause—

SCHOOL TRANSPORT
(1) The Education Act 1996 (c. 56) is amended as follows.
(2) In section 509 (provision of transport etc.)—

(a) subsection (2) is omitted;

(b) in subsection (3), leave out all words after paragraph (b); and

(c) subsection (4) is omitted."

The noble Lord said: In moving Amendment No. 347 I shall speak also to Amendment No. 348. These subjects are entirely separate. I hope that the Minister will not pay particular attention to the drafting of Amendment No. 347. Education Acts are extremely difficult to tackle these days. I set these amendments against the copy of the 1996 Act that I have, but it has been amended by several Acts since then. I have no idea whether the Act that I acquired from the Printed Paper Office is the Act in force or whether the parts that I am trying to amend have disappeared entirely. We may return to that on another day on another subject, but it appears to me that noble Lords should be able to have access to the Act as it is rather than the Act as it was about 10 years ago.
Dealing with school transport is a problem for all local authorities, particularly those in rural areas. Most of them seem to respond with a mixture of resignation and inflexibility. If they generally have quite efficient systems for organising the buses—people would complain if they did not—it is one of the few opportunities that they have for saving money.
But the result is often that parents have a greatly restricted chance to choose schools. The example I know best is Winchester. There are three very good secondary schools there. A pupil is allocated to one of them according to where he or she lives. If a parent chooses another, as many do, then one has to use a car. The schools are about half a mile apart in the middle of Winchester. It would be dead simple for the bus which brought pupils to one school to trundle off to the others afterwards. It would cost very little extra, but it cannot be done because the local authority says that it cannot.
One of the principal reasons why the local authority cannot do it is that there is a prohibition on charging anything. It cannot charge for the extra half mile involved and so there is no way of recovering the extra cost and so it does not do it. The result is that instead of a school bus with 40 pupils on board travelling half a mile, one has 40 parents travelling eight miles each, which is an enormous waste of time, money, road space and the convenience of everybody else.
I hope that what I am proposing here is unnecessary because it will all be possible under Clause 2 of the Bill in that it will be allowable for a local education authority to say that it wishes to dis-apply under the relevant parts of the 1996 Act and to run a new school transport system on a new and innovative basis. People are entitled to have their statutory entitlement free, but if a child lives two and a half miles from the school and wants to use the school bus, that can be

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paid for. That is for the convenience of everybody because the parents do not have to travel in by themselves and the child gets a lift into school each morning, but pays rather less than it would cost the parent to run a car.
I believe that one would reach a position under those circumstances where it became possible for a local authority to turn its attention to what the parents want rather than to how it saves as much money as possible on providing as little as possible under its statutory obligation to provide school transport.
That is very much the argument I make as regards Amendment No. 347 and I hope that it is one which the Government, if they are not tackling it now, will view sympathetically should a local education authority come to them under Clause 2 and say it is something that it would like to do. One or two experiments exist at the moment which seem to point in that direction. I hope that the Minister can give help on that.
Amendment No. 348 tackles a very small but longstanding problem about who is in charge of discipline on school buses. At the moment it is meant to be the bus driver, but he is supposed to be driving the bus and really has very little ability to control what goes on in the back of it. There can be occasions when bullying and indiscipline occur. At present there is no easy way of controlling such things. I am proposing that we should move to the American model where discipline on school buses is the responsibility of the school. In many parts of the American system there are video cameras on the buses. The tape is handed to the school at the end of the run and if there have been any complaints the tape can be looked at and the school then deals with the matter as part of its discipline. That seems to work extremely well. I beg to move.
Baroness Sharp of Guildford: I rise to speak to Amendment No. 348A and the consequential Amendments Nos. 379A and 379B. Before doing so I say to the noble Lord, Lord Lucas, that while there are obviously difficulties in Hampshire, they appear to be less so in Surrey where we run some joint school buses and are about to introduce an American yellow bus scheme which will link feeder primaries and secondaries. They will be taking a group of children along a feeder route. It will be very interesting to see how it works out.
As regards Amendment No. 348A, it relates to transport of those over the compulsory school age. Section 509 of the Education Act 1996 and its predecessors have long been recognised as inadequate in ensuring that individual learners receive assistance with the transport they need in order to participate in learning after the age of 16. The main reason for this is that the current formulation allows a local education authority to determine whether it thinks that transport is necessary to facilitate attendance. Faced with increasing financial pressures many local education authorities have become increasingly restrictive in their policies for assisting with transport over compulsory school age. That trend accelerated in 1993
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after the incorporation of the colleges. Many local education authorities saw the loss of control of colleges as a justification for further withdrawal, both in respect of transport and of further education student support generally.
As a consequence, many colleges came under pressure to provide assistance with transport. Colleges increasingly found it necessary to provide financial assistance from the resources available for learning delivery. The position eased a little with the introduction of college access funds which provided an additional source of funding for student support. The available data suggest that some 45 per cent of access funds are spent on transport assistance. However, that has done little to improve the overall funding available for student support, since total resources for access and related funds amount only to some £110 million a year. That is excluding the EMA pilot scheme that we discussed earlier.
Clause 193 and Schedule 19 to the Bill offer some acknowledgement of these problems. In doing so, first, they strengthen the obligations on LEAs while not laying on them an absolute duty to secure adequate transport provision. Secondly, they assume that colleges' governing bodies will continue to have to make a direct provision in respect of learners for whom the LEA fails to provide support. Thirdly, they focus only on the 16 to 19 year-olds, leaving the present position in respect of adults unchanged. Lastly, they fail to recognise the additional transport needs which will arise from the development of vocational and work-based learning at key stage 4.
The proposed new clause, which of necessity must be seen as a replacement for rather than a complement to, Clause 193 and Schedule 19 to the current Bill, seeks to address these weaknesses. It gives the LEAs sole responsibility for dealing with student transport matters. It lays a duty on LEAs to secure transport provision, rather than allowing discretion, which can be used to shift the burden on to learners and their families. It ensures that the duty extends to adults as well as the 16 to 19 year-olds. It ensures that the duty can be objectively assessed by integrating the criteria proposed in Schedule 19 for the assessment of transport needs into an expanded duty. It ensures that that duty extends to the provision of transport to colleges and employers' premises where this is required as part of the key stage 4 learning programme. Lastly, it strengthens existing provisions in regard to equity of treatment between school and college students.
Amendments Nos. 379A and 379B are purely consequential upon the clause.
Baroness Blatch: I think that it was at Second Reading that I flagged up one of the issues arising from the Government's plans. We know that at this stage they are only proposals. We also know at this stage that there is still consultation to be had about plans for 14 to 19 year-olds. One of the huge issues that needs to be addressed—and I suggest that it should be properly addressed by the Government—is the logistics of creating timetables for individual students from the age of 14 through to 19, particularly in the rural areas

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where a student can be educated partly at school, partly in the workplace and partly in a further education college. These young people will not be moving around in neat packages but in ones and twos across towns and down country lanes.
The whole issue of transport will be much greater than even the one described by the noble Baroness, Lady Sharp. One cannot go forward with an exciting proposition for 14 to 19 year-olds without remembering that if this issue is not addressed it will not be an option available to many people in rural areas. They are many villages, including my own, where one bus leaves in the morning and comes back in the afternoon. It does not dovetail with the institution's venues, nor with its starting times. We are talking about people moving about in mid-timetable, spending an afternoon here and a morning there, with one lesson here and another somewhere else. That issue cannot be ignored in consideration of provision for 14 to 19 year-olds. I have a great deal of sympathy with what the noble Baroness, Lady Sharp, said—and, indeed, with my noble friend, who wants to open up the issue to more innovation.
Lord Davies of Oldham: I agree with the noble Baroness, Lady Blatch, that the issue needs to be addressed and that it gains in complexity against the background of changing educational demands. However, the amendments are not the solution to what I acknowledge is a complex problem.
First, I shall address Amendment No. 347, moved by the noble Lord, Lord Lucas. Approximately 800,000 children each year benefit from free home-school transport provision. Its removal would hit many families hard. Secondary school children would be the hardest hit because, due to the statutory walking limits, they are currently more likely to be entitled to free home-school transport.
Provision of home-school transport has been around for a long time—nearly 60 years. It is an entitlement on which many parents rely in order to get their child to school. If there were no national minimum standards, parents across the country could be treated very differently from one authority area to another. While a low income family in one authority area may be granted subsidised or free transport to their nearest school, a family in a neighbouring authority area on the same income may not.
Straightforward removal of that important provision, as proposed in the amendment, would leave some disadvantaged families much worse off. Any proposal to effect improvement in that area of legislation will, as the noble Baroness, Lady Blatch, said, need careful consideration and the widest consultation so that we consider closely the implications of change on all children.
Restrictions on local authorities are not as intense as the noble Lord suggested. Some local authorities provide transport for children who live within walking distance. The children then have to pay, because the authority is under no obligation to provide free transport, but LEAs will sometimes provide a larger
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bus, aware of the fact that there is demand from children who want to cover a shorter distance who will pay to travel on the bus. So there is greater flexibility than the noble Lord suggested.
Turning to the issue of discipline that the noble Lord raised under Amendment No. 348, the case of Bradford-Smart v West Sussex County Council has already confirmed that in the context of the bullying of a pupil outside of school the head teacher may exercise his disciplinary powers against one pupil who attacks another. In the case, the Court of Appeal also considered that in certain limited circumstances a failure to exercise that power would be a breach of the school's duty of care to the other pupil. That suggests that in certain circumstances a court may be prepared to find that a school has a duty to take disciplinary action against pupils who misbehave outside school. That may extend to transport provided by the school or LEA.
The difficulty, of course, lies where the indiscipline occurs on public service transport over which the LEA or the school has no control. Unless particular factors exist that would make it reasonable and possible for the school to take disciplinary action, it falls to the bus or train operator concerned to deal with any disruptive behaviour. That may include ejecting a pupil during the course of a journey. It is difficult to see how the school would act in such circumstances. It would be unreasonable and impractical to impose a greater duty on schools, which would have no means of monitoring or enforcement.
Indiscipline of that sort outside school is primarily for parents to deal with. That is especially the case where the transport is not the responsibility of the school or the LEA. The amendment would place a duty on schools only in regard to discipline on transport, leaving every other form of indiscipline outside school not covered by the legislation. I hope the noble Lord will accept that, although it is an interesting probing amendment, it is not one that we can accept.
I thank the noble Baroness, Lady Sharp, for her contribution. She is right that we need to look at the question of the importance of effective transport support to pupils of compulsory school age and, in particular, the needs of those pupils and further education students who also need help. She will recognise, however, that children under the age of 16 are in the compulsory category and have different needs from those in further education. Older students attend FE on a voluntary basis. I agree with the noble Baroness that we should seek to increase that voluntary commitment and we want to give them every encouragement. She will know of the increasing resources being devoted by colleges to give support for transport.
The position for the post-compulsory group is different from that for younger children for the obvious reason that there is an obligation on the parents of those in the compulsory age group to ensure that their children attend school. If the difficulty is one of considerable distance and cost, it is only right to

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offer help to certain parents. Research shows that FE students use a range of different transport facilities that require different kinds of support. That is best determined locally and supported by the Learning and Skills Council, colleges and other institutions as well as LEAs.
Clause 192 and Schedule 19 are designed to ensure that these needs are effectively met for students of sixth form age in FE and for students of sixth form age in schools. Neither Schedule 19 nor the proposed amendment are compatible with, or appropriate to, support for pupils of compulsory school age, so we cannot put the two together in quite that way. Education institutions covered by the proposed amendment differ little from those already referred to in Section 509 of the Education Act 1996. In relation to the matters to which an LEA shall have regard, the 1996 Act already places a requirement on the LEA to make arrangements for the provision of suitable education for children of compulsory school age and the right of parents to express preferences for schools.
Such existing provisions alongside the duty on an LEA to provide free transport to a pupil attending his nearest suitable school which is more than two or three miles away make the proposed amendment unnecessary.
Amendment No. 379A would deprive the vast majority of students who are currently eligible for LEA transport of that entitlement. The amendment would repeal the whole of Section 509 of the 1996 Act. Section 509 places a duty on the LEA to make such arrangements as it considers necessary for the transport of a person of compulsory school age, in further or higher education or receiving education, or receiving education or training outside those sectors, to and from his place of learning. Schedule 19 complements Section 509, but makes provision only for a person of sixth form age who is receiving education or training—someone who is over compulsory school age but under 19. The amendment, taken on its own, would remove all legislative provision relating to transport for any person who did not fall under Schedule 19 to the Bill.
I think that the noble Baroness, Lady Sharp, will recognise that I share with her the concern that we should have to ensure that we build up a better provision of transport if we are to encourage students in their commitment to further education, especially those from more disadvantaged homes. Although the amendments are against a background of appropriate sentiments, they would not work effectively.
1 a.m.
Baroness Blatch: As a matter of interest, who is in loco parentis if a child of statutory school age boards a bus at school heading for home?
Lord Davies of Oldham: I must admit that that is a question to which I do not know the direct answer. Indeed, I am unlikely to receive immediate help from the Box on such indirect questions. Obviously, the
1316
judgment to which I referred indicated that the school would have some responsibility for the behaviour of children outside school premises. It is an important judgment, but it does not change the position that the school is primarily responsible in loco parentis while the children are on the premises and, of course, if they are off the premises in school buses, or other school transport, or if they are involved in school trips under supervision.
As I understand the position under the law, it is the parents who take responsibility—with certain particular exceptions—for any actions that a child carries out when he or she is outside the school gates or on public transport—
Baroness Blatch: I should like a proper answer to the question because it is pertinent to the issue of school bullying on a bus.
Lord Davies of Oldham: I recognise that the noble Baroness does not find my answer particularly satisfactory. I shall, therefore, write to her with the correct answer.
Baroness Sharp of Guildford: At this hour of the morning I should just thank the Minister for his response. I am sorry that Amendments Nos. 379A and 379B would be quite so sweeping in their effect. I had not appreciated that they were not quite appropriate. However, the present situation is unsatisfactory, and that applies also to Schedule 19 and the attendant clause in the Bill. It is not clear whose responsibility it is to provide such transport.
Colleges have been shelling out substantial funds, which are all too scarce, to meet this need. Young people will not be encouraged to stay on in education after the compulsory leaving age in such circumstances. The noble Lord, Lord Lucas, spoke about rural areas. I should point out that the cost of public transport these days, even within relatively urban areas, is substantial. For example, if one travels from one side of Guildford to the other in order to attend a college, it can easily cost £3 each way. That soon piles up each week to become a great deal of money.
At present, such costs are met in a very higgledy-piggledy way; but they are undoubtedly a disincentive to young people to attend courses. This is a very real problem, and one that needs to be considered more seriously than is the case with the Government at the moment. However, at this time of the morning I shall not pursue the matter further.
Lord Carter: Before the noble Lord decides what to do with his amendment, I should tell him that I was struck by his opening remarks as regards his difficulty in drafting the amendment. I remember experiencing similar problems during my 10 years on the Opposition Benches. I am reliably informed that if the noble Lord visits the Library of the House and consults Butterworths "Law Direct", he will find that most helpful. Alternatively, the noble Lord could speak to the ever-helpful staff in the Public Bill Office

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who will tell him exactly how to draft the amendment on the basis of the various amendments that have been made over time to successive Acts of Parliament.
Lord Lucas: Yes, that is a possibility. Unfortunately, I cannot bring such material with me into the Chamber to enable me to react appropriately to what the Minister may say in response to the amendment.
The Minister was given an extremely obtuse and unhelpful brief; indeed, it is by far the worst that I have listened to this evening. It almost deliberately set out not to address the questions addressed by the amendments. On those rare moments when the noble Lord allowed himself to ad lib, he talked the purest of sense. In his last answer to my noble friend Lady Blatch, it was clear that he understands what school transport means in Amendment No. 348: it means transport under the terms of Section 509 of the 1996 Act which is provided by the local authority—the school bus. The Minister's reply to me on that amendment was entirely concerned with what would happen on public transport, which is nothing to do with the amendment. It requires the most extraordinary twist of meaning to occupy the whole of the noble Lord's reply.
I am most disappointed with the Minister's brief. I shall not pursue Amendment No. 348. In his response to my noble friend Lady Blatch, the noble Lord almost implied that he understood that behaviour on school buses was the responsibility of the school. If that is the case, I am happy with the position. Indeed, he could have given me a very short answer just to say, "Yes, it is already there in the statute book". I should have been very happy with that. Having received two opposite answers from the noble Lord this evening, I shall resist the chance to pursue the matter. However, if the noble Lord can decide which of the two is the truth, I shall be delighted.
The Minister failed to answer my questions on Amendment No. 347. My principal question was whether the powers under Clause 2 would allow such an amendment to this part of the Education Act 1996; in other words, can a local authority come to the Department for Education and Skills and discuss how this part of the 1996 Act might be adapted to allow it to produce an innovative scheme on local transport? I would he grateful for an answer before I withdraw the amendment.
Lord Davies of Oldham: I regret that the noble Lord does not find my answers on his amendments sufficient. Those are the answers I am able to give him this evening. If he wishes to be in correspondence with me before Report, I shall seek to give him further answers.
Lord Lucas: I would like an answer to that question in time for Report. It should not be beyond the department, given a few days in which to think about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 192 agreed to.
[Amendments Nos. 348 and 348A not moved.]
Schedule 19 [Transport for persons over compulsory school age]:
Baroness Darcy de Knaythmoved Amendment No. 349:
Page 181, line 3, at end insert "and disabled persons and persons with learning difficulties of all ages".
The noble Baroness said: In moving the amendment I shall speak also to Amendments Nos. 351, 353, 355 and 357, all of which would extend the new improved transport provision in Schedule 19 for people of sixth form age to disabled people up to the age of 25 and preferably beyond.
Schedule 19 is most welcome for its increased transport provision and for the new requirement on LEAs to produce transparent and full policy statements on their transport provision, including arrangements for persons of sixth form age and disabled persons. I understand that guidance notes for the Act are to state that cost and availability will not be valid reasons to deny transport. Perhaps the Minister could confirm that.
I should declare that I am president of SKILL—the National Bureau for Students with Disabilities. It warmly welcomes the measures but feels that the clauses do not go far enough. It is continually hearing of disabled people of 19 and over—those beyond sixth form age—who are denied access to further education because of the lack of appropriate transport or funding for transport.
That is an issue for all disabled adults, but above all for young disabled adults up to the age of 25 whose education has been slower for one reason or another. For example, many young people with severe and complex learning difficulties stay at school until they are 19. Some of them are then unable to access further education because they are too old to receive LEA-funded transport.
I have findings from two three-year research projects managed by SKILL. The first, in conjunction with Cambridge University, is looking at needs of adults with profound and complex learning difficulties. The second, funded by the Diana Princess of Wales Memorial Fund, is looking at the needs of young people from a south Asian background with learning difficulties. Both projects show the urgent need for appropriate transport provision for both those groups of learners.
Adults with profound and complex learning difficulties are completely unable to access public transport. Those from a south Asian background have expressed over and over again that the main barrier to their going to classes is a fear of travelling independently. Their parents have reiterated those fears. That is particularly true for young Asian females with learning difficulties. Both groups of learners are significantly under-represented in further education. SKILL's research has shown that representation will not increase unless transport for people with learning difficulties is substantially improved. Delivery needs to be flexible, imaginative and centred on the needs of learners.

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In a sense this is a probing amendment because I have a nasty feeling it is in the wrong place, but it is serious in its intent. Therefore, I hope the Minister will give an encouraging response on how the Government may be able to make FE a reality for those groups of people. I beg to move.
1.15 a.m.
Lord Davies of Oldham: I begin by thanking the noble Baroness, Lady Darcy de Knayth, for sharing her keen interest in the area and raising these important issues in relation to disabled people and people with learning difficulties. We share her concerns but we do not see the current legislation as the appropriate vehicle for addressing it. Clause 192 and Schedule 19 are designed specifically for improving transport arrangements for students of 16 to 19 and students continuing courses started at these ages. The clause and schedule make provision for students with disabilities and learning difficulties.
The reasons for not extending the coverage to adult students are that learning opportunities for students of 19 or over, and the support that learners need to enable them to access and complete their learning, are normally provided by colleges and other further education providers who are more likely to receive their funding from the Learning and Skills Council for England or the National Council for Education and Training for Wales, rather than from LEAs.
Existing legal requirements through Section 13 of the Learning and Skills Act, provide that the LSC must have regard to the needs of people with learning difficulties, which includes people with disabilities which hinders the use of the education or training facilities generally provided. Similar provisions apply in Wales. We have formally asked the LSE to review its guidance and to ensure that it continues to work with providers and all other relevant agencies—including LEAs, LAs, the Department of Health and social services departments—so that effective support is available to students with learning difficulties and/or disabilities.
In addition, the Special Educational Needs and Disability Act 2001 requires that responsible bodies—that is, educational establishments—must not treat a disabled person less favourably than others for reasons related to his or her disability. Responsible bodies will be required by law to make reasonable adjustments to ensure that a disabled student is not placed at a substantial disadvantage.
The department provides the LSC with learner support funding and requires that this is made available to students, and in particular those with disabilities and learning difficulties, so that they can access and complete their learning. Over the past five years, the funds have risen from £6 million per annum for students of all ages to £51 million for students of 16 to 19 years and £67 million for students who are over 19. Even allowing for transfers of discretionary support from the LEAs to colleges, that amounts to an eight-fold increase in support.
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The guidance for priorities for funding under these arrangements makes students with disabilities and learning difficulties a priority for support. We know that the funds are effective in practice as the on-going evaluation of the funds by the Institute of Employment Studies finds that they have a disproportionate impact on these students.
The combination of the SEND Act and the provision of learner support funding should therefore ensure that all learning providers make adequate and effective support for these students, regardless of their age.
Arrangements for supporting adults in further education, including transport arrangements for students with disabilities and learning difficulties of all ages are currently under review. The review will consider, among other things, the need for financial resources to support adult students with disabilities and in particular their transport needs. We are looking forward to the findings and recommendations of the review and we will consider the need for any further improvements in the light of findings, recommendations and budget constraints. We will ensure that those representing sector interests are included in the consultations for this.
I hope that I have explained why we do not believe that this legislation, and therefore the amendment, is the appropriate vehicle for enhancing the opportunities of the group of students about whom the noble Baroness has spoken so enthusiastically and effectively today. However, I assure her that we are keeping the situation under review with the intention of producing proposals for more effective support for the students, which I know she holds dear to her heart.
Baroness Blatch: If the Minister is arguing, as he seems to be doing, that the only problem is that Bill is not the vehicle for such a provision, then he has not spelt out what the vehicle is for achieving the aims of the amendment.
Secondly, as a reason for rejecting the amendment the noble Lord cited the fact that post-19 young people go to different educational institutions and that it would therefore be a matter for the colleges. But this part of the schedule refers to a statement of the transport needs of such young people up to age 19. Therefore, including a reference to those aged 20 to 25 would not seem to present many problems.
Where the funding falls is a separate issue—whether it falls with sixth form colleges or further education colleges is a secondary issue. If the noble Lord is saying that he is supportive of what the amendment is trying to achieve but that this is not the appropriate vehicle, it would be helpful, first, if he were to say what is the appropriate vehicle—then the noble Baroness, Lady Darcy de Knayth, could attend to that on Report. In addition, it is a fallacious argument to say that the fact that post-19 students are scattered among the

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institutions is a reason for not stipulating this in the statement that would be prepared by either the LEA or the local learning and skills council.
Lord Davies of Oldham: I sought to identify, as is my obligation, why the Government cannot accept the amendment in this piece of legislation. I also indicated in the most positive terms the fact that the Government shared the concern expressed by the noble Baroness, Lady Darcy de Knayth, about support for students with disabilities and learning needs, and that we are in the process of carrying out a review of those provisions with the possibility of an enhancement of the position.
The noble Baroness, Lady Blatch, is absolutely right. The issue comes down to funding heads, and that must be taken into account by the Government. We are consulting on the best ways in which we can effect this. I cannot identify the piece of legislation to which the noble Baroness should address her mind at this point. It would be inappropriate for me to do so. I am seeking to assure her that she and the groups of people whom she represents will be in the position of being consulted on how we can enhance provision under the auspices of the review.
Baroness Darcy de Knayth: First, I should like to thank the noble Baroness, Lady Blatch, for her intervention. It was very helpful. She has a huge and detailed knowledge of this area. I also thank the Minister. At first, I thought that we were not getting anywhere. I thank him in regard to all the help that is available, but I felt that we had not progressed very far with the real issue in the amendment. Then, his mention of the review sent my spirits rising. I hope that we shall get somewhere. Making courses and buildings accessible is all for nothing if disabled people and people with learning difficulties cannot get to the classes. I shall go back to SKILL and then consult with him. Perhaps we can have some talks outwith the Chamber about what is the best piece of legislation in which to address this issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 350 to 358 not moved.]
Schedule 19 agreed to.
Clause 193 [Remission of charges relating to residential trips]:
Lord Lucasmoved Amendment No. 359:
Page 117, leave out lines 25 to 32 and insert "of a prescribed class"
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 360. These amendments are intended to be entirely helpful. This is information which should be in secondary, not primary legislation. I beg to move.
Lord Davies of Oldham: Appropriately, I shall be brief, but I shall take a little longer than the noble Lord—if only to thank him for his attempts to improve the flexibility of the legislation. I appreciate the sentiments behind the amendments.
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We have considered this possibility very carefully. However, the adult allowances in income support and income-based jobseeker's allowance are fundamental qualifying benefits. There is no need to have the flexibility to change them. We are unlikely ever to want to take away entitlement to remission of charges or free school meals from families in receipt of these benefits. Should there ever be a change to the benefits system affecting these benefits, then the primary legislation amending that would consequentially change this. Additionally, the Bill also creates flexibility in allowing the Secretary of State to be able to prescribe in regulations additional qualifying criteria, and this is likely to be sufficient to enable us to respond to the foreseeable changes to the welfare system.
I very much appreciate the intentions of the noble Lord, Lord Lucas. However, on the basis of the arguments that I have put forward, I hope he will recognise that we are confident that the way in which these benefits are dealt with will guarantee that there will be only improvement and not deterioration in the position.
Lord Lucas: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 193 agreed to.
Clause 194 [LEA functions concerning school lunches, milk etc]:
[Amendment No. 360 not moved.]
Clause 194 agreed to.
[Amendment No. 361 not moved.]
Baroness Blatchmoved Amendment No. 361A:
After Clause 194, insert the following new clause—
"Drugs and alcohol policies

DRUGS AND ALCOHOL POLICIES
(1) The governors of every maintained and independent school shall determine the drugs and alcohol policy for that school.
(2) A school's drugs and alcohol provision shall provide that where a head teacher takes disciplinary action against a pupil under the terms of his school's drugs and alcohol policy, the parent of the pupil concerned may appeal to that school's governing body.
(3) No appeal shall lie under subsection (3) save on procedural grounds.
(4) On such an appeal, the governing body may—

(a) confirm the head teacher's action, or

(b) 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).
(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: These days schools are receiving mixed messages from the Government about drugs and alcohol abuse. There is a relaxation of some drugs laws, relaxation of enforcement in some areas and downgrading of some drugs, but at the same time there is a wringing of hands over the incidence of drug taking and alcohol abuse among young people. It is a fact that drugs are now much cheaper and increasingly

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within the financial reach of many young people. My amendment seeks to support schools that in concert with parents determine policies on drugs and alcohol abuse, and where action is taken against a pupil who is in breach of the school's policy.
All too often, the head teacher is undermined by an appeals panel which reinstates an excluded pupil by second guessing the merits of the decision and not confining itself to procedural matters. Procedural matters are important, and I believe that the case should be reconsidered on that basis if necessary. When a case is found wanting on procedural grounds, rather than exonerating a pupil, the head teacher must reconsider the case properly using the procedural rules that apply.
I hope that the Minister will agree that nothing is more dispiriting for a head teacher who is fighting, with parents, against drug and alcohol abuse among school pupils than for his decision to be undermined by an appeals panel which requires reinstatement when there has simply been a technical hitch in reaching the decision. I think that this issue should be addressed, and I beg to move.
Baroness Finlay of Llandaff: I support the amendment because there is such a problem with discipline in schools and it is often so difficult to identify the pupil who is supplying drugs to other pupils. Although the exclusion of such pupils is often based on a high index of suspicion, it is extremely hard to produce definitive proof. I feel quite strongly that the headmistress or headmaster deserves support.
Baroness Ashton of Upholland: I think that all noble Lords agree on a desire to support head teachers who are dealing with these very difficult problems. I therefore agree with the intentions behind Amendment No. 361A. I believe, however, that drug and alcohol issues can be, and are best dealt with under the existing legal principles plus specialist guidance. Section 61 of the Schools Standards and Framework Act 1998 places a duty on school governing bodies to ensure that there are policies to promote good behaviour and discipline, of which drug and alcohol policies are clearly a part. Existing departmental guidance—"Drug Prevention and Schools"—already advises that all schools should have drug and alcohol policies, and evidence from Ofsted confirms that schools are complying. Beyond that, the standard of discipline and disciplinary measures are otherwise determined by the head teacher acting in accordance with the governing body's policies. We believe that this is the right approach.
The existing provisions for exclusion and exclusions appeals panels are also perfectly satisfactory to address these issues. However, I shall, of course, pick up the noble Baroness's point in a moment.
The noble Baroness's amendment, were it carried, would place additional burdens on schools' governing bodies by insisting that they review all disciplinary cases involving drugs and alcohol. As the Committee will be aware, currently discipline committees should
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review the use of exclusions within school, and decide whether or not to confirm exclusions of more than five school days or where a pupil would miss an opportunity to take a public examination. Under proposals elsewhere in Clause 49 of the Bill it is proposed to extend this five day period to 15 to cut the burden on governing bodies.
The noble Baroness's amendment would create enhanced rights of appeal to particular categories of pupils in breach of a school's behaviour and discipline policies. I do not support that. I do not think that pupils disciplined for drugs and alcohol offences should have greater rights than those disciplined for other reasons; for example, for violent behaviour.
I should though like to assure the Committee that we are taking a hard line on the issue of drugs dealing in school. Decisions on whether to exclude pupils are the responsibility of head teachers. Where a child is permanently excluded for dealing in drugs, for example, we fully support that head teacher's decision and would not expect an independent appeals panel to reinstate that child. That is what our revised guidance on exclusions says.
In addition, we are making sure that an appeals panel cannot reinstate on technical grounds. Within our guidance we look to ensure that the appeals panel would rehear the case and would not look at the issues in terms of a technical difficulty as regards the way in which the school handled it. We believe that those two measures of being supportive of head teachers on the basis of exclusion for drug dealing and making sure that technical hitches are not the reason for it are important.
We have also wanted to take a number of other steps. We are providing training for all new teachers in drugs education by September 2002. We are introducing new powers for Ofsted which will be tasked formally to assess the standard of drugs education in secondary schools. We are providing support for teachers with practical guidance and a new website for teachers to be launched in the summer. We are taking a new look at how different tactics, including shock tactics, on drugs can be effectively used when targeting certain age groups and within the wider educational framework. We are discussing with the Home Office new measures to tackle drug dealing in the vicinity of schools and which is targeted at young people of school age. We are producing new guidance for parents with emphasis on supporting head teachers in behaviour and drugs policies for young people of school age. Alcohol education will be given a higher priority, tackling the issue of under-age drinking which can often contribute to anti-social behaviour.
I hope that on the basis of all that I have said and the assurances I have given the noble Baroness will feel able to withdraw her amendment.
1.30 a.m.
Baroness Blatch: The noble Baroness started by saying that she was concerned about additional burdens on appeals panels as they would have to reconsider so many cases. However, the only cases that

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I envisage they would have to reconsider under my amendment would be those where a decision was taken that was contrary to that taken by the head teacher. The noble Baroness was concerned about a level playing field and thought that somehow or other I had singled out drugs and alcohol abuse and ignored violence. I should like to include violence. Teachers are battling against all the odds. Head teachers are fighting in concert with parents against drugs, alcohol abuse, violence among pupils and even violence among parents. I should be happy to include the full range of abuses that can take place. I refer to a situation where all the action that a head teacher has to take preceding an exclusion has failed, he or she takes a decision to exclude and that decision is reversed by an appeals panel.
The noble Baroness made a further point which, frankly, I do not accept. She said that the Government would not expect an appeals panel to take a contrary view. I am sorry but appeals panels do take contrary views. Often a head teacher is undermined and his or her authority is damaged by that. Such a head teacher feels that he or she is trying to fight against the odds but some streetwise young people are returned to the school and make life absolute hell.
We shall have to return to this matter. The noble Baroness's response missed the point that I made. I shall withdraw the amendment now but I shall return to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 195 agreed to.
Clause 196 agreed to.
Clause 197 [Baseline assessments]:
On Question, Whether Clause 197 shall stand part of the Bill?
Lord Lucas: Why?
Baroness Ashton of Upholland: That is a very straightforward question at this hour. We are removing the statutory duty on schools to carry out baseline assessments of children. Baseline assessment will be replaced with the foundation stage profile in the academic year 2002–03. Members of the Committee will be aware that we introduced the foundation stage in September 2000. It defines centrally for the first time that critical period of a child's development from the time when they enter education at three-plus until the end of the reception year.
Under the current system, 90 separate baseline assessment schemes are used in schools. The QCA consulted early years practitioners and experts between November 2000 and January 2001 on replacement arrangements for baseline assessment. That consultation showed strong support for the introduction of a single national scheme to sum up progress at the end of the foundation stage, which is the point at which children are expected to achieve early learning goals.
It is because the purpose and the timing of the assessment will shift from a diagnostic "on entry" assessment to an "end of foundation stage" assessment
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that the name of the assessment has been changed to "foundation stage profile". That provides a fixed reference point for all children at the relevant stage of their education whether in maintained primary schools or other settings. I assure noble Lords that it will be completed over a period during day-to-day classroom activity and it will involve the observation of teachers and practitioners. It will not therefore be a test that children pass or fail. Because the profile will be completed at the end of the foundation stage, children will be assessed by someone who has got to know them well and in a variety of circumstances, thus providing a truer picture of what they can do.
Also, because the assessment will be based on observations accumulated over a period of time, it should be less burdensome than the administration of baseline assessment, which has to be completed within seven weeks of a child starting school. After completion of the first trial of the foundation stage, involving 500 children in November 2001, 103 reception teachers returned completed questionnaires in which they recorded timings and rated various aspects of the profile. That showed that 94 per cent of teachers rated manageability as "satisfactory" or better. The majority of the teachers also considered that the proposed scheme would be an effective summary of their children's achievements at the end of the foundation stage.
The foundation stage profile will provide substantial evaluative information about each child that will be passed on to year one teachers and parents. Ninety per cent of teachers rated the scheme as either "helpful" or "very helpful" in providing information on a child to other members of staff, parents and year one teachers. The signs are that the profile will be warmly received by the early years sector and I therefore recommend that this clause should stand part of the Bill.
Lord Lucas: I am very grateful for that explanation. Am I right in thinking that the assessments will not be published but that they will form the basis for the key stage one "value added" in the primary schools to which children go on? Am I also right in thinking that they will not pay any particular attention to looking for the first signs of special educational needs, such as dyslexia, which, in severe cases, may be showing at that age? If I am right, why not?
Baroness Ashton of Upholland: The information will be collected but not published. The value of it is to allow year one teachers to look at where children will go. It will play its part, I trust, in the early identification of children who have difficulties. As the noble Lord will I am sure agree, it is very important that children who have special educational needs are identified as early as possible. I hope that the profile will play its part in that.
Lord Lucas: I have had good answers to two of the three questions I asked. The third was: will the

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assessment form the baseline for "value added" in key stage one in primary schools, or will there have to be another measure for that?
Baroness Ashton of Upholland: I am sorry if I was not clear. Yes, it will indeed form that.
Clause 197 agreed to.
Clauses 198 and 199 agreed to.
Schedule 20 agreed to.
Clause 200 agreed to.
Clause 201 [Recoupment: special cases]:
Baroness Farrington of Ribbletonmoved Amendment No. 362:
Page 122, line 40, leave out subsection (3) and insert—
"(3) The function mentioned in subsection (2) is to be treated as having been transferred to the National Assembly for Wales by an Order in Council under section 22 of the Government of Wales Act 1998 (c. 38); and, accordingly, the transfer may be revoked or varied by an Order in Council under that section."
The noble Baroness said: In moving Amendment No. 362, I shall speak also to government Amendment No. 366. For the benefit of the Committee, it may be helpful if I indicate the Government's view of the other amendments in the group, Amendments Nos. 367, 367A and 367B.
Government Amendment No. 362 concerns Clause 201. Section 494 of the Education Act 1996 enables regulations to be made to govern the transfer of funding where an excluded pupil moves to a new local education authority. Clause 201(2) transfers the regulation-making powers to the National Assembly for Wales where they relate to Wales. This amendment seeks to ensure that the making of such regulations is governed by the procedures of the National Assembly for Wales.
Government Amendment No. 366 is a technical amendment to a technical clause. It deals with the powers of the National Assembly for Wales to make subordinate legislation and provides that the new powers conferred by the Bill will be exercised in accordance with National Assembly procedures and will not be subject to UK parliamentary procedures. With those explanations, I trust that the Committee will agree to accept the amendments.
Amendment No. 267 in the name of the noble Lord, Lord Roberts of Conwy, proposes to leave out subsection (4)—
Baroness Blatch: Perhaps I may help the noble Baroness in relation to this amendment. Had he been here, my noble friend would have said that he would not press this amendment or even speak to it because it has been subsumed in other amendments. Therefore, the noble Baroness is relieved from the fag of having to address it.
Baroness Farrington of Ribbleton: I am extremely grateful to the noble Baroness, Lady Blatch.
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Perhaps I may pass on to the amendment in the name of the noble Baroness, Lady Finlay. I am grateful to her for raising this very important issue. I wrote to the noble Baroness on the matter and sent a copy of my letter to the noble Lords, Lord Roberts of Conwy and Lord Thomas of Gresford. In the letter, I indicated that I could happily give her my assurance, in the same way as I did during debate on a similar concern that she raised during the Committee stage of the National Health Service Reform and Health Care Professions Bill, that we intend to amend the Explanatory Notes accompanying the Bill, subject to the approval of Parliament, to include a table setting out the effects of the Bill in relation to Wales on a part-by-part basis.
I completely accept, as I did on a former occasion in relation to the National Health Service Reform and Health Care Professions Bill, that the noble Baroness has raised an extremely important point. I am happy to reassure her that the Government will be able to meet her concerns in the way that I have explained. I beg to move.
Baroness Finlay of Llandaff: I am most grateful to the noble Baroness, Lady Farrington, for having written to me and for her kind words at this late hour. I am also extremely grateful that my suggestion has been taken up by the Government. I have already received feedback that that has caused delight to people in Wales. Therefore, I shall not be moving my amendment.
On Question, amendment agreed to.
Clause 201, as amended, agreed to.
Clause 202 agreed to.
Lord Lucas Lord Lucas moved Amendment No. 363:
After Clause 202, insert the following new clause—

PUBLICATION OF STATISTICS
After section 496 of the Education Act 1996 (c. 56) there is inserted—

496A PUBLICATION OF STATISTICS
The Secretary of State may publish such statistics as she deems appropriate to inform the general public of the progress made by any element or elements of the statutory system of education, and shall ensure that, as far as reasonably practicable, such statistics are provided on the same basis in every year and that when changes are made in the basis of calculation, restated statistics are provided for the previous three years.""
The noble Lord said: As a user of statistics in this House to help to hold the Government to account, and as a republisher of many government statistics in the course of my business for the Good Schools Guide, I have a great interest in the quality of the statistics which come from government. The amendment is in large measure unnecessary because the Secretary of State already has the power to publish statistics. I am seeking to impose that, when the Secretary of State changes the basis of calculations, restated statistics for previous years are provided where it is sensible and possible to do so.
A cause of immediate irritation to me are the changes made last year to the ways in which A-level performance tables and figures for 16 to 18 year-olds

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were presented. When that was done in Scotland, a three-year history was produced to provide a time series. In England, we had a change of basis but no time series. Time series are particularly crucial in respect of performance tables. A single year's figures tell one a great deal less than a three or five-year series—which will give a picture of consistency or progress. At any rate, a series provides much more data than one can obtain from one year's statistics—which may be considerably biased in one direction or another in relation to a school's average performance.
It is important to my business that the figures are right and that every other user can see how the statistics vary from year to year. Government should care about producing statistics that are usable by the public. I am sure that the Minister knows of other examples where the basis of statistics has been changed and the figures have not been restated. That is a bad principle because statistics become useless. Sometimes changes are necessary for political purposes—both parties have done that with unemployment figures as a necessary way of disguising bad news. Performance statistics are not a political plaything and government should take responsibility for providing quality information. I beg to move.
1.45 a.m.
Baroness Blatch: Historical information and the reporting of trends is important, so that parents can make judgments about their children, the classes and schools that their children attend and even educational progress within the area in which they live. The information in question is for parents with a lay understanding of educational jargon and could be improved.
Baroness Sharp of Guildford: I too support the amendment. Coherent sets of statistics running over time are extremely important.
Lord Davies of Oldham: I am one of those people who wince at the word "statistics", not least because one of my notable failures was not completing a university course in statistics. I was overtaken by a statistic that counted—I got more votes than someone else in a general election, so I left the course. That left me bereft of the ability to analyse statistics, which I have never been able to make up. I will therefore confine my contribution to the argument made by the noble Lord, Lord Lucas, and supported by the noble Baronesses.
I accept entirely that public information belongs to the nation and that government must provide the best and clearest information that they can. The Secretary of State shares the desire to see an unbroken statistical time series on education, and endeavours, where possible, to provide consistent information. The new national statistics code of practice requires all national statistics products to produce bridging tables for breaks in time series and recasts of prior years' figures where possible. The intention is that the code will cover not just the Department for Education and Skills but all government statistics. We are at one in terms of objectives.
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The noble Lord is particularly interested in information published in our annual schools performance tables. I reassure him that we shall make every effort to keep changes in the calculation of performance indicators to an absolute minimum.
I hesitate, however, to accept the amendment. There is a necessity to reserve some flexibility to respond quickly to concerns about particular circumstances that might damage an institution's credibility in what are high-profile publications. Given that the tables are based on individual pupil information, a recast of earlier years' results will not always be a reasonable proposition.
When using new information, the collection of data from schools on pupils in the same circumstances over the previous three years would be hugely burdensome and impracticable, as the noble Lord will recognise. For example, in order to reflect the success of the Qualifying for Success reforms, last year's performance tables reported the advanced level results for students at the end of two years of post-16 education. To enable that, schools and colleges had to tell us who the students were. It would not have been reasonable to ask them to identify the equivalent group of students over the previous three years. The noble Lord will recognise that difficulty. However, wherever changes are made to the presentation of information, we will endeavour to provide recasts whenever it is practical to do so without overburdening schools.
I hope that, on the basis of those assurances, the noble Lord will feel able to withdraw the amendment.
Lord Lucas: I shall certainly withdraw the amendment. The department has all that pupil-level data in its computers. It would not be that difficult for it to regurgitate the information in a different form. It had the entire A-level and GCSE database by pupil many years ago. I remember having access to that and playing around with it on my computer to examine the way in which some exams were harder than others. Doubtless, Ministers play with it similarly in their many peaceful hours in their offices in the department.
It is not that difficult to produce back figures, if the information has been collected. The department has been assiduous over many years in collecting information. I can understand that, with the changes made last year, there may have been some difficulty in going back. However, for the benefit of new policy, I hope that it will be possible to have the quality of information to enable the time series to be recast.
I do not like the idea that statistics cannot be changed. One must keep changing the basis of statistics—first, because there are always better ways of doing things and, secondly, because, if a statistic is left static for too long, the whole school system will be biased towards that statistic. We must keep things moving and keep the basis on which we measure schools changing, so that we are measuring the real school and not just results produced for the purpose of the statistic. To do that and still produce useful time series, we must have enough data to recast at least the

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previous two years' information in the form in which it has been produced for the current year. That is a basic requirement for the collection of statistics, and I hope that we shall see that in future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Finlay of Llandaffmoved Amendment No. 363ZA:
After Clause 202, insert the following new clause—

ACCESS BY PUPILS TO THE TEACHING AND FACILITIES OF ANOTHER SCHOOL
Each local education authority may make arrangements for pupils with specific educational requirements which can not be met at their own school to have access to any appropriate teaching and facilities available at other maintained and independent schools within the authority's area."
The noble Baroness said: This is a probing amendment, designed to explore the relationship between the private and maintained sectors. The cessation of assisted places has meant that some gifted and able children have not been able to access some of the superb resources in the private sector. I declare an interest as a member of the governing body of Howell's School, Llandaff, and patron of the Minerva appeal of the Girls' Day School Trust, which funds the education of children from disadvantaged backgrounds. Approximately, 20 per cent of the GDST pupils receive financial help through bursaries and scholarships.
There are gifted and able children in many maintained schools whose educational development could benefit from the use of resources other than those that their schools can provide Some schools have better science laboratories, music facilities, sports facilities and so on. For example, some of the GDST schools participate in schemes such as the Liverpool Excellence in Cities initiative. Other examples are science seminars open to children from local comprehensive schools or children invited in to practise for Oxbridge interviews, so actively using the teaching expertise and the resources in those schools.
However, it is important to remember that sometimes the better resources reside in the maintained sector. Examples include information technology, language and arts teaching. It may be appropriate for a child whose parents pay fees for the bulk of his or her education to be able to move across to the maintained sector for some lessons, particularly at advanced stages of his or her schooling. In my own school zoology A-level was not an option so I went to the local secondary modern school to take it. My education benefited from taking my A-levels in three different schools rather than just one.
I want to probe whether that inter-relationship and the commitment that has been shown in earlier discussions on the Bill to public/private partnerships is being supported within the context of this Bill. I should be grateful if the Minister could explain whether such
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flexibility will be possible to ensure that each child can meet his or her educational needs and hence his or her full potential. I beg to move.
Baroness Howe of Idlicote: As my noble friend Lady Finlay said, Amendment No. 363ZA was designed as a probing amendment. I hope that it will give the Minister the opportunity to say how the Government see the role of the independent sector in helping government to achieve their educational objectives once this Bill has become law. Although sadly I have not been able to be present on every occasion when this Bill has been debated, I have read Hansard fairly assiduously. With the exception of nursery school provision, I do not remember seeing any reference to the role of educational public/private partnerships in helping to deliver government policy objectives. However, as the Minister will know, in almost all other areas of government policy, such partnerships are given a high public profile indeed.
Educational partnerships are, of course, in existence and have been for many years, as my noble friend has indicated. I can remember the same kind of situation when I too was at school. I believe that as recently as 7th May the fifth round of the independent-state school partnership was announced, a £778,000 package. This round was being designed specifically to benefit gifted pupils, music and citizenship. As I believe Stephen Timms the Minister said, all projects so far funded have the common aim of benefiting pupils and staff in both independent and state schools. The aim is to break down barriers through that kind of a partnership.
Interestingly, in the light of the previous discussion on language teaching, I gather that one of the successful applicants was Monkseaton Language College, North Tyneside, in partnership with the Church High School, Newcastle-upon-Tyne and the Open University in the North. That project will create exceptional provision for gifted and talented pupils in modern foreign languages. It will provide university-level studies delivered by the OU in the north. A support system will also be created for extending provision of language learning to pupils in local Excellence in Cities schools.
As we have also heard from my noble friend, the Girls' Day School Trust is collaborating very actively in such partnerships with both primary and secondary maintained schools, sharing best practice and joint extra curricular activities. They have even developed long standing links with international schools. I believe that Notting Hill and Ealing High School are examples with a rural school in Tanzania. I hope that we can hear endorsement of these kinds of public-private partnerships and that they should continue to be mutually beneficial to both the maintained and the independent sector. I mention this because occasions will arise when the desired expertise or facilities which it is hoped will be shared will be provided by the maintained sector.
A current example where there are doubts as to whether the process will be truly beneficial to both sides is whether the remit of the new National

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Academy for Gifted and Talented Youth will include access for suitably qualified children from the independent as well as from the maintained sector.
It would be reassuring to everybody to have it confirmed that educational public-private partnership will continue and remain mutually advantageous, as my noble friend Lady Finlay has said, in meeting the needs and aspirations of individual young people and the Government's overall educational priorities.
2 a.m.
Baroness Blatch: I confess that I was remiss earlier when I did not thank the noble Baroness, Lady Finlay of Llandaff, for her support on the drugs amendment. I meant to do so, but I did not.
I support the amendment. It seems to me that for children with special educational needs the statement should include the appropriate provision to meet the needs of a pupil. But whether children have learning difficulties or children at the other end of the spectrum are highly academic, and everything in between, including those with physical needs, appropriate education should be made available. There are many young people who fall short of the criteria for having a statement of special educational needs. For them it is sometimes the case that the host school cannot always meet their needs. Therefore, this amendment would provide for transferring to a school where the needs of the young person can be met. It must be the ambition of all of us to see that the particular educational provision for any child, whether of high ability or otherwise, suffices.
The Minister will not be surprised to hear me supporting this amendment. It would provide a real opportunity for bright young people from low income families to have an education which, according to the amendment, cannot be provided in the host school. It is only under those circumstances that this amendment kicks in. The direct grant and the assisted places schemes both addressed the particular needs of bright young people from low income families.
It needs to be said that the Girls' Day School Trust and many of the schools which benefited from the direct grant system became independent at the time and that was phased out. That incredible tradition has continued of going out of their way to raise money to help young people from low income families. If' this amendment were on the face of the Bill it would go a very long way to making sure that the educational needs of all children, whatever their abilities, will be properly met. I warmly support the amendment.
Lord Lucas: I add my voice to my noble friend's support of the amendment of the noble Baroness, Lady Finlay. I still cherish hopes that one day the Labour Government will return to a little unfinished business from the 1945 government; that is, ending the divide between state and private education in this country. It was a missed opportunity then. The Government again missed the opportunity because they chose to destroy the assisted places scheme rather than turn it into something which might have worked.
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I would be quite radical and probably horrify my noble friend Lady Blatch by what I would do. I would put VAT on all independent school fees. I would use the money raised to give parents who sent their children to independent schools the right to take with them the funding that they would have had for that child in a state school. I think that the two would reasonably well balance each other.
I would make sure that the moneys that independent schools' charitable status gained were devoted entirely to helping children who genuinely could not afford independent education to get it, rather than the rather inefficient and inaccurate methods that we had under the assisted places schemes. I would hope that that would allow a range of schools to grow up in the middle. It is certainly somewhere where the likes of Manchester Grammar School would move, and maybe the GDST would too, and genuinely look at how they could take pupils from the state system and provide a genuine addition to the state system with a smooth transition between the two forms of education providers.
I do not like the social ghetto which has been created in the private system. I do not think that it is a good idea, nor is it healthy for the nation. I should have thought that it was something that the Labour Party felt that it ought to find a way of ending. One day perhaps that thought will get just as dusty an answer as the amendment of the noble Baroness.
Lord Davies of Oldham: The noble Baroness, in introducing the amendment, indicated that it was a probing amendment giving the Government an opportunity to express their views on the developing partnership. I begin by assuring her that the reason why I shall be asking her to withdraw the amendment is simply that it is unnecessary. There is nothing in law to prevent local education authorities from making arrangements for children to make use of other educational facilities under existing legislation. It is already by no means unknown for pupils registered at one school, particularly sixth-form pupils, to attend another school in order, say, to take an A-level subject which is not available at their own school.
To facilitate such arrangements, we recently made regulations under Section 50(3)(b) of the School Standards and Framework Act which specifically authorise the use of a school's budget share to run provision made by the school for pupils registered at other maintained schools. That removes any barriers which might have been created by the rule that a school's budget share may be used only for the purposes of that school.
If an LEA wants to make arrangements for a pupil at a maintained school to receive education at an independent school, it has the general power to do so under Section 18 of the Education Act 1996. Provision already exists for pupils with special educational needs, to which some reference has been made in the short debate.
There is also nothing to prevent LEAs from making such arrangements now in respect of gifted and talented pupils who attend maintained schools in their

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area, provided that funding is agreed and that the receiving institutions are amenable. Although schools should be able to meet most of their younger pupils' educational needs, this kind of flexible approach may well be appropriate for a pupil who is exceptionally gifted or talented. Moreover, the Green Paper for 14 to 19 year-olds proposes similar arrangements for older pupils, enabling them to spend some of their time in FE institutions, for example. We are also fostering partnerships between maintained and independent schools through our independent-state school partnership scheme, which has been in place since 1997.
For those reasons, the amendment would not add value to the Bill. I hope that the noble Baronesses are reassured by my response and that the noble Baroness, Lady Finlay of Llandaff, will feel able to withdraw the amendment.
Baroness Blatch: Is the Minister actually saying that children can be selected on the basis of their ability, which may not be being met in a particular school, and transferred to an independent school where their needs can be met?
Lord Davies of Oldham: Yes, that is possible in law.
Baroness Howe of Idlicote: Perhaps I may press the Minister slightly more on the issue of how valuable the Government consider those partnerships to be in pursuit of their educational objectives. It has surprised me how little attention has been given to this whole area. I realise that the amendment refers to one aspect and one group of gifted children, but it would be reassuring to many people to know that such partnerships are in a broader sense part of government policy.
Lord Davies of Oldham: As I said, we have recently taken steps to provide for schools to be able to use their budgets in that way. But in the oldest phrase, it takes two to tango and it takes two to form a partnership between state and independent sectors. That requires initiative on the part of the schools concerned. The noble Baroness will recognise that it may not be the highest priority for schools to act in that way. However, the legislation certainly permits it.
Baroness Finlay of Llandaff: I thank the Minister for his reply and the noble Baroness, Lady Blatch, for her support for the amendment and for her comments and questions. As she pointed out, a highly gifted child may need as specialised a provision as a child with learning difficulties. I am also grateful to the noble Lord, Lord Lucas, for his support for the amendment.
As my noble friend Lady Howe pointed out, a child in the private sector may be able to benefit from the new and imaginative academic provisions that exist in the maintained sector. I was relieved to hear from the Minister that such arrangements are already possible and will remain possible under the Bill. I was pleased to hear that the facilitation arrangements can already
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occur to authorise a school budget to be shared across the maintained school sector and into the independent school sector.
As the Minister rightly said, it takes two to tango. It may well be that such arrangements need to be slightly better publicised among some LEAs that have been resistant to any form of dialogue. Such dialogue would open up access to resources from which some highly gifted children may benefit enormously who will go on to contribute to the nation when they have completed their education. Given the welcome reassurances that I have heard from the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2.15 a.m.
Baroness Blatchmoved Amendment No. 363ZB
Before Clause 203, 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: Many attempts have been made as we have gone through the Bill to protect the interests of children with special educational needs. As each new power has unfolded—in particular the early clauses on innovation and autonomy—amendments have been tabled to guard against the exercise of those powers having an adverse effect on the education of children with SEN.
The Minister warmed to my suggestion earlier that one portmanteau amendment covering not only this Bill but other enactments would be a neater and more effective way of proceeding. The noble Baroness went as far as to say that the department was looking at the wording of an amendment. I know that the noble Lord, Lord Rix, and some of his colleagues are also looking at the wording, and other noble Lords are actively working on such an amendment.
This is my modest attempt at getting where we want to be. It is the simplest way and I must thank the Public Bill Office. It achieves what we want it to achieve, which is that
"Nothing shall be done under the Act to the disadvantage of any provision in respect of special educational needs under this or any other enactment".
It is very straightforward and simple. It would be a test that if a power were exercised under this Bill and it had the effect of disadvantaging the special educational needs of other children, it would be in breach of the Act. It need not be complicated and we do not need to spend too much time on it. It would be too overwhelming at this time of the morning to hear the Ministers say that it is perfect in every way. I hope that she will look on it favourably. I beg to move.
Baroness Ashton of Upholland: Following the previous intervention of the noble Baroness, Lady Blatch, she is right to say that we have been looking at the issue. There is a commitment on the part of the

1337
Government to protect all children, but especially those who are most vulnerable, including children with special educational needs.
We have given a commitment to explore the matter fully. I want to have discussions with noble Lords who are interested in the matter, and I hope that the noble Baroness, Lady Blatch, can also find time for this crucial discussion. She will not be surprised when I say how difficult it is to address the issue of special educational needs in a general statement applying to the whole Bill. There are real problems on how to produce such a framework without laying ourselves open to a whole range of potential difficulties, not least that of judicial review in respect of the operation of such a measure.
We have been working very hard on this, including discussions with parliamentary counsel and we are still in debate about the best way forward. I hope that that debate may be better informed by further discussions with many of the noble Lords who have spoken and who have such expertise to bring to bear.
As the noble Baroness, Lady Blatch, said, in previous discussions, the noble Lord, Lord Rix, referred to a proposed amendment from Mencap which would address the issue of children with SEN. Mencap pointed out the serious difficulties that a portmanteau clause could cause, not least that it is not normal constitutional practice to have "trumping" clauses. Of course, the practical difficulties are clear, too. A clause such as that proposed in Amendment No. 363ZB throws into question whether it would ever be lawful to exclude a pupil with SEN.
The issue is difficult and I cannot give guarantees to the Committee, but I shall seek to find an appropriate way through. As I said, I would genuinely welcome discussions with noble Lords. I am very interested in finding a way forward. I want to consider that and other issues before the next stage of the Bill. It is difficult, but there is no lack of will from the Government. With those reassurances, I hope that the noble Baroness, Lady Blatch, will withdraw the amendment.
Baroness Blatch: I am sorry that there was not a more detailed description of what was wrong with the amendment. I understand the point on exclusions, but I am not so sure that we need waste time on discussions. The Minister may be able to bring forward a form of wording that suits parliamentary counsel and officials and Ministers in the department that achieves the ends, which are that nothing in the Bill should disadvantage children with special educational needs. In the exercise in innovation and autonomy it must be possible to exclude a child with SEN. I accept that if the conditions are right and meet the criteria for exclusion.
The Minister knows what we mean and just talking about the issue will not bring it further forward. It is important that parliamentary counsel with all their expertise should find the right form of words for what is the lay explanation. We have set it out on the record
1338
a number of times and our time would be used more wisely if the department were to get on and produce an amendment for the Report stage.
If such an amendment achieves my aims and those of the noble Lord, Lord. Rix, and others, who are concerned that children should not be disadvantaged as a result of what is an innovative Bill, it will have my full backing. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 203 [Orders and regulations]:
[Amendment No. 363A had been withdrawn from the Marshalled List.]
Lord Lucasmoved Amendment No. 364:
Page 123, line 20, at end insert—
"() section 49(3),"
The noble Lord said: The purpose of the amendment is to make regulations under Clause 49(3) subject to the affirmative resolution rather than the negative resolution procedure in this Chamber. I beg to move.
Lord Davies of Oldham: I rise to speak to government Amendments Nos. 365 and 379, and to respond to the noble Lord, Lord Lucas, on his Amendment No. 364. One of the benefits of moving legislation into regulations is to give greater flexibility to respond to circumstances and to make changes to the rules when circumstances dictate. That is why the regulations under Clause 49 are subject to the negative resolution procedure. We should lose some flexibility if they were to be subject to the affirmative resolution procedure.
The Delegated Powers and Regulatory Reform Committee has looked closely at all regulation-making powers in the Bill. It raised no concern about Clause 49(3). I hope that Members of the Committee will not wish to question that judgment.
On Amendment No. 365, the Government are grateful to the noble Lord, Lord Lucas, for his support. It will provide that the power to amend the areas of learning for the foundation stage as part of the national curriculum is subject to the affirmative instead of the negative procedure. That will be consistent with the powers to amend curriculum requirements for the key stages of the national curriculum.
Amendment No. 379—a government amendment—is a technical amendment, which corrects a very minor error in the Bill. It is intended that the Bill should repeal Section 98(2)(c)(ii) of the Environmental Protection Act 1990. This is correct in paragraph 10 of the minor and consequential amendments in Schedule 21, but the entry in the repeals in Schedule 22 contains an error. This amendment to Schedule 22 corrects that error. I commend these two government amendments to the Committee.
Lord Lucas: I shall not try to argue my amendment in detail this evening. Perhaps we may return to the matter at another time when the troops are out.

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However, I should like to know what Amendment No. 379 now repeals. Can the Minister tell me what is the provision in the Environmental Protection Act that requires to be repealed by this Bill?
Lord Davies of Oldham: Noble Lords may believe it or not, but, even at this late hour, I had anticipated that the noble Lord might press me on that point. Unfortunately, what I am not sure that I am capable of doing is repeating with precision the sections that the amendment would repeal. However, I shall do my very best to do so on behalf of the noble Lord, and, indeed, on behalf of the whole Committee.
Section 98(2)(c)(ii) of the Environmental Protection Act 1990 is an obsolete provision that refers to Section 218 of the Education Reform Act 1988. As noble Lords will recall, Section 218 of that Act is repealed by the Bill. Section 98 of the Environmental Protection Act is in a part of the Act dealing with control of litter, which applies to various categories of land including land of some educational institutions. Section 98 then defines "educational institutions".
The definition in subsection (2)(c)(ii) includes the reference, which the Bill is removing, to institutions designated under Section 218 of the Education Reform Act. This reference is obsolete as no such institutions have been able to be designated for many years. The amendment will not of course affect the continued application of this part of the Environmental Protection Act to maintained schools, CTCs, academies and further and higher education institutions. I hope that I have satisfied the noble Lord on that point, and received support from all sides of the Committee.
Lord Lucas: I am immensely grateful. The sun will rise tomorrow. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldhammoved Amendment No. 365:
Page 123, line 22, at end insert—
"(bb) section 79(3),"
On Question, amendment agreed to.
Clause 203, as amended, agreed to.
[Amendments Nos. 365A and 365B had been withdrawn from the Marshalled List.]
Clause 204 [Wales]:
Baroness Ashton of Uphollandmoved Amendment No. 366:
Leave out Clause 204 and insert the following new Clause—

WALES
(1) Subsection (2) applies where—

(a) this Act confers a function (in this section referred to as "the new function") on the Secretary of State by amendment of another Act, and

1340

(b) any functions under that Act have before the passing of this Act been transferred to the National Assembly for Wales by an Order in Council under section 22 of the Government of Wales Act 1998 (c. 38) (transfer of Ministerial functions).

(2) The new function, so far as exercisable in relation to Wales, is to be treated as having been transferred to the National Assembly for Wales by an Order in Council under section 22 of the Government of Wales Act 1998 (c. 38) and, accordingly, the transfer may be varied or revoked by an Order in Council under that section.
(3) For the purposes of section 22 of the Government of Wales Act 1998 (c. 38), an Order in Council made by virtue of subsection (2) or section 201(3) is to be treated as if it were revoking or varying a previous Order in Council.
(4) Subsection (2) does not apply in relation to the amendment made by section 201(1)."
On Question, amendment agreed to.
[Amendments Nos. 367 and 367A not moved.]
Clause 204, as amended, agreed to.
[Amendment No. 367B not moved.]
Clause 205 [General interpretation]:
Baroness Ashton of Uphollandmoved Amendment No. 368:
Page 124, line 30, at end insert—
"contract of employment" has the meaning given by section 230(2) of the Employment Rights Act 1996 (c. 18);"
On Question, amendment agreed to.
[Amendment No. 369 not moved.]
Clause 205, as amended, agreed to.
Clauses 206 to 208 agreed to.
Clause 209 [Commencement]:
Baroness Ashton of Uphollandmoved Amendments Nos. 370 and 371:
Page 126, line 28, leave out "1 and 2" and insert "A1 to 2A and 6".
Page 126, line 38, leave out "3 and 4" and insert "2B to 5".
On Question, amendments agreed to.
Clause 209, as amended, agreed to.
Clause 210 agreed to.
Schedule 21 [Minor and consequential amendments]:
Baroness Ashton of Uphollandmoved Amendments Nos. 372 and 373:
Page 198, leave out line 29.
Page 198, line 32, at end insert—

15A SUPPLY OF INFORMATION BY CONTRACTOR, AGENCY, &C.
(1) This section applies to arrangements made by one person (the "agent") for another person (the "worker") to carry out work at the request of or with the consent of a relevant employer (whether or not under a contract).
(2) Subsections (3) and (4) apply where an agent—

(a) has terminated the arrangements on a ground mentioned in section 138 of the Education Act 2002,

(b) might have terminated the arrangements on a ground mentioned in that section if the worker had not terminated them, or

(c) might have refrained from making new arrangements for a worker on a ground mentioned in that section if he had not ceased to make himself available for work.

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(3) In the case of arrangements for a worker to carry out work in England, the agent shall provide prescribed information to such of the following as may be prescribed—

(a) the Secretary of State, and

(b) where the person is a registered teacher, the Council.

(4) In the case of arrangements for a worker to carry out work in Wales, the agent shall provide prescribed information to such of the following as may be prescribed—

(a) the National Assembly for Wales, and

(b) where the person is a registered teacher, the General Teaching Council for Wales.

(5) If the Secretary of State thinks that an agent has failed or is likely to fail to comply with a duty arising under subsection (3), the Secretary of State may direct the person to comply with the duty.
(6) If the National Assembly thinks that an agent has failed or is likely to fail to comply with a duty arising under subsection (4), the National Assembly may direct the person to comply with the duty.
(7) A direction under subsection (5) shall be enforceable, on the application of the Secretary of State, by mandatory order.
(8) A direction under subsection (6) shall be enforceable, on the application of the National Assembly, by a mandatory order.
(9) Subsections (4) and (5) of section 15 shall apply for the purposes of this section as they apply for the purposes of that section."
On Question, amendments agreed to.
Lord Lucasmoved Amendment No. 374:
Page 206, line 38, leave out paragraph 125.
The noble Lord said: I should be grateful if the Minister would tell me what has changed and what is the purpose of this change to the Freedom of Information Act 2000. I note that her forces have departed. If we can string this debate out for five minutes or so and I call a Division, we might have some interesting results. Please do not hurry. I beg to move.
Lord Davies of Oldham: I am sure that the noble Lord is in error when he suggests that any Member has departed from this absorbing debate. Everyone was waiting agog for Amendment No. 374 to be moved. It gives me great pleasure to be able to reply to it.
Amendment No. 374 would delete the application of the Freedom of Information Act requirements to nursery school governing bodies. This requirement is consistent with our policy of bringing the requirements on the new governing bodies into line with the requirements on the governing bodies of more maintained schools. Currently, nursery schools are covered by the Freedom of Information Act through the duty that Act places on LEAs. Requiring nursery schools to have statutory governing bodies means that
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for the purposes of the Freedom of Information Act those governing bodies become the relevant public authority. This makes explicit what is implicit in existing legislation. It applies to maintained nursery schools the same legislation that applies to other maintained schools.
We are considering how best to support nursery schools and LEAs to make the transition to a statutory governance regime. That and all other consequential requirements which flow from requiring nursery schools to have governing bodies will be taken into account. I hope that the noble Lord will accept that explanation.
Lord Lucas: I am disappointed to say that that is a perfect reply. I have no alternative but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 21, as amended, agreed to.
Schedule 22 [Repeals]:
Baroness Ashton of Uphollandmoved Amendments Nos. 375 to 379:
Page 208, line 11, column 2, at beginning insert "In section 23, in subsection (2), paragraph (f) and the word "and" immediately preceding it, and subsections (3) and (4)."
Page 208, line 14, column 2, leave out "and 44" and insert ", 44 and 214(a)."
Page 208, line 21, column 2, at beginning insert "In sect ion 29, in subsection (2), paragraph (f) and the word "and" immediately preceding it, and subsections (3) and (4).
Page 208, line 22, at end insert—
School Standards and In Schedule 30, paragraph 215.
Framework Act 1998 (c. 31)
Page 209, line 20, leave out "9(2)(c)(ii)" and insert
"98(2)(c)(ii)"
On Question, amendments agreed to.
[Amendments Nos. 379A and 379B not moved]
Baroness Ashton of Uphollandmoved Amendment No. 380:
Page 212, leave out lines 1 and 2.
On Question, amendment agreed to.
Schedule 22, as amended, agreed to.
House resumed: Bill reported with amendments.

Land at Palace Avenue, Kensington (Acquisition of Freedhold) Bill
Reported from the Unopposed Bill Committee without amendment.
House adjourned at twenty-eight minutes before three o'clock.

Official Report of the Grand Committee on the
  Tax Credits Bill

    The Committee met at half-past three of the clock.
    [The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
    The Deputy Chairman of Committees (Lord Brougham and Vaux): I shall remind noble Lords that there will be no Divisions in the Committee; we shall speak standing and observe the rules of procedure as on the Floor of the House. If there is a Division in the Chamber we shall adjourn for 10 minutes and the noble Lord who is speaking will continue afterwards.
    Clause 25 [Liability of officers for sums paid to employers]:
    [Amendment No. 160 not moved.]
    The Earl of Northeskmoved Amendment No. 161:
    Page 18, line 2, leave out "or neglect"
    The noble Earl said: In moving Amendment No. 161, which stands in the names of my noble friends, I shall speak also to Amendment No. 162. The amendment seeks to leave out the words "or neglect". Obviously it is right that culpable officers should be liable for any fraudulent conduct—we have no complaints about that—but neglect is a different matter, albeit I acknowledge that some cases might give rise to difficulties if they are on the cusp between neglect and fraud.
    In part, at least, we return to the point of principle that I have referred to in previous debates. Why should companies be held liable for neglect when they are being required to do the Inland Revenue's work for it? The system of tax credits is undeniably complex. As we have sought to point out on many previous occasions, it is wholly credible, particularly in the small business sector, that this complexity will cause companies difficulties. Mistakes will undoubtedly occur. In very many cases neglect—the perception that a culpable officer has not acted with reasonable care—will arise directly from the imposition by the Government of the requirement to pay tax credits through the payroll. To this extent, liability of culpable officers for neglect is inappropriate. Alternatively, if the Government are determined upon a neglect test, it needs to be drafted more precisely.
    It may be convenient for the Committee if I deal with a related point here rather than initiate the clause stand part debate in due course. We are uncomfortable with the scope of the definition of "culpable officer". It seems over the top that a secretary, who is simply complying with the terms of his or her contract of employment and pushing the right buttons on a
    CWH 186
    computer to operate the payroll system, should suddenly find himself or herself liable for fraud or neglect. I hope that the Minister can give the Committee some comfort on this point. I beg to move.
    Earl Russell: I have a very limited degree of sympathy with this amendment. It is important that fraud and neglect should not be confused. Fraud must demand the element of mens rea, a conscious and deliberate desire to offend. Neglect has no such demand. Neglect is a simple failure to notice that one ought to be doing something.
    However, the point still remains that ultimately we have here a duty of care being placed upon the employer. Neglect of that duty of care must remain an offence. Were the noble Earl, Lord Northesk, to consider rewording the amendment in a way which leaves neglect as an offence, but a less severe offence than deliberate fraud, we on these Benches might take an interest and wish to discuss the issue further.
    Lord McIntosh of Haringey: The first thing to make clear is what is meant by "neglect". In common parlance it could be something which is quite—I will not say benign—without malign intent. In law and in this Bill it means something quite specific—that is, a failure to take reasonable care; and, in this case, reasonable care with someone else's money.
    Let me make clear how this fits into Clause 25, which allows regulations to be made to hold an officer of a company—in practice usually a director—personally liable in a situation where excessive funding had been obtained to make payments of working tax credit and not repaid, provided that the debt was believed to have arisen through the fraud or neglect of that person. The amendments would cut out the neglect criterion.
    We believe that people should not be able to set up companies, obtain funding for tax credits and then become insolvent on a regular and deliberate basis. These powers should not apply simply because a company has a tax credit debt when it becomes insolvent; that happens far more often and everybody suffers when it happens. In this case, we are talking about something more precise. We would only use the provisions made possible by the clause in cases where there appears to have been deliberate exploitation of a company's limited liability and the tax credit system used for a director or other officer's personal benefit. We can come to the personal benefit issue when we talk about the definition of culpable officers, which I understand the noble Earl, Lord Northesk, wants to deal with on clause stand part. Or does he want me to deal with it now?
    The Earl of Northesk: Now, please.
    Lord McIntosh of Haringey: "Culpable officer" is defined as,
    "any director, manager, secretary or other similar officer",.
    In other words, it is a person with a position of responsibility in the company and it could not catch clerical staff. It means, of course, the company

    CWH 187
    secretary. These provisions would be used when a director or a company secretary who had the same ability and the same responsibility as a director were deliberately using the system for their personal benefit.
    There are two reasons why we believe it is right to maintain the negligence test as well as the fraud test. Negligence means a failure to take reasonable care. Where companies receive significant sums of public money to fund the payment of working tax credit to their employees, the officers of the company should be expected to take reasonable care to ensure that the money is used for that purpose.
    Secondly, there are practical difficulties with a test that only covers fraud. There will be cases where it is clear that there has been either fraud or neglect, but it may be hard to show categorically that there has been fraud rather than neglect. The danger is that the amendment would allow deliberately dishonest people to hide behind the cloak of negligence and make it more difficult to counter such abuse.
    There is nothing new about this provision, either in terms of the approach taken towards those who exploit the limited liability of companies or in its potential application to cases where there has been negligence on the part of the officer of the company. It is not only that these tests already apply to working families' tax credit and disabled person's tax credit; but they have also applied for many years to national insurance contributions. Amending the clause in the way that the amendments suggest would be going back beyond the previous tax credit system to national insurance contributions. I do not believe that that is what the noble Earl, Lord Northesk, is looking for.
    Earl Russell: The noble Lord's arguments are extremely persuasive and reasonable. He made a very useful statement about the limiting purposes for which the Government would use the clause where it was deliberate abuse of the system just for personal benefit. It would satisfy me if he would say that that statement was made with the case of Pepper v Hart in mind.
    Lord McIntosh of Haringey: I do not say that when any Minister stands up we do not bear Pepper v Hart in mind, but we acknowledge, if we have to, that Pepper v Hart exists. If there is not to be a Clause 25 stand part debate, I should perhaps say a little more about the issue that concerns the noble Earl, Lord Russell. It is important that it be clear in what circumstances it is intended the powers should be used.
    We are talking about something called "phoenixism", which is the practice of exploiting limited liability by carrying on what is effectively the same business through a series of companies, each of which builds up debts before becoming insolvent. Anybody who has heard me talk about my career in small business knows how violently opposed I am—and I do not believe Pepper v Hart is going to cover this bit—to people who go bankrupt owing me money, and then reappear with a slightly different name. The same directors still owe me money, and I am not able to get it. However, it does arise—it has to arise—with tax
    CWH 188
    credits, as it does with national insurance contributions, and indeed with PAYE. A company receives national insurance contributions and PAYE from its employees before it has to pay it out. Under those circumstances, if the company chooses that time to go insolvent, the public purse is left in deficit.
    We have already discussed the way in which tax credits are either funded from money that is already held by a company for the purposes of PAYE and national insurance contributions or, if not, are funded in advance by the Revenue. The words "in advance" are critical. The company could apply for funding from the Revenue, but then become insolvent before any working tax credit has been paid over to the employees. Clause 25 allows us to recover the unpaid tax credit from the officers of the company. I have discussed enough the issue of who are the officers of the company, and I have made it clear, I hope, that the powers already exist in relation to working families' tax credits, disabled person's tax credits and national insurance contributions.
    Earl Russell: We on these Benches are satisfied with the Minister's reply.
    The Earl of Northesk: I am extremely grateful to the Minister for his response, from which I draw some encouragement. I am also grateful, to the noble Earl, Lord Russell, for his sympathy so far on the amendment. Indeed, I have taken note of his helpful suggestion, albeit that those on the Liberal Democrat Benches are now content.
    None the less, I agree with the proposition that an alternative would be a more precise form of drafting of the distinction between neglect and fraud. It is our fervent belief that legislation should say what is the Government's intent rather than leaving it rather woolly. I have no doubt that we will want to return to the matter on Report, but in the meantime I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 162 not moved.]
    Baroness Byfordmoved Amendment No. 163:
    Page 18, line 18, at end insert—
    "() for the Board to waive claims under subsection (1) where the body corporate consists of voluntary, unpaid persons"
    The noble Baroness said: I apologise to the Committee for my absence last week when I was unwell and away from the House. I thank my noble friend Lord Northesk for moving two or three of my amendments in the course of the procedures.
    Amendment No. 163 relates, in particular, to school governing bodies, but I am sure there are many other organisations employing small numbers of staff that may come under the same general heading. Depending on the nature and classification of the school in question, the governing body employ either a few people, maybe their own clerks, or as many as the total staff of the school. Day-to-day administrative and management roles are delegated to the head teacher,

    CWH 189
    while the governing body remains responsible for a strategic and monitoring role. Its primary duties concern pupil performance and achievement.
    The governors, as noble Lords will know, are normally paid nothing, not even reimbursement for phone calls, stamps or travelling expenses. The job that they do has been acknowledged by the Government as an important one, and indeed the Government have piled on extra responsibilities. Their function, however, does not normally enable them to carry out the detailed monitoring necessary to ensure the sort of compliance required in the Bill. Hence, finance committee chairman should not be liable to pay the shortfall due to the negligence of—perhaps—the school bursar.
    It would be a travesty of justice were the Bill to pass containing a clause that could penalise volunteers for the ill-doings of others. I should be grateful if the Minister would consider wording Clause 25 to make it clear that, where an employee is negligent, no financial liability will accrue to the culpable officer, if a governor. I beg to move.
    3.45 p.m.
    The Earl of Northesk: I have sympathy with my noble friend's purpose. Without assurances on this point it is entirely credible that the Bill could inadvertently discourage people from giving freely of their time to the charitable and voluntary sectors. Such an unforeseen consequence would be undesirable.
    That aside, we are, at least in part, concerned about the problems created by the failure of the Bill to distinguish as precisely as is required between neglect and fraud. Surely it is invidious to expect someone working unpaid in the educational sector, to use my noble friend's example, to be wholly liable for sums recoverable by the board in circumstances where he or she has made an honest mistake in administering the payroll.
    Lord McIntosh of Haringey: Any of us who have been involved in voluntary organisations which undertake trading activities must be sympathetic to what the noble Baroness, Lady Byford, says. Of course we understand the position of trustees, who are responsible people and may be employing somebody else, who is in turn responsible for money. This amendment would require the regulations provided for in Clause 25 to include provisions for the Revenue to waive claims where the body corporate in question consisted of voluntary unpaid persons.
    In practice, as I said in response to the previous group of amendments, the Revenue would only use the provisions in regulations made under this clause in cases where there appears to have been a deliberate exploitation of a company's limited liability and the tax credit system for the officer's personal benefit. The amendment refers to the officer and not, for example, to a school bursar, who is not an officer.
    My notes say that we expect it would be very unlikely that these powers would be used in respect of voluntary unpaid officers. I cannot imagine a situation
    CWH 190
    in which a voluntary unpaid officer would be using these restrictions to his personal benefit unless there were something quite deliberate and fraudulent about it and he or she would benefit from it. Most voluntary unpaid officers, as the noble Baroness, Lady Byford, said, do not have any financial benefit. There is no personal benefit available to them and therefore they could not possibly be caught by this clause.
    Any organisation that employs staff has responsibilities for the collection of PAYE and the paying of tax credits. If it receives funding for working tax credit, it has a responsibility for ensuring that the money is correctly paid over to the employee. The fact that it may be voluntary and unpaid does not affect that principle.
    Only a person who has been fraudulent or negligent can be held liable for a debt. As I have made clear, the regulations will in turn extend that to say that it is a deliberate exploitation and that it is for the officer's personal benefit. I believe that that will be restriction enough to protect people in the kind of case to which the noble Baroness, Lady Byford, refers.
    Baroness Byford: I thank the Minister for his response. Unfortunately, I have missed a week's proceedings and I am having to catch up very quickly. I listened intently to the Minister's response. I accept what he said and the way that he said it. The Minister considers that if a problem were to arise the procedure would be activated only if there was evidence that the actions were deliberate and fraudulent. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 25 agreed to.
    Clause 26 agreed to.
    Schedule I agreed to.
    Clause 27 [Overpayments]:
    Lord McIntosh of Haringeymoved Amendment No. 164:
    Page 18, line 40, leave out "period under an award made" and insert "tax year"
    The noble Lord said: In moving Amendment No. 164, I shall speak also to Amendments Nos. 165 to 171. This group of amendments makes changes to Clause 27 which is about overpayment. These amendments are needed in consequence of changes earlier in the Bill, which we have already discussed, whereby final decisions about entitlement after the end of the year are now in a new clause after Clause 17, called "Decisions after final notice". There is nothing new about them other than that. I realise that they result in a series of complex changes to Clause 27 and I hope I have succeeded in arranging for a keeling schedule, in other words Clause 27 as amended, to be supplied to the Opposition parties. I hope that will provide sufficient assurance for me not to speak at further length to these amendments. I beg to move.
    Lord Higgins: The Committee will be grateful to the Minister for the so-called keeling schedule, which helps to clarify matters in as much as it brings the whole set of changes together. We have already

    CWH 191
    discussed various categories of what I have described as restructuring amendments—those designed to put right the wrong drafting of the Bill. Am I right in thinking that these amendments come in the first category, on awards and entitlements? It would be helpful to know whether that is so. Am I also right in believing that these amendments make Clause 27 compatible with the rest of the Bill, which it was not originally? The two sections as drafted—the earlier part and Clause 27—are contradictory, or at any rate incompatible. In the interest of speeding matters up, perhaps the Minister could confirm which of the various categories this comes under. We do not need to go over the same ground that we have already discussed at some length. No doubt we shall wish to return to it on Report.
    Lord McIntosh of Haringey: The noble Lord, Lord Higgins, is largely correct. Most importantly, these amendments refer to the first of the four categories into which the government amendments fall, which draws the distinction between the award of tax credits, under which payments are made during the year, and entitlement, which is settled after the year end. There is an element of the fourth category as well, which divides the end of year statement provisions from the decisions the board makes on entitlement after the year. That is why a number of the amendments refer to the new clause which does not yet have a number. In principle, however, that is correct.
    Lord Higgins: So it affects Clause 17 as well as the other clauses concerned with award and entitlement.
    Lord McIntosh of Haringey: As the new clause which is provisionally called "Decisions after final notice", which was introduced by earlier amendments.
    Lord Higgins: Which number amendment was that?
    The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): It was new Clause 17A. The clause was split in two: Clause 17 deals with notices and new Clause 17A deals with decisions. As my noble friend said it is category one primarily, but also category four.
    Lord McIntosh of Haringey: And it will be renumbered with the Bill as amended in Committee.
    Lord Higgins: I am grateful for that clarification. I can only say, "What a mess". We shall have to try to sort it out later.
    Earl Russell: Before we leave this, I wish to thank the Government for the care and trouble they have taken to explain these amendments to us. I see no reason to object to them.
    On Question, amendment agreed to.
    Lord McIntosh of Haringeymoved Amendments Nos. 165 to 171:
    Page 18, line 41, leave out "or they are entitled for the period" and insert "entitled, or they are jointly entitled, for the tax year"
    Page 18, line 43, leave out "17" and insert "(Decisions after final notice)"
    Page 19, line 1, leave out from beginning to "is" in line 2 and insert "For overpayments made under awards on single claims, the person to whom the tax credit was awarded"
    Page 19, line 4, leave out from beginning to "are" in line 5 and insert "For overpayments made under awards on joint claims, the persons to whom the tax credit was awarded"
    Page 19, line 9, leave out "(or part of a tax year)"
    Page 19, line 11, leave out from "or" to "; but" in line 12 and insert "any other award of any tax credit made to the person or persons"
    Page 19, line 13, leave out "on the award is taken under section 17(6)" and insert "is taken in relation to the person or persons for the tax year under section (Decisions after final notice)(1)"
    On Question, amendments agreed to.
    Lord McIntosh of Haringeymoved Amendment No. 172:
    Page 19, line 13, at end insert—
    "(6) Where the Board decide under section 16 to terminate an award of a tax credit made to a person or persons on the ground that at no time during the period to which the award related did the person or persons satisfy—

    (a) section 8(1) (if the award related to child tax credit), or

    (b) section 10(1) (if it related to working tax credit),

    the Board may decide that the amount paid under the award, or any part of it, is to be treated for the purposes of this Part (apart from subsection (5)) as an overpayment."
    The noble Lord said: This group of amendments deals with overpayments and underpayments. Amendment No. 172 will enable the board to recover overpayments before the end of the year where an award was initially made to a person who, in fact, never met the basic qualifying criteria for the tax credit.
    Amendment No. 174 makes clear that the board is under an obligation to pay any extra tax credits to claimants in cases where there has been an underpayment. This is not an oversight, but again is something caused by the changes which have already been agreed. Amendment No. 201 provides for interest to be charged on an overpayment which is attributable to fraud or negligence, and Amendment 232 is consequential. I beg to move.
    Lord Higgins: I am not entirely clear whether this is part of the restructuring or whether it is something which is a normal amendment in the sense that the Government thought of these points after the Bill had come before the House of Commons. If it is restructuring, again it would be helpful to know what category it comes into and in what way it affects the Bill.
    I come back also to the final amendment to which the noble Lord referred, which I believe to be Amendment No. 201. It concerned the question of interest on underpayments as a result of fraud.

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    I presume if it is a case of fraud the individual concerned will be prosecuted. I am not sure to what extent this provision reflects normal Inland Revenue practice and whether it is different from social security practice. Is it normal, on top of whatever penalty—presumably a criminal penalty—is imposed for fraud, for interest to be charged on the amount of underpayment? If so, will it be done on the Inland Revenue basis? I am not sure to what extent any interest is chargeable on underpayments in relation to work and pensions provision; that is, social security provision. If we are suddenly introducing an interest penalty into what has formerly always been social security affairs, that would be helpful to know, not least because on this side of the Chamber we remain of the view that many of these payments are social security payments and not tax credits.
    Lord McIntosh of Haringey: The answer to the first question is that it falls into category one; that is, the distinction between awards and entitlement, which include overpayments and underpayments.
    The second question relating to Amendment No. 201 arises perhaps because I was being a little elliptical. Amendment No. 201 is about overpayments, not about underpayments. It is designed to ensure that interest can run on the overpayment from the date the decision to terminate the award is made, rather than having to be deferred until the end of the year. The amendment does not change the fact that interest on overpayment can only be charged if overpayment is attributable to fraud or neglect.
    The noble Lord, Lord Higgins, is right in thinking that that basically follows Inland Revenue rules rather than social security rules. Indeed, on the question which he asked but which is not related to Amendment No. 201, provision for interest to be charged on underpayments of tax is included, and has always been included, in the Taxes Act and is not changed by this amendment. Tax credits interest will only be charged where there is fraud or neglect.
    Lord Higgins: That would seem to be a tightening of the regime compared with what normally applies in regard to social security. I shall need to consider that. I am somewhat puzzled by the exact wording which the noble Lord—I think improvising—used. Presumably there is no interest on overpayments. Or is he saying the Revenue will add interest to any reimbursement of overpayments and, if so, at what rate?
    Lord McIntosh of Haringey: It will be set out in regulations.
    Lord Higgins: Presumably there is some point of principle as to what rate of interest is charged. If it is the same as the normal interest paid by the Revenue—which has always been absolutely miserable—at least can the Minister clarify whether the interest paid on overpayments will be less than the interest charged on underpayments?
    Lord McIntosh of Haringey: I shall have to write to the noble Lord, Lord Higgins, on that matter.
    On Question, amendment agreed to.
    4 p.m.
    Lord Freemanmoved Amendment No. 173:
    Page 19, line 13, at end insert—
    "() Where it appears to a person or persons in receipt of an award of tax credit that there is likely to be an overpayment of tax credit for a tax year (or part of a tax year), they may serve a notice on the Board at any time during that tax year after the expiry of the first six months specifying, or estimating, the amount of their income for the tax year in the prescribed manner, in which case no overpayment shall arise in respect of the first six months of the tax year, but the Board may decide that any overpayment arising in respect of the rest of the tax year shall be repaid to them "
    The noble Lord said: This is a probing amendment which contains some novel ideas. We are dealing with a certain category of overpayment and I am asking the Minister to think about the principles underlying this amendment. It has been drafted by the Low Incomes Tax Reform Group and addresses the particular problems of low income workers who qualify for tax credit but whose income rises above the tax threshold during the course of the tax year. In those circumstances, the amount above the threshold is repayable. If the board is not told immediately—and that could be for reasons of either ignorance, innocence or inability to calculate the higher and current rate of income of the claimant—then the adjustment is made in the next tax year.
    The basic anomaly is that the tax credit is calculated on the basis of the preceding year's tax income, but when the current year's tax income has been calculated for qualifying income an adjustment may or may not have to be made.
    The problem is that for certain categories of very low income taxpayers the money may well be gone by the time the overpayment above the threshold has to be made. That in itself can cause hardship. I quite accept that the drafting of the amendment does not specify precisely the amount above the £2,500 threshold which, as the Minister explained, is already ignored when an overpayment calculation is made, but my intention is that it should be very modest in terms of an overpayment—for example, a few hundred pounds.
    The amendment suggests, therefore, that if the claimant takes action in the middle of the current tax year—and I am suggesting at a very precise moment in the middle of the tax year—and states, "My income has gone up and I need the board"—the Inland Revenue—"to recalculate the tax credit", the tax credit overpayment can be recovered, either as a lump sum or during the course of the remaining part of the tax year. That would be of advantage to the Inland Revenue because the position of the claimant becomes more current. It would also be to the advantage of the claimant because the claimant would be making his or her position more current much more quickly.
    The amendment proposes that the anomaly is stopped earlier, the tax credit is reduced and, in return, the overpayment for the first part of the year is

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    foregone. I stress that this should be a fairly modest sum so that the incentive to become current is not disproportionate to the burden for the Treasury.
    I conclude by pointing out that income may vary, and vary constantly, for some people, particularly the self-employed on very low incomes who qualify for tax credit. This may push them into a position during the course of the current year where they face a significant, for them, repayment to the Inland Revenue. The amendment seeks to introduce a mechanism, which needs to be fine-tuned, to correct the anomaly much earlier on—partly at the expense of the Inland Revenue and partly to ensure that the individual outgoings are properly matched by the resources available. I beg to move.
    Baroness Byford: I shall speak to Amendment No. 187. This again is a probing amendment but I hope for clarification from the Minister. Many of those entitled to tax credits will be treading a very fine line between Micawber's two states of pecuniary bliss and misery. Recovery of overpayment of credit will be a near impossibility for many. To indulge in the cost of dislocation, the loss of earnings and the stress of a court appearance to win a point against someone who has little or nothing to offer is perhaps an unnecessary charge on the state. When do the Government expect action to be taken? Will everyone be taken to court for underpayment?
    The noble Baroness, Lady Hollis, commented on the need to have some form of graduated scale for repayments—monthly, quarterly or whatever might be necessary. The Minister might like to consider that, because I am sure that none of us wishes to see unnecessary use of the public purse in pursuing someone who has very little chance of repaying, even if it is for a short period.
    Lord McIntosh of Haringey: I agree with a great deal of what the noble Lord, Lord Freeman, and the noble Baroness, Lady Byford, have said about their amendments. The noble Lord, Lord Freeman, is right to say that it is in the interests of the Inland Revenue that people whose income increases during the year—and whose entitlement to tax credit consequently decreases—should notify the Revenue not just six monthly but at any time. It is in the interests of the Revenue that overpayment should not build up over the period of the year.
    The original intention in having the assessment made on the whole-year basis was to save employers work. I am sure that the noble Lord, Lord Saatchi, and the noble Earl, Lord Northesk, are well aware of that point and the reasons why saving employers work means additional complication in the legislation. The noble Lord, Lord Freeman, is right to say that it is to the advantage of people receiving credit that they should not build up overpayment so that they have to make a repayment at a particular time.
    The solution proposed in Amendment No. 173 is that where there is a declaration by the person after the expiry of the first six months that there will be an
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    overpayment, no overpayment should arise in respect of the first six months of the tax year. That is a very considerable reimbursement to the person who is receiving credit—it is a very considerable bribe. We would have to calculate very carefully how much it would cost and whether it would be just to do that.
    As has been discussed at earlier stages in this Committee, we have provided that the need for claimants to contact the Revenue to tell it about changes in their income should be reduced by the fact that only increases in annual income of more than £2,500 can have any effect on entitlement. That is a better way of doing it—it is failsafe, and ensures that there are fewer cases of overpayment that has to be repaid. The solution proposed in Amendment No. 173 is erratic and incalculable in its effect and I prefer the way in which we are proposing to deal with what is undoubtedly a potential problem.
    Amendment No. 187 is concerned with the recovery of overpayments and the imposition of penalties. We intend to require the Revenue to offer instalment terms to all claimants who are subject to a penalty. I assure the noble Baroness, Lady Byford, that the Inland Revenue will take into account the size of the debt, the resources available to the claimant and, where appropriate, the particular circumstances of the case when deciding on the method and rate of recovery for tax credits. It is important to ensure that people do not suffer undue hardship when a recovery system is being made. We certainly do not want to follow the Australian example, which is to issue a one-off demand. The timescale for recoveries will depend on the claimant's resources and the amount of overpayment. Furthermore, clear guidelines will be issued about how far future tax credit awards can be reduced to recover overpayment. That is exactly as it is for income tax where underpayments can be dealt with by an adjustment to the coding for the next year, rather than by writing a cheque to the Inland Revenue.
    I do not think the amendment would be particularly effective or fair because it is concerned with penalties. Such penalties are levied only on individuals who have been fraudulent or negligent. It would not be right to have a leniency provision such as that proposed by the noble Baroness, Lady Byford, specifically for those people who have been fraudulent or negligent. It is better to have a system of the kind in place for income tax; that is, of the kind that will be set out in regulations and guidance and which would apply to everyone.
    Lord Higgins: I have listened with interest to the amendments of both my noble friends. Perhaps I may clarify one or two points in relation to the Minister's last remarks. First, is it correct to say there will be no overpayment arising if the individual's income rises by less than £2,800 during the year?
    Lord McIntosh of Haringey: £2,500, yes.
    Lord Higgins: I beg your pardon, £2,500. Secondly, as far as penalties are concerned and given Amendment No. 172 that we have just carried, suddenly we see introduced the concept not of award

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    or entitlement, but that of termination. Will penalties be imposed if termination is decreed by the Revenue in the light of Amendment No. 173? That is to say, if it turns out that the individual was not entitled to the award at all and it is terminated, is he then liable to penalties?
    Lord McIntosh of Haringey: He is liable to pay back the award. I do not know whether that would be called a penalty.
    Lord Higgins: Is he liable to a penalty on top of that?
    Lord McIntosh of Haringey: Not unless there has been fraud or negligence.
    Lord Freeman: I am grateful to the Minister for his clear exposition. He is quite right to address the amendment as tabled and not as I argued it. I accept that that is the correct way to proceed. I hope that I have made it clear to the Minister that I was not expecting an unlimited waiver of tax overpayment for the first six months. I am grateful to the Minister for his remarks, which I shall study carefully. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 27 agreed to.
    Clause 28 agreed to.
    Lord McIntosh of Haringeymoved Amendment No. 174:
    After Clause 28, insert the following new clause—
    "UNDERPAYMENTS
    (1) Where it has been determined in accordance with the provision made by and by virtue of sections (Decisions after final notice) to 20 that a person was entitled, or persons were jointly entitled, to a tax credit for a tax year and either—

    (a) the amount of the tax credit paid to him or them for that tax year was less than the amount of the tax credit to which it was so determined that he is entitled or they are jointly entitled, or

    (b) no payment of the tax credit was made to him or them for that tax year,

    the amount of the difference, or of his entitlement or their joint entitlement, must be paid to him or to whichever of them is prescribed.
    (2) Where the claim for the tax credit was made by one person on behalf of another, the payment is to be made to whichever of those persons is prescribed."
    On Question, amendment agreed to.
    Clause 29 [Incorrect statements etc.]:
    4.15 p.m.
    The Earl of Northeskmoved Amendment No. 175:
    Page 19, line 38, leave out "fraudulently or"
    The noble Earl said: Amendments Nos. 181 and 184 are grouped with this amendment and I therefore propose also to speak to them. Our debates on the Bill have not yet focused on the issue of fraud in the way they did in another place. It may be that, as a result of the Budget having put some more flesh on the bone of the Bill, we now have rather more to get our teeth into.
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    Fraud is an important matter in the context of the Bill. Accordingly, part of my aim with these amendments is to provide an opportunity for a wide-ranging debate of the issue. I need not rehearse all the arguments. I suspect that the Committee, and least of all my noble friends, would not thank me for lapsing into a rambling Second Reading speech. However, a few key elements need to be aired.
    All agree with the necessity of bearing down on fraud within the welfare system; that is not the point at issue. Equally, most commentators agree that the potential for fraud within the tax credit system is particularly acute. The experience from overseas, particularly in respect of the Canadian working income supplement and earned income tax credit in the USA, lends ample support to this view.
    Part of the problem is that it has proved difficult to get a feel for the level of fraudulent activity present within existing tax credits. On two previous occasions in our Committee proceedings, I have referred to the Inland Revenue benchmarking study into the level of fraud in tax credit claims. I understand that the results were reported to Ministers in September of last year. Yet here we are eight months later and, so far as I am aware, not a dickie bird of the findings has found its way to Members of Parliament. I ask again whether the Minister will give us some idea of the levels of fraud that the Revenue has found in the tax credit system. Who knows, perhaps this will be third time lucky.
    I emphasise that we do not wish anything to be revealed that might compromise the Revenue's ongoing battle against fraud; we merely wish to know the Revenue's estimates of the scope of fraud within the existing system. We have recently learnt—and perhaps the Minister will confirm this—that in the year to March 2001, estimated figures for the amount lost to fraud in relation to income support and jobseekers' allowance have risen to £2 billion; and the estimated cost of errors by claimants and staff was about £1 billion—a total of £3 billion, representing an increase of close to 50 per cent on the previous year.
    Insofar as the tax credits we are debating in the Bill are more susceptible to fraud—and, indeed, that some of the fraud cited will inevitably transfer into the tax credit system—these figures are worrying. We do not question that the Revenue is proactively involved in rooting out such criminal activity. Again, that is not the point at issue. As evidenced by the problems with the new £5 notes reported in today's media, what matters is whether the design of the system deals with the problem in the most appropriate way.
    I offer a few examples. As I understand it, W FTC claimants are required to give documentary proof of their earnings whereas claimants for child tax credit and working tax credit will not have to do so. The childcare element of the working tax credit will not be paid direct to the childcare provider, a decision described as "very strange" by Rosemary Murphy, the chief executive of the National Day Nurseries Association. Perhaps it is, as it were, an unforeseen consequence of the Government's desire to integrate benefits and tax that, again as I understand it,

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    the panoply of powers aimed at bearing down against fraud in the Social Security Fraud Act 2001 will not be available to the Inland Revenue within the remit of the Bill.
    All of this should tell us that it is important that we send as clear a message as we can that we are not prepared to tolerate fraudsters, hence the amendments. Their purpose is, I hope, self-evident. By creating a separate offence of defrauding the tax credit system they seek to distinguish between the degree of seriousness that the law attaches to offences arising from negligence or fraud.
    I should like to add a few points about their detail. In both cases, Amendments Nos. 175 and 181 seek to delete the words "fraudulently or" from Clause 29. In so doing, they limit Clause 29 to a test of negligence. As I read Clause 29, its particular target, if I can put it this way, is the claimant. Here we should be mindful that in this context take-up and fraud are almost two sides of the same coin. As the National Association of Citizens Advice Bureaux has observed:
    "CAB evidence is that both the benefit and tax systems are complicated and intimidating to those lacking in financial literacy skills".
    The point is that at the take-up end of the scale complexity acts as a discouragement. It can also be said that it breeds fear, a fear which is heightened because of the attendant risk of being accused of fraud if an individual makes a mistake in framing an application. On the other hand, at the fraud end of the scale, complexity acts as an encouragement—the more complicated the system, the easier it is to exploit its flaws. In other words, it is necessary in respect of the penalties clauses to look down both ends of the telescope at once. This is the basis upon which our wish to distinguish properly between negligent and fraudulent is based.
    As to Amendment No. 184, I have noted the insistence of the Financial Secretary during proceedings in another place that the new clause embodied in the amendment is unnecessary on the basis that everything it seeks to achieve is already in place in Clause 33. It may well be that the Minister will deploy a similar argument today. I do not necessarily disagree with the point. In fact, in at least one respect, I would even welcome it as a response. It would be tempting to suppose that the use of the words "fraudulently or" in Clause 29 could be something of a drafting anomaly. Clauses 33 and 34 are specifically headed "Fraud", and yet references to fraud creep into Clauses 29 to 32, headed "Penalties". I merely speculate whether it might be more convenient for all concerned that the provisions relating to fraud be consolidated in their own section. Accordingly, in the spirit of helpfulness, I invite the Minister to contemplate such a proposition between now and Report. I beg to move.
    Earl Russell: Taken in conjunction with the noble Earl's other amendments dealing with fraud, some of which we have yet to reach—I hope he will forgive me
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    for mentioning them, but they seem to be relevant—his general strategy seems to be to deal with fraud by making the penalties more severe.
    We are all against fraud, as it is our money in the end that is being taken away from us, and some of us could, from time to time, think of other, better usage. However, the Minister, who is not an ex-academic, knows perfectly well that over the centuries the need for the severity of penalties has been in inverse proportion to the likelihood of detection. In the days when we used to have the mandatory death penalty—
    Baroness Hollis of Heigham: I am sure the noble Earl would like to give way. The penalty was increased precisely because the detection rate was so low.
    Earl Russell: The Minister takes the words out of my mouth. I could not agree with her more. When we had the mandatory death penalty for those stealing things worth more than one shilling, it was because detection was a self-service business, as it very often is now in a great deal of petty crime in the local area. How many people are there enforcing penalties for illegal parking in the area where any noble Lord lives? I imagine there are very few who live in areas where there are enough people doing it to act as a genuine deterrent.
    In straightforward crime, the late Lord Justice Lord Taylor of Gosforth was constantly drawing attention to the fact that a detection rate and conviction rate of 3 per cent meant a need for penalties a great deal more severe than they would otherwise have been and that the incidence fell in a very random way on a small number of people.
    Most of us are much more deterred from crime by the idea that we are going to get caught than by anything else that is likely to happen to us. I hope the Minister may be able to tell us about the number of inspectors available for the Inland Revenue, the amount of workload that she is reckoning on and the length of time it takes them to deal with the bulk of letters that come to them on any one day. All round the public service, including issues such as the enforcement of the minimum wage and the Health and Safety Executive, I observe a limited number of people trying to do more than any human being can possibly do. They make a passable shot at it, but they do not, of course, succeed. Making up for that by the severity of penalty given to the few who happen to be unlucky enough to get caught does not act as a particularly meaningful deterrent, even if it becomes savage enough to end up as a sort of inverse version of the National Lottery. There are probably better hammers with which to crack this nut, but I agree it needs cracking.
    Lord Bassam of Brighton: I always enjoy the noble Earl's historical discourses on these matters and we have not been disappointed this afternoon. I want to concentrate on the general approach to this issue and try to answer the points of the noble Earl, Lord Northesk, as well as we can.
    Clause 29 introduces a maximum £3,000 civil penalty where a person fraudulently or negligently makes an incorrect statement in connection with a

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    claim for tax credit. The purpose of Amendments Nos. 175, 181 and 184 is to apply the £3,000 civil penalty only to cases of negligence, as the noble Earl has explained, and to introduce a new criminal offence with a maximum penalty of six months in prison in cases of fraud.
    We all want a compliance framework that is effective against those who attempt to abuse the system but does not deter the genuine from claiming what they are entitled to. We have carefully considered what the compliance framework for these tax credits should be, expanding where necessary the powers that are available to combat non-compliance.
    We do not believe that what the noble Earl is proposing will make the framework any more effective than it currently is. Although we share that common intention to be tough on fraud, the noble Earl's approach would probably reduce the options available to the Revenue when tackling tax credit fraud, and frankly the amendments do not offer or add anything new.
    Under the powers in the Bill, the Revenue will have two options when it discovers a fraudulent claim. Either it can levy civil penalties under Clause 29, or it can pursue a criminal prosecution under the new offence provided for in Clause 33. Our policy for tax and tax credits is that civil penalties should be used in most cases of fraud, and that there should be criminal prosecutions in cases of serious or organised fraud. We believe that this approach is the most effective and cost-efficient.
    Amendment Nos. 175 and 181 would remove the option of civil penalties in cases of fraud. Amendment No. 184 would introduce a criminal offence. I am afraid that it would be a redundant offence. There are no circumstances in which someone would commit an offence under this amendment, but not commit one under the provisions of Clause 33.
    The amendments would therefore reduce the options available to the Revenue to tackle fraud. Amendment No. 184 would have no effect in practice, and I hope that the noble Earl will not move it.
    The noble Earl asked some questions about the benchmarking study. That study involves examining a representative sample of claims. The results from that will inform further development of the Inland Revenue's compliance strategy for tax credits. The report made it clear that the Inland Revenue is considering the detailed information produced by the study. We will report in due course, but we cannot give a guarantee that this information will be published, as it deals with the specifics of possible frauds. I am sure that the noble Earl accepts that it would be unwise to put that sort of information in the public domain. However, we have made it plain that any appropriate information that we can release will be made public.
    We take fraud very seriously and the Department for Work and Pensions is working hard to check that we have a strategy in place to reduce fraud levels. For instance, targets of a 25 per cent reduction in fraud in IS and JSA by 2004 and a 50 per cent reduction by 2006 have been set. Already the Department for Work and
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    Pensions has exceeded its first target of a 10 per cent reduction and it is a year ahead of schedule. There is hard compliance work being undertaken.
    We believe the measures we have in place are effective. We can demonstrate that from the statistics that are available so far. I believe there is a common approach across the Committee on t his, and obviously we will continue to examine and review the way in which we deal with fraud as a major issue, because it is something that we need to tackle to ensure that people have trust and confidence in the system.
    Lord Northbrook: The noble Baroness very kindly wrote to me on 8th May, after Second Reading, with some details of prosecutions under WFTC, explaining to me that in the 12 months to 30th September 2001, 387 penalties had been imposed, and between October 1999 and 31st December 2001, 621 penalties were imposed with an overall value of about £350,000. Is there any possibility of a comparison for a similar period for what penalties were charged under family credit contributions?
    4.30 p.m.
    Baroness Hollis of Heigham: I shall reflect on that, because some of the areas of difficulty have come with the childcare tax credit, which we have some anecdotal evidence about. We are changing the structure of the new system. We think we have billed out any possible manipulation in the new system of childcare tax credits. However, I shall look at the issue. If I believe that the comparators exist and are revealing, I shall be very happy to show the noble Lord.
    Lord Northbrook: I am most grateful to the noble Baroness. I understand that we may not be comparing like with like.
    Baroness Byford: I should like to put a question to the Minister. Recently, an announcement was made in the press that pensioners who are former employees of the MoD no longer will be able to claim their pensions via the Post Office because of concerns about fraud. What kinds of fraud are causing these concerns?
    Baroness Hollis of Heigham: I think that the noble Baroness may be more interested in the question of Post Offices.
    Baroness Byford: I understand why the Minister says that, but if it is true, then it is quite a serious allegation; namely, that the MoD is no longer going to allow its former employees to claim their pensions through Post Offices, as was announced in the press.
    Baroness Hollis of Heigham: The noble Baroness, Lady Byford, will understand that she has not given me prior notice of this. It is for the MoD to determine how its pensions are paid and thus the matter is not germane to the current Bill. I shall be happy independently to follow up the matter and write to the noble Baroness. If, on reflection, she thinks it appropriate to table an amendment, I be happy to discuss it.

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    It would be daft, however, to seek to speculate as to what is happening at the MoD. As I have said, the noble Baroness was not able to give prior notice and as a result I do not have any relevant information relating to the payment methods of another department.
    The Earl of Northesk: Before concluding the debate, I should like to return to one issue. Can the Minister comment on whether there is merit in attempting to ensure that the fraud clauses are consolidated? Does the Minister have an opportunity to comment on that?
    Lord Higgins: Perhaps I, too, may ask one further question. Does anyone in the MoD get tax credits, or are they likely to?
    Baroness Hollis of Heigham: Yes. By the MoD, I presume the noble Lord refers to members of the armed services and to support civilian staff. This is an income test. First, anyone earning up to £50,000 a year—or even £58,000—will receive the family element, which takes in ranks up to squadron leaders or thereabouts. No doubt noble Lords opposite are more finely tuned than I to the ranks in the armed services. Secondly, many families of the ranks with children would be eligible for CTC. I would expect them to be.
    The Earl of Northesk: Perhaps we may return to this issue on Report; that is, whether it might be more sensible to consolidate all the fraud elements of the Bill. I would say to the noble Lord, Lord Bassam, that I am not sure that my interruption was necessarily an historical discourse.
    Lord Bassam of Brighton: I was referring to the noble Earl, Lord Russell.
    The Earl of Northesk: If the noble Lord had referred to me, I would have been somewhat flattered by such a description.
    I take the point made by the noble Earl, Lord Russell, about the importance of a deterrent. Indeed, that goes to the heart of why we are keen to send a clear message that fraud will not be tolerated. As to detection rates and severity of sentence, that would always be a matter for the courts on a case-by-case basis, within the maximum proposed in the amendment. It is not simply that someone prosecuted within the framework of the amendment immediately would be subjected to the maximum penalty.
    We have had a useful debate and no doubt we shall return to the issue on Report. In the meantime, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Earl Russellmoved Amendment No. 176:
    Page 19, line 38, leave out "or negligently"
    The noble Earl said: With this amendment, I should like to speak also to Amendments Nos. 177 and 182, grouped with it. With the leave of the Committee, I
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    should like also to speak to Amendment No. 200, on which I would otherwise have to make an almost exactly identical speech.
    The basic point of this is one which I have touched on before: we need to attempt to distinguish between wilful fraud and honest error. Where we want to clarify something as a crime, we should be certain that there is the mens rea—guilty intent, a wilful attempt to deceive. When that is the case it is fraud and should be prosecuted as such. But not every erroneous statement made by every claimant for every benefit is necessarily made fraudulently or wilfully. Most of us do not run offices at home. In fact, most of us spend so much time at work that we do not have the time to run offices at home. The only time I ever attempt to do so is on a Sunday—and the number of things I can only attempt to do on a Sunday is well beyond the length of counting.
    When one is dealing with error in the academic field, one asks whether historians' errors are their own, in that they tend to slant the argument in different directions. Or are they systematic in that they send all the parts of the argument in one particular direction? Where one finds errors to be systematic, one feels a degree of suspicion about that historian's perception of truth. But one does not feel that the errors are casual and apparently accidental.
    One ought to look at any error on its own. If they are consistently for the claimant's benefit, one is entitled to a degree of suspicion. But one does not feel that same suspicion if it is perhaps to a greater degree to the claimant's detriment. Not everybody has a record immediately to hand of exactly what their car mileage was on the day they completed their last tax return—rather, it is not the day they completed their last tax return, but the actual end of the financial year. Not everybody has that information to hand.
    Where someone makes a return and, with the best will in the world, attempts to get it right but forgets whether or not they received a portion of income in 1994 or 1995, that should not necessarily count as fraud. It should be necessary to prove an intent to deceive.
    If that point is met with any sympathy, there may be the possibility of progress on this. I should be very glad if it were. I beg to move.
    Lord Bassam of Brighton: I am not sure that the noble Earl, Lord Russell, will appreciate what I am about to say. It is not as sympathetic as he would perhaps like.
    We have to understand what the effects of the noble Earl's amendments would be. Essentially, they would restrict the penalties to cases where there was fraud or the wilful provision of incorrect information. That gets to the heart of his point about there being mens rea.
    The fraud and negligence test is a standard test which is used to establish culpability in the tax and tax credits systems. As we have discussed before, fraud involves deliberate dishonesty while negligence involves a failure to take reasonable care. That is precisely why there ought to be a distinction.

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    I understand the noble Earl's concerns about imposing interest and penalties on those who have simply made an innocent mistake—we can all understand that. However, that is not what the test of "fraud or neglect" is intended to allow. The long-established test of negligence is applied to those who fail to take the care in making their claim or providing information that any reasonable person would take, and any reasonable person would expect them to take. In making a claim for tax credits, it is only right to expect people to act responsibly, in the same way as the noble Earl would expect people to act in good faith and responsibly when making their annual tax return.
    There will also be cases of deliberate intent to cheat the system in which it is nevertheless difficult to show categorically that someone has acted fraudulently. However, in many such cases it can clearly be shown that their behaviour amounted either to fraud or negligence. Restricting the scope of Clause 29 to fraudulent behaviour would allow the deliberately dishonest to hide behind the cloak of negligence, making it much more difficult to tackle abuse of the tax credits system.
    The test of "fraud or neglect" is well established and does not allow the Revenue to penalise people who make innocent mistakes, which is the territory about which the noble Earl is most concerned. I hope that that explanation provides sufficient assurance for the noble Earl to withdraw the amendment.
    The noble Earl also spoke to Amendment No. 200, which is really the same run of argument. Unless the noble Earl wishes me to do so, there is little purpose in my rehearsing those points here.
    Earl Russell: I thank the noble Lord. I take the point about reasonable care. But, where someone does not have a regular home office, it is quite difficult to establish how many hours you need to spend searching for a piece of paper before you have taken reasonable care to find it and can certify that with the best will in the world you have not done so. There is a question here where one should consider how systematic the error is.
    I take the point that one needs to show that some of these cases may be deliberate attempts to avoid, but it is incumbent on the Revenue to show, at least on the balance of probability, that such is actually the case. There is something in the Bill about the way of approaching this matter. Once is happenstance; twice is coincidence; the third time it is enemy action. If the Revenue was prepared to go that far, it would be adopting a sensible principle.
    But there is a serious risk of one error made in good faith. Claimants on benefit, especially those who are illiterate, are not always particularly good at keeping records. In those cases, severity can very easily be misplaced, especially when fraud is the panic of the moment. It is always the panic of the moment in which someone will be unjustly accused. It may be quite rightly the panic of the moment, it may need eradicating, but it does not make it any the better for
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    the person who is unjustly convicted. In that respect, at least, it is like witchcraft. Has the Minister anything to say?
    Lord Bassam of Brighton: I was reflecting on what the noble Earl said. Many years ago I had to make a social security claim arid I remember thinking at the time that it was quite easy to give incorrect information. I found that the officials dealing with the case—I am talking about when I was in my 20s—were extremely sympathetic and sensitive to that point.
    Baroness Hollis of Heigham: The rest is history.
    Lord Bassam of Brighton: The rest is history. That is true. I doubt whether they have changed. The important point here is that the Inland Revenue will have to form a judgment based on reasonableness and it will have to positively demonstrate fraud or negligence. As I said earlier, there is no penalty for making an innocent mistake.
    I believe that we can rely on the good sense and the good nature of the civil servants who will have to process these matters. They will make a case-by-case judgment—just as they made a judgment in my case that I was not being deliberately dishonest—and I am sure that that will inform the way in which they work. If the Revenue's decision is disputed by the claimant, he or she will have recourse to appeals and will have the facility for the question of their dishonesty to be judged by an independent tribunal. That important failsafe is there. That in itself will inform the way in which the Inland Revenue makes its decision.
    With those safeguards, and based on my personal experience, I believe that there is sufficient protection and caveats for the noble Earl to be satisfied on this issue.
    Earl Russell: I thank the noble Lord for a powerful reply and for an extremely generous admission. If I can be reasonably confident that officials will continue to interpret the law as they did in the noble Lord's case, I shall be satisfied.
    However, I should like to leave the issue with one word of warning. That this is now the proof that we are tougher than the next party on fraud must not lead us to forget the existence of perfectly genuine cases and that each decision must be made on an individual basis. It cannot be only a matter of needing to prove that we are tough on fraud or needing to prove that we are men. One must be prepared to find whatever the evidence leads one to. With that single caveat, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 177 not moved.]
    Lord Bassam of Brightonmoved Amendment No. 178:
    Page 19, line 44. after "16(3)" insert ", (Decisions after final notice)(10)"
    The noble Lord said: We have been over this territory before. This is a government amendment which is required as a result of earlier changes in the

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    Bill. I shall try that reassurance. We always say in these circumstances that it is consequential and reinforce that by drawing attention to the fact that it pulls into the fourth category of amendments that we have agreed to use as a standard point of reference—that is that it divides out the notice of the end of year statement provisions from the decision that the board makes on entitlement after the year. I shall not detain the Committee any further on that point. I beg to move.
    Lord Higgins: Nor shall I detain the Committee.
    On Question, amendment agreed to.
    4.45 p.m.
    The Earl of Northeskmoved Amendment No. 179
    Page 20, line 1, leave out "£3,000" and insert "£5,000"
    The noble Earl said: I shall also speak to Amendments Nos. 180 and 183. The amendments would increase the maximum penalty for people defrauding the tax credit system from £3,000 to £5,000. For the convenience of the noble Earl, Lord Russell, who regrettably is no longer in his place, I will take his antipathy to the amendment as read.
    Leaving aside the problems of distinction between fraud and neglect, the position emanates from two points of principle that I have touched on earlier. First, the severity of the maximum penalty should be in keeping with the seriousness of the crime: that is, of fraud. Secondly, the penalty regime should be rigorous enough to act as a deterrent to those who are minded to commit fraud. I am, of course, aware that the current maximum penalty for the ordinary tax system is £3,000 and that therefore the Government might be minded to wish consistency with that. Albeit that this may be too simplistic a suggestion, however, there are reasons for supposing that the appropriate way forward would be to level the maximum penalty at £5,000 throughout the system rather than £3,000. I beg to move.
    Lord Bassam of Brighton: When we looked at these matters in preparing the Bill we considered carefully the level at which maximum civil penalties should be set. Many penalties for fraudulent or negligent behaviour within the existing tax and tax credits systems are already set at a maximum of £3,000. Based on experience, we have no reason to believe that that amount has become inadequate, and we would not wish to provide more stringent penalties for tax credit claimants than would apply to similar behaviour in relation to tax obligations. We do not want to depart from that consistency. That is an important principle in itself and perhaps adds to the principles to which the noble Earl alluded.
    An important point to recall is that the penalty is applicable in respect of each claim, so where someone has persisted in making incorrect statements over a period of time, the total maximum penalty could be much higher than £3,000. There is also still the
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    sanction of criminal prosecution in cases of serious and organised fraud. Clause 33 introduces the criminal offence of tax credits fraud.
    We have sought to get the balance right between encouraging people to take up their entitlement and having adequate safeguards against non-compliance. We believe that Clause 29 achieves that balance and provides for a realistic deterrent against those who behave fraudulently or negligently in connection with tax credit claims. We are not convinced that increasing the maximum penalty to £5,000—out of line with existing penalties for making false statements—would be justified.
    It is right that we should have a system that is rigorous and measures the seriousness of these things, and we believe that, on balance, we have exactly that. If we depart from that principle of consistency, as I have enunciated, we would perhaps undermine the overall effect of seeking to be rigorous while also seeking to be fair.
    The Earl of Northesk: I am grateful to the noble Lord. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 180 to 183 not moved.]
    Clause 29, as amended, agreed to.
    [Amendment No. 184 not moved.]
    Clause 30 [Failure to comply with requirements.]:
    Lord Bassam of Brightonmoved Amendment No. 185:
    Page 20, line 28, after "16(3)" insert ", (Decisions after final notice)(10)"
    The noble Lord said: These amendments are also consequential and are the product of changes made earlier in the Bill. They are necessary because of the changes made to the provisions of Clause 17, which has been split into two clauses. In that sense they also fit into the fourth category for splitting entitlement decisions. I do not wish to add to those points because they are now well understood by the Committee. I beg to move.
    On Question, amendment agreed to.
    Lord Bassam of Brightonmoved Amendment No. 186:
    Page 20, line 31, leave out "or (4)(a)" and insert ", (4)(a) or (6)(a)"
    On Question, amendment agreed to.
    Clause 30, as amended, agreed to.
    Clause 31 agreed to.
    Clause 32 [Supplementary]:
    [Amendment No. 187 not moved.]
    Clause 32 agreed to.
    Schedule 2 [Penalties: supplementary]:
    Lord Bassam of Brightonmoved Amendment No. 188:
    Page 40, line 4, after "General" insert "Commissioners"
    On Question, amendment agreed to.
    Lord Bassam of Brightonmoved Amendment No. 189:
    Page 40, line 29, leave out "an award of a tax credit" and insert "a tax credit for a person or persons for the whole or part of a tax year"
    The noble Lord said: Again, noble Lords will be familiar with the fact that a number of amendments are needed as a result of the fact that a distinction between an award of a tax credit and entitlement to that credit needed to be drawn more clearly. In this instance, these amendments fall into category one. With that brief explanation, I beg to move.
    Lord Higgins: I think it is the case that dividing these various amendments into different categories has proved very helpful in that it has speeded up our proceedings and has given them greater shape. The noble Baroness has been extremely helpful on a number of occasions, not only on this Bill but on others, in providing draft regulations and so on. I wonder if it might be possible—I do not ask for an immediate response—for her simply to provide us at the end of our proceedings and before Report stage a list of which amendments fall into the various categories. Otherwise we shall have to grind through Hansard ticking them off.
    Baroness Hollis of Heigham: I shall be delighted to provide a list.
    Lord Higgins: I thank the noble Baroness.
    On Question, amendment agreed to.
    Lord Bassam of Brightonmoved Amendment No. 190:
    Page 40, line 31, leave out ", or commence proceedings for it,"
    The noble Lord said: This amendment has already been debated outside this group. The six amendments in this group follow on consecutively; namely, Amendments Nos. 191 to 196. They all fall into category one.
    On Question, amendment agreed to.
    Lord Bassam of Brightonmoved Amendment No. 191:
    Page 40, line 34, leave out "into the award under section 18" and insert "under section 18 into the entitlement of the person, or the joint entitlement of the persons, for the tax year"
    On Question, amendment agreed to.
    Lord Bassam of Brightonmoved Amendments Nos. 192 to 196:
    Page 40, line 35, leave out from "if" to ", the" and insert "such an enquiry is made"
    Page 40, line 38, leave out "award" and insert "entitlement of the person, or the joint entitlement of the persons, for the tax year"
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    Page 40, line 41, leave out "an award of a tax credit" and insert "a tax credit for a person or persons for the whole or part of a tax year"
    Page 40, line 44, leave out. "award" and insert "entitlement of the person, or the joint entitlement of the persons, for the tax year"
    Page 41, line 2, leave out "into the award under that section"
    On Question, amendments agreed to.
    Schedule 2, as amended, agreed to.
    Clause 33 [Offence of fraud]:
    The Earl of Northeskmoved Amendment No. 197:
    Page 21, line 40, leave out "seven" and insert "ten"
    The noble Earl said: In moving Amendment No. 197, I speak also to Amendment No. 198. We have already had a detailed debate of the principles underlying these amendments earlier. I do not suppose that the Minister will view them any more favourably than he did previously. Accordingly, I do not propose to detain the Committee for long.
    Amendment No. 197 increases the maximum prison sentence available to courts in cases of fraud against the tax credit system from seven to 10 years, while Amendment No. 198 introduces a new clause defining the offence of aggravated tax credit fraud aimed at those who repeatedly commit fraud or obtain large sums from the system.
    The principles on which these amendments are based are well enough known to the Committee. None the less, I would like to make two substantive points. First, in rejecting a similar proposition in another place, the Financial Secretary argued that,
    "Dealing with the mischief is not made more effective simply by ratcheting up the national sentence".
    He promptly undermined, if not contradicted, that position by alluding to
    "the common law offence of cheating the public revenue: that can and will be used in appropriate circumstances. It allows the court to pass whatever period of imprisonment it feels is appropriate—there is no maximum sentence". [Official Report, Commons, 7/2/02; col. 1109]
    In other words—this may be of interest to Liberal Democrats—the regime the Government have in mind for the most determined and serious cases of fraud has no maximum sentence.
    Secondly, reliance on the existence of the offence of cheating the public revenue fundamentally misses the point. What is at issue here is the clarity of the message that we deliver to those who have in mind to commit a serious act of fraud against the tax credit system. If I may borrow a phrase from a different context: that message must be "clear and unambiguous". We contend that the most effective way to secure this, as well as achieving an element of deterrent, is to add a specifically targeted offence to the Bill. Potential fraudsters would then be under no illusions as to the consequence of their actions. I beg to move.
    Lord Bassam of Brighton: I make the point again that I do not think there is a difference between Members of the Committee in seeking to be tough on fraud. Clearly, these measures and amendments are designed to demonstrate toughness. There is no

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    difference between us in trying to get to the bottom of fraud and the way in which it can, subtly and otherwise, undermine the credibility of the system.
    Amendment No. 197 relates to Clause 33 and would introduce the specific offence of fraudulently obtaining tax credits. This currently has a maximum sentence of seven years' imprisonment, in line with the criminal offence of fraudulently evading income tax, which was introduced by the Finance Act 2000. The amendment would increase the maximum sentence for tax credit fraud to ten years.
    The amendment is unnecessary for two reasons. First— the noble Earl ought to think about this in relation to what a court will in fact do—experience shows that it is unlikely that any court will pass a sentence for tax or tax credit fraud in excess of or even close to seven years. I know it is historical, but I do not remember Ernest Saunders spending a great deal of time behind bars for what many people probably considered to be major fraud offences. Secondly, if there were a case of tax credit fraud that was so exceptional and abhorrent that a sentence in excess of seven years might seem appropriate, it would still be possible for the perpetrator to be charged with the common law offence of cheating the public revenue. This allows the court to pass whatever period of imprisonment it feels appropriate—a point drawn to our attention by the noble Earl. There is no maximum sentence.
    I hope, therefore, that the noble Earl will accept that while we support his objectives, the amendment is unnecessary and will add nothing to what is already available.
    In Amendment No. 198 the noble Earl proposes a new criminal offence for what he calls aggravated tax credit fraud, which would mean cases in which more than a specified sum of tax credits was at stake or in which there had been a previous fraud offence within the past five years in relation to tax credits or social security. It would open the way to a higher maximum sentence upon indictment.
    Members of the Committee will no doubt be aware that our policy on tax credit fraud is, in the majority of cases, to use civil penalties backed up by selective prosecutions to act as a firm deterrent against fraud. Cases in which there have been repeat offences are already part of the Revenue's published criteria for selecting cases for prosecution. Moreover the courts take any previous offences and the size of any fraud into account when setting sentence. However, experience shows that it is unusual for any court to pass a sentence for tax or tax credit fraud in excess of seven years, regardless of how aggravating the circumstances might be.
    As I have mentioned, there is an avenue available for dealing with particularly serious cases of the kind that the noble Earl has instanced or in which a sentence of more than seven years might seem appropriate. It is possible for the perpetrator to be charged with a common law offence of cheating the public Revenue. This allows the court to pass whatever period of imprisonment it feels is appropriate.
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    The noble Earl may be interested to know that one of the most serious cases of tax fraud in recent years was in February 2001, when Michael Richard Stannard, a tax barrister, was found guilty of cheating the public purse out of nearly £3.2 million. In that case, the judge made the following observation:
    "The profit was considerable and the punishment must reflect such gains. Other aggravating factors are the abuse of public trust by a professional man".
    His sentence was four-and-a-half years. No tax credit fraud has ever attracted a sentence that long. Thus, doubling the length of sentence, as suggested by the noble Lord would, I believe, appear somewhat pointless.
    The Earl of Northesk: I am grateful for the response from the Minister. If the Revenue are going to rely on the common law offence of cheating the public Revenue, that does beg the question: what is the useful purpose of Clause 33?
    Lord Bassam of Brighton: It is not a case of relying on it. The common law offence is there and it can be used. The point that it can be used as a backstop.
    The Earl of Northesk: That is somewhat at variance with the comments of the Financial Secretary in another place. However, I do not want to prolong our proceedings at this stage. For the moment, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 33 agreed to.
    [Amendment No. 198 not moved.]
    Clause 34 [Powers in relation to documents]:
    The Earl of Northeskmoved Amendment No. 199:
    Page 22, line 8, leave out "serious"
    The noble Earl said: I beg to move Amendment No. 199, for one purpose only. Earlier in our proceedings the Minister was wholly resistant to drawing any distinction between fault and negligence. I wonder, therefore, why in this particular clause the word "serious" is used. I should like an explanation of the Government's thinking in limiting the powers of the Revenue to investigate only "serious" fraud, when that distinction is not used elsewhere in the Bill. I beg to move.
    5 p.m.
    Lord Bassam of Brighton: Clause 34 applies to tax credit fraud and confers two sets of powers to apply in relation to serious tax fraud. The first set of powers involves the production of documents. These powers are applied in respect of all tax credit fraud.
    The second set of powers involves the entry of premises with a warrant to search for documents. This second set of powers is applied only in respect of serious tax credit fraud. The noble Earl's amendment seeks to apply the second set of powers to all tax credit fraud.
    The powers in this clause are new powers in relation to tax credit fraud. They do not currently exist in relation to working families' tax credit, but we felt that

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    they were necessary to deal with the problem of organised criminal gangs engaged in tax credit frauds. These are significant powers which will be used only by specially trained officers from the Inland Revenue Special Compliance Office. The question of using them in normal tax credit inquiries will, we believe, never arise.
    However, as with any extension of powers, we have thought very carefully about the justification for the extension. We believe that all fraud is serious, whether it is a tax fraud or a tax credit fraud. To the extent that "serious" adds anything, it limits the powers to cases involving large amounts of money. There are natural limits to any one individual's tax credit entitlement and we do not believe that it would be right to limit the power to require the production of documents to cases of serious tax credit fraud. This is because there may be many factors in an individual claim that are indicative of organised fraud but the actual sums of money known to be in question at the time that the documents are required to be produced might not warrant the tag "serious".
    However, the position will be different for search powers. It is clearly much more intrusive physically to enter someone's premises and search for documents than it is simply to require them to produce documents. We have therefore been more cautious about extending these powers. We believe that the powers allowing the entry of premises should apply only if the sums of money involved are such that the Inland Revenue is in a position to demonstrate to a judge reasonable grounds for believing that there is serious tax fraud.
    These are not clear cut decisions and this is an area which should be approached with some caution. We have to balance the reasonable rights of the citizen against the need to tackle those who deliberately set out to cheat the tax credit system in an organised way. We feel that the provisions in Clause 34 strike the right balance. For those reasons I urge the noble Lord to withdraw the amendment.
    The Earl of Northesk: I am grateful for that answer. Perhaps I may press the Minister on a couple of points. What is the definition of "serious" in the Government's mind? Would it include instances of organised crime committing fraud against tax credits?
    Lord Bassam of Brighton: Of course.
    The Earl of Northesk: The noble Lord indicated that there was a figure that the Government had in mind as to where was the cut off for "serious" or "not serious". Can the noble Lord help us on that point?
    Lord Bassam of Brighton: As to the first point, I thought that I had made it clear that, yes, we do believe that organised criminal gangs come under the definition of "serious". As to the second point, it is very much a matter for the courts and is court-led.
    Earl of Northesk: I thank the Minister for his resonse. I shall look carefully at what he carefully at what he said in Hansard. In the meantime, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
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    Clause 34 agreed to.
    Clause 35 [Interest]:
    [Amendment No. 200 not moved.]
    Baroness Hollis of Heighammoved Amendment No. 201:
    Page 22, line 27, leave out "a date thirty days after the time" and insert "the date thirty days after the appropriate date
    (2A) "The appropriate date" is—

    (a) in the case of an amount treated as an overpayment by virtue of section 27(6), the date of the decision under section 16 to terminate the award, and

    (b) in any other case, the date"

    On Question, amendment agreed to.
    Lord Bassam of Brightonmoved Amendment No. 202:
    Page 22, line 29, leave out "for the period"
    The noble Lord said: This is another of those consequential amendments. In this instance it falls into the now infamous category one. I beg to move.
    On Question, amendment agreed to.
    Clause 35, as amended, agreed to.
    Clause 36 [Appeals]:
    Baroness Hollis of Heighammoved Amendment No. 203:
    Page 23, line 6, leave out "17" and insert "(Decisions after final notice)"
    The noble Baroness said: In moving Amendment No. 203, I shall speak also to Amendments Nos. 204 to 209. Using the categories, which we are grateful to Members of the Committee for accepting, this group of amendments does two things: it continues to make the distinction between awards and entitlement under category one; and, because of category four, has the consequential effect of splitting Clause 17. I beg to move.
    Lord Higgins: Do they all cover both sections or are some of them specific to Clause 17?
    Baroness Hollis of Heigham: Amendments Nos. 203 and 205 refer to Clause 17. The rest are in the first category relating to awards and entitlement. I am doing this on the wing and if I have made a mistake I will write to the noble Lord.
    To make the situation clear, Amendments Nos. 203, 205, 206 and 208 are about the splitting of Clause 17. Amendments Nos. 204, 207 and 208 are about the separation between entitlements and awards.
    On Question, amendment agreed to.
    Baroness Hollis of Heighammoved Amendements Nos. 204 to 209:
    Page 23, line 7, leave out "period" and insert "tax year and any revision of that decision under that section"
    Page 23, line 10, leave out "17" and insert"(Decisions after final notice)"

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    Page 23, line 11, leave out from "decision" to "in" in line 12 and insert "must be made under subsection (6) of section (Decisions after final notice)"
    Page 23, line 13, leave out "period" and insert "tax year"
    Page 23, line 14. leave out "(6)" and insert "(1)"
    Page 23, line 15, leave out "period" and insert "tax year"
    On Question, amendments agreed to.
    Clause 36 agreed to.
    Clause 37 [Exercise of right of appeal]:
    Baroness Hollis of Heighammoved Amendment No. 210:
    Page 23, line 19, at end insert "(or, in the case of a decision to which section 22(3) applies, the date of the decision)"
    On Question, amendment agreed to.
    Earl Russellmoved Amendment No. 211:
    Page 23, line 19, at end insert—
    "() The Secretary of State shall have discretion to allow an appeal out of time where the delay was caused by illness or other circumstances not within the control of the claimant."
    The noble Earl said: The amendment deals with the question of appeals out of time. It would protect the case for the claimant whose appeal is out of time because of illness or other circumstances outside the claimant's control. The general line of argument is familiar to the Minister. There are cases in which one simply is not capable of appealing in time, rape victims, for example, are frequently unable to tell their story within the normal time. It is a normal human phenomenon; we are not going to change it. Since we are not going to change it, we might as well live with it on rather more generous terms than we sometimes do. I beg to move.
    Lord Higgins: This seems an admirable amendment and no doubt we will have a sympathetic response from the noble Baroness. If she is going to respond sympathetically, perhaps she could tell us who is going to exercise such discretion, since I doubt whether the Secretary of State personally will be involved.
    Baroness Hollis of Heigham: This amendment would allow appeals to be made more than 30 days after the notice of a decision is issued. I agree with the sentiment behind it. There are obviously cases in which it is inappropriate to refuse an appeal that has strictly been made out of time. I am equally delighted to say that this mechanism already exists under Section 49 of the Taxes Management Act 1970, which allows someone to ask the Inland Revenue to accept a late appeal if there was a reasonable excuse—what we would call in social security a good cause—for not making the appeal under the time limit.
    In response to the noble Lord, Lord Higgins, under that section the matter is decided by the commissioners if the Inland Revenue does not agree with the appellant. Obviously there are transitional arrangements, but even so the ability to accept late
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    appeals continues. I hope that noble Lords are reassured by the fact that current law goes further than the amendment.
    Earl Russell: I am delighted by the Minister's response. I have one further question. Does the Taxes Management Act apply to every part of the matter covered by the Bill, regardless of whether it crosses the line, which exists so clearly in the minds of some people, between tax and benefits?
    Lord Higgins: I also have one rider to add. Does the existing legislation apply equally to payments as well as receipts?
    Baroness Hollis of Heigham: I do not know whether the noble Lord is taking me beyond tax credits, but that is certainly the case once responsibility for the appeals transition period is over. The noble Lord's question may have a meaning other than the superficial, perhaps applying to behaviour. The situation should be fine once the transitional arrangements have finished. It applies to Part 1 tax credits, not to child benefit. I do not know whether that helps him. In other words, it applies to all taxes and tax credits—including those that he prefers to describe as benefits—apart from child benefit. We are about to come to the clauses on child benefit and it may be better if we deal with those under the Clause 44 stand part debate.
    Earl Russell: I am most grateful to the noble Lord, Lord Higgins, for his support. I am grateful to the Minister for her very kind words. Perhaps we might leave it to the Minister's discretion between now and Report to see whether any further tidying up in this area is needed. It is something I am entirely prepared to trust to her judgment. Meanwhile, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Baroness Hollis of Heighammoved Amendment No. 212:
    Page 23, line 21, leave out "shall be" and insert "is"
    On Question, amendment agreed to.
    Baroness Hollis of Heighammoved Amendment No. 213:
    Page 23, line 28, after second "the" insert "General Commissioners or Special"
    On Question, amendment agreed to.
    Clause 37, as amended, agreed to.
    5.15 p.m.
    Baroness Hollis of Heighammoved Amendment No. 214:
    Before Clause 38, insert the following new clause—
    "ANNUAL REVIEW
    (1) The Treasury must, in each tax year, review the amounts specified in subsection (2) in order to determine whether they have retained their value in relation to the general level of prices in the United Kingdom as estimated by the Treasury in such manner as it considers appropriate.

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    (2) The amounts are monetary amounts prescribed—

    (a) under subsection (1)(a) of section 7,

    (b) for the purposes of any of paragraphs (a) to (d) of subsection (3) of that section,

    (c) under section 9,

    (d) under section 11, otherwise than by virtue of section 12. or

    (e) under subsection (2) of section 13, otherwise than by virtue of subsection (3) of that section.

    (3) The Treasury must prepare a report of each review.
    (4) The report must include a statement of what each amount would be if it had fully retained its value.
    (5) The Treasury must publish the report and lay a copy of it before each House of Parliament."
    On Question, amendment agreed to.
    Clause 38 [Persons subject to immigration control]:
    On Question, Whether Clause 38 shall stand part of the Bill?
    Earl Russell: This is a very little clause but there is possibly a great deal contained within it. It may be that the Minister will attempt to reassure me that this is in part the result of the style of draftsmanship favoured at the moment—the catch-all style of draftsmanship which is designed to provide for every contingency. Certainly, as drafted, this clause covers an awful lot. It deals with persons subject to immigration control and it says,
    "Regulations may make provision in relation to persons subject to immigration control or in relation to prescribed descriptions of such persons"—
    which could mean all sorts of things—
    "for excluding entitlement to, or to a prescribed element of, child tax credit or working tax credit (or both), or … for this Part to apply subject to other prescribed modifications".
    It then says that,
    "'Person subject to immigration control' has the same meaning as in section 115 of the Immigration and Asylum Act 1999".
    There is not much that a Secretary of State could not do under that clause. The Minister will no doubt come back with an answer that relates firmly to her present intention. It is possible that what she has to say about her present intention may be perfectly acceptable. I keep an open mind on that until I have heard it. What is certain is that the Minister is not going to be in office several centuries hence.
    This Act may remain on the books for goodness knows how long and it does allow people to respond to grand panic and change everything that they have in the rules simply—if I may so put it—with a stroke of the pen. That is a temptation into which Ministers should not be led.
    It is no good telling me that there are certain things which simply will not be done. Most of the way through my political life, in fact before it began in any serious sense, right back to the Kenya Asians in 1977, things have been done to persons subject to immigration control which I had believed all my life up to that point no British Government could ever possibly have done. I can still remember David Frost, on "That Was The Week That Was", appearing
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    accompanied by a laurel wreath labelled "British Passport Second Class"—a clear crib from the opening shot of "Passport to Pimlico".
    It is no good telling me, therefore, that these powers will not be abused, though they could be abused. We have no idea who is going to be in office in this country 30 or 40 years hence. I think we should not lead them into temptation. The Minister should tell us what she wants to do with the clause. Then we could have bands which would probably allow her to do what she wants.
    If she is not satisfied with that. then we could consider another course. However, we should not include in the Bill a Cambyses clause under which the Secretary of State may do whatever he likes. Parliaments do not always like what Secretaries of State seek to do. If they confer Secretaries of State with such a power, then in effect that is an act of abdication, something which this Parliament ought not to do. We are not in the business of trusting the executive to that extent. I beg to move.
    Baroness Hollis of Heigham: I wish to make two opening points. First, these powers in essence continue the existing powers introduced under the existing tax credits legislation, but in a new format for reasons that I shall explain. Secondly, the regulatory powers attached to them, which the noble Lord queries, were regarded as satisfactory by the Delegated Powers and Regulatory Reform Committee. I know that that committee puts the concerns of the noble Earl high on its agenda if it believes that any powers may be used improperly. It may he helpful to add a little further detail to the first of my points.
    Clause 38 provides for regulations to be made about the access of people subject to immigration control to tax credit. Rules about immigration control are a matter for the Home Office set out under existing legislation, in particular the Immigration and Asylum Act 1999, to which the clause refers. The cross-reference made in the clause is very precise to the legislation from which it is drawn. Therefore, should any changes in Home Office legislation be made, then either amending legislation or regulatory reform orders would be required.
    The rules about immigration are a matter for the Home Office and are set out in existing legislation. The noble Earl will know that it is a longstanding requirement of the immigration rules that those coming to the United Kingdom should be able to support themselves without recourse to public funds. For this reason, persons subject to immigration control are not able to claim WFTC and DPTC. We shall bring forward appropriate regulations in due course.
    A power to make regulations has been taken because it would not in itself have been sufficient simply to insert references to working tax credit and child tax credit in the Immigration and Asylum Act 1999. Working tax credit and child tax credit would be claimed jointly by members of a couple—which is why we need an assignment—rather than by a particular individual on behalf of the couple, as is currently the case with regard to income support, income-based

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    jobseeker's allowance, WFTC and DPTC. I know that the noble Earl welcomes the joint claim, which is why we have to introduce this further amendment.
    Where only one partner in a couple is a person subject to immigration control, it will be necessary to modify the provisions of Part 1 in so far as they relate to the treatment of couples to make clear how the other partner is to be treated. It is also likely that other rules such as those concerned with the engagement of the claimant in qualifying remunerative work and his or her responsibility for a child, will require modification.
    I repeat, the clause does not introduce any new principle of policy. Quite properly, it makes clear on the face of the Bill that, in line with the established approach under the immigration rules, persons subject to immigration control may be excluded from entitlement to the new tax credits. In doing so, it goes no further than the approach already taken with regard to a range of different systems of support under existing legislation, but it does allow us to make some modifications to the provisions of Part 1 to ensure that cases where we need to treat differently the two people comprising a couple—because only one is subject to immigration control—are dealt with appropriately.
    There is nothing new in the clause. The regulations have been accepted as appropriate by the Delegated Powers and Regulatory Reform Committee. With those reassurances, I hope that the noble Earl will feel able to withdraw his proposal that the clause should not stand part of the Bill.
    Earl Russell: If the noble Baroness were prepared to draft a clause saying precisely what she said she intended to do: that people subject to immigration control are to support themselves without recourse to public funds, and that we need further regulations to make this apply to joint claims by couples, I would not say a word to oppose such a clause. However, I do not understand why the clause is so widely drafted that it will allow that policy intention to take place. I do not see, for example, why we need to refer to,
    "prescribed descriptions of such persons".
    That invites a distinction by nationality which, though it probably would not fall foul of the European Convention on Human Rights, would not necessarily be understood to do so in the Home Office. Its decision-making in relation to immigration is, I believe, the worst part of any interim decision-making in British government. Nor has the Minister filled me with confidence by saying these powers have been here before. I alluded at the beginning of my speech to policy introduced in 1977. This country's record in the whole of the second half of my lifetime on questions relating to asylum and immigration has done more to make me ashamed of my country than anything else done by a British government since the invasion of Suez. To say that it is not new will not do anything to reassure me. Nothing short of a more tightly defined set of vires would do that, but in the meantime I see no point in further using up the Committee's time today and I beg leave to withdraw the amendment for the time being.
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    Amendment, by leave, withdrawn.
    Clause 38 agreed to.
    Clauses 39 to 43 agreed to.
    Schedule 3 [Tax credits: consequential amendments]:
    Baroness Hollis of Heighammoved Amendment No. 215:
    Page 42, line 2, at end insert—
    "Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8))
    3A The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 has effect subject to the following amendments.
    3B In Article 3(1)(b) (persons eligible for advice and assistance), for the words after "income support" substitute "or an income-based jobseeker's allowance (payable under the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (N.I. 15)))."
    3C In Article 7(2) (contributions from persons receiving advice or assistance), for the words from ", an income-based" to "family credit" substitute "or an income-based jobseeker's allowance (payable under the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (NJ. 15)))".
    3D In Article 14(5) (assessment of disposable capital and income and of maximum contribution), for the words after "income support" substitute "or an income-based jobseeker's allowance (payable under the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (N.I. 15))).""
    The noble Baroness said: Amendment No. 215 is technical, but does not fit within the four categories. I hope that the noble Lord, Lord Higgins, will be pleased that I have to invent a fifth category, making sure that there is a read-across to Northern Ireland. The amendment simply makes consequential amendments to the Legal Aid, Advice and Assistance (Northern Ireland) Order by removing references to family credit. As a result of the Tax Credits Act 1999, those references are taken to be references to WFTC, which will be abolished by the Bill, leaving the references redundant. Similar references to DPTC are contained in secondary legislation, which is a matter for the Lord Chancellor's Department. With that explanation, I hope that the Committee will accept these minor consequential amendments. I beg to move.
    Lord Higgins: These are more than little consequential amendments. To start with, they do not seem to be consequential on anything that has happened before. They seem to be somewhat standalone amendments. Again, they bring out the extraordinary extent to which the draftsman or draftsmen—it may have changed over time—have failed to introduce a sensible Bill. It seems extraordinary that they should be unaware of this point and perhaps even more surprising that the Minister in another place, Dawn Primarolo, also appeared equally unaware of the significance for Northern Ireland.

    CWH 221
    More generally, where do the relevant legal aid considerations for the rest of the United Kingdom appear? I understand that the Bill implements legal aid provisions for Northern Ireland, but I am not clear where the legal aid provisions for England, Wales and Scotland appear.
    Baroness Hollis of Heigham: This is a matter for the devolved administrations and negotiations have been going on. The provisions for Scotland are contained in paragraphs 6, 7 and 8 of Schedule 3. I understand that we do not need anything for the UK, because legal aid in England and Wales is a matter for secondary legislation made by the Lord Chancellor's Department, not a matter for the Bill.
    I am sorry to give such a hesitant response but the noble Lord caught me on that one. Northern Ireland is covered by this amendment; Scotland in Schedule 3, page 42, paragraphs 6 to 8; and it is not necessary for England and Wales as it comes under secondary legislation from the Lord Chancellor's Department.
    Lord Higgins: I am not clear why the Lord Chancellor's Department was aware of the Tax Credits Bill as we have not yet passed it. How do the powers of the Lord Chancellor's Department include the provisions for tax credits which at the moment do not exist? Are we to have some subsequent legislation, secondary or otherwise, from the Lord Chancellor's Department? Would it not be more convenient, as far as England is concerned, to include it in the Bill?
    As regards the delegated side of the matter, there is a reference on page 42 to the Legal Aid (Scotland) Act 1986. Was Scotland devolved in 1986?
    Baroness Hollis of Heigham: The Legal Aid (Scotland) Act 1986 contains references to WFTC:—it cannot be 1986; it must be 1996—and DPTC which should become redundant. Therefore it is good practice to remove those references. However, the provision of legal aid and assistance in Scotland is a matter for the Scottish Parliament. I understand that a review is currently taking place.
    Lord Higgins: WFTC did not exist in 1986.
    Baroness Hollis of Heigham: That is why I changed it to 1996. Perhaps I may write to the noble Lord. I quite agree with him. It states that the Legal Aid (Scotland) Act contains references which become redundant. That must be because WFTC and DPTC replaced family credit. That is my understanding, but if I am wrong I will come back to the noble Lord on that.
    Lord Higgins: We are still left with the problem that we have got this new schedule in at this late stage when no one in the House of Commons appears to have noticed it at all. However, I look forward to receiving the Minister's letter.
    Baroness Hollis of Heigham: It is conventional that we do read-across where need be to Northern Ireland. I take the point that perhaps this could have been done earlier. That is all that is going on here. I apologise for
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    faltering on the implications for England. Scotland and Wales and so on, but that had not crossed our bailiwick as a particular matter of concern.
    On Question, amendment agreed to.
    Baroness Hollis of Heighammoved Amendment No. 216:
    Page 44, line 35, leave out "under an award made"
    The noble Baroness said: I beg to move.
    Lord Higgins: In which category is Amendment No. 216? Amendments Nos. 219, 224 and 227 are government amendments.
    Baroness Hollis of Heigham: Amendments Nos. 216, 219, 224 and 227 make the distinction between awards and entitlement. They are therefore category one.
    On Question, amendment agreed to.
    Baroness Hollis of Heighammoved Amendment No. 217:
    Page 44, line 37, at end insert—
    "22A In section 39(1), (2) and (3) (rate of widowed mother's allowance and widow's pension), for "sections 44 and" continue to substitute "sections 44 to"."
    The noble Baroness said: I am afraid we come back again to my fifth category. Amendments Nos. 217, 218, 220, 221, 225, 226, 228 and 229 are minor technical amendments which are consequential on the repeal of Section 45A of the Social Security Contributions and Benefits Act 1992 and its Northern Ireland counterpart. Those repeals are effected by Amendments Nos. 220 and 228 respectively.
    Section 45A of the 1992 Act, as amended consequentially, provides that WFTC and DPTC may be taken into account when calculating the earnings factor relating to SERF'S entitlement. There are two reasons why this subsection is now redundant. First, the abolition of WFTC and DPTC; and, secondly., the reforming of SERPS through SS2, the state second pension.
    The abolition of WFTC and DPTC would not in itself make Section 45A redundant. Indeed, the Bill contained an amended version of that section which is now removed by Amendment No. 220, and by Amendment No. 228 in regard to Northern Ireland. The amended version of Section 45A is not needed because SERPS is reformed through the state second pension from 2002/2003. Therefore the new tax credits will never have any effect on the earnings factor for SERFS. Thus, Section 45A is repealed and these amendments simply remove any consequential references to that section in the 1992 Act. It is very technical; it simply seeks to leave the legislation in a clear position, free of redundant references. I hope that will address the concerns of the Committee. I beg to move.
    Lord Higgins: I understand that non-reference to SERFS. But where is the reference to the state second pension?
    Baroness Hollis of Heigham: That is not relevant because the state second pension carries those powers within it.
    On Question, amendment agreed to.
    Baroness Hollis of Heighammoved Amendments Nos. 218 to 221:
    Page 44, line 39, at end insert—
    "23A In section 39C(1), (3) and (4) (rate of widowed parent's allowance and bereavement allowance), for "45A" substitute "45"."
    Page 45, line 20, leave out "under an award made"
    Page 45, line 21, leave out paragraph 25
    Page 45, line 46, at end insert—
    "25A In section 48BB(5) and (6) (entitlement to category B retirement pension by reference to certain benefits), for "45A" substitute "45".
    25B In section 51(2) and (3) (category B retirement pension for widowers), for "45A" substitute "45"."
    On Question, amendments agreed to.
    [Amendment No. 222 not moved.]
    Earl Russellmoved Amendment No. 223:
    Page 46, line 4, at end insert—
    "(4) In sections 170 and 172 to 174 (except section 172 (5)) of that Act, at all places where it appears—
    (a) after "Secretary of State" insert "or Treasury"; and
    (b) for "his functions" substitute "their functions".
    (5) In section 170 (5) of that Act, after paragraph (b) insert—
    "() the provisions of the Tax Credits Act 2002"."
    The noble Earl said: I rise to move this amendment for three purposes: first, to thank the Minister very warmly for tabling Amendment No. 255 which is grouped with it; secondly, to listen to the Minister explaining the reasons why Amendment No. 255 achieves our joint purpose better than my Amendment No. 223—there is a fairly high possibility that I might be convinced by what the Minister has to say on that subject; and, thirdly, simply to suggest that in any future transfer of these types of function from the Department for Work and Pensions to the Inland Revenue, it should go into the model articles for the drafting of Bills that there should be a reference to the Social Security Advisory Committee.
    Every time we have had a tax credits Bill, it has been moved from the Floor of the House; every time Ministers have accepted it; and every time legislation has been the better for it. It might therefore be better if this became part of the automatic practice on this subject. I thank the Minister very warmly. I beg to move.
    Lord Higgins: Perhaps I might say a word about Amendment No. 255 on advisory bodies and consultation in relation to the Social Security
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    Advisory Committee. As the noble Earl, Lord Russell, rightly pointed out, it has been omitted in some previous legislation.
    Baroness Hollis of Heigham: Amendment No. 255 was also tabled by the noble Earl, Lord Russell. There are no government amendments here.
    Lord Higgins: I was not referring to government amendments. I was referring to the noble Earl.
    Baroness Hollis of Heigham: The noble Earl, Lord Russell, indicated that Amendment No. 255 was a government one which therefore overtook his and I was trying to suggest that that was not the case.
    Lord Higgins: I think the noble Earl, if I may presume to say so, was mistaken in that.
    Amendment No. 255, as it appears on the Marshalled List, is a new clause after Clause 61 in the name of the noble Earl. I was seeking to support it, with some qualifications; namely—as he rightly points out—it is frequently the case that on other legislation reference to the Social Security Advisory Committee has been omitted, which he and I would both agree is perhaps unfortunate. What worries me about it is that, though on previous Bills we have succeeded in incorporating references to the Social Security Advisory Committee, it is only on very rare occasions that the Government ever seem to refer anything to it, or indeed to take its advice. Perhaps the Minister could tell me I am wrong about that.
    Baroness Hollis of Heigham: First, the rules are that the Government have to refer amendments to the Social Security Advisory Committee to see whether it wishes to consult on them if those amendments are being introduced more than six months after the primary legislation. That means that the regulations would be scrutinised within the framework of the Bill. Because the Government have been so effective in producing regulations so rapidly in conjunction with primary legislation, it may be that the Social Security Advisory Committee have less work to do as a result of the activity of your Lordships' House. That may be the explanation with regard to the noble Lord's second point.
    On his first point about the role of the Social Security Advisory Committee, I ask the noble Lord to withdraw his amendment because, in practice, we have an informal and good working relationship. The Social Security Advisory Committee is consulted and its views are taken into account informally by the Inland Revenue on matters such as WFTC and DPTC. The Social Security Advisory Committee was set up, however Secretary of State for Social Security, now the Department for Work and Pensions. It has no statutory basis of authority vis-à-vis the Inland Revenue or the Treasury.
    However, because of the pressure rightly expressed on previous Bills, and because of the recognition on all sides of the value of the committee's experience, it was consulted about the proposed introduction of these two new tax credits. Officials from the Inland

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    Revenue, the Treasury and the Department for Work and Pensions have met the Committee to discuss the Government's proposals. They are working together and, as far as I am aware, the relationship is entirely satisfactory.
    I hope that noble Lords will accept that the Board of Inland Revenue is a statutory body with statutory duties set out under the Inland Revenue Regulation Act 1890, with a clear line of accountability. The Social Security Advisory Committee is an entirely separate statutory body with different lines of accountability and different formal responsibilities. It works well and it is clear on its remit. In practice, however, informal consultation takes place on issues of inland revenue which would benefit from exposure to its experience.
    With those remarks, I hope that the noble Lord will feel able to withdraw both of his amendments.
    Lord Higgins: Why should the Social Security Advisory Committee not have the same status in relation to the Inland Revenue on matters which hitherto have been the responsibility of the Department for Work and Pensions, as they had with the Work and Pensions Department? Surely the Inland Revenue will be in need of advice on matters with which, until now, they have had nothing to do?
    Baroness Hollis of Heigham: It has worked very well since we established the WFTC and the DPTC. I have attended meetings of the Social Security Advisory Committee and not once has it complained that there was any problem with the arrangements we have established. As I have said, the Social Security Advisory Committee is a formal statutory body appointed by the Secretary of State for DWP and it cannot simultaneously have dual responsibility. In practice, however, the effective working between the two departments and the use of the Social Security Advisory Committee not only has not given rise to complaint, but seems to have been entirely satisfactory. If it is not broken, I suggest that we do not try to meddle with it.
    Earl Russell: First I must confess my error. It was a most palpable hit and I am sorry for it. I can only say that, as I am sure the Minister is aware, during the exam season academics tend to become rather cross-eyed.
    I accept what the Minister said about consultation between the Social Security Advisory Committee and the Inland Revenue, but the usefulness of the Social Security Advisory Committee is not limited to that role. When it produces a report, normally it is made available to the House. It is put in the Printed Paper Office at the same time as the regulations.
    It is a very common perception that the matter of this Bill is not particularly easy for the layman to understand. So a clear exposition by an independent body, before the Social Security Advisory Committee thinks about regulations under this Bill, could be of the very greatest use for our deliberations. That has happened in many other cases.
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    The principle of these amendments was conceded in working families' tax credits to my noble friend, Lord Goodhart. I am not aware that the Inland Revenue has tottered as a result. I do not see that there can be any really serious objection. If the line of accountability is an issue, perhaps the Treasury may claim—as it very often does—the power to consent to appointments made to the committee, which might be a perfectly fair quid pro quo. However, I think that there is still a matter to investigate, although we cannot take it any further today. I am not persuaded by all the Minister's arguments in spite of having been so palpably gentlemanly, as ever. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Baroness Hollis of Heighammoved Amendments Nos. 224 to 229:
    Page 46, line 34, leave out "under an award made"
    Page 46, line 36, at end insert—
    "31A In section 39(1), (2) and (3) (rate of widowed mother's allowance and widow's pension), for "sections 44 and" continue to substitute "sections 44 to"."
    Page 46, line 38, at end insert—
    "32A In section 39C(1), (3) and (4) (rate of widowed parent's allowance and bereavement allowance), for "45A" substitute"45"."
    Page 47, line 20, leave out "under an award made"
    Page 47, line 21, leave out paragraph 34.
    Page 47, line 46, at end insert—
    "34A In section 48BB(5) and (6) (entitlement to category B retirement pension by reference to certain benefits), for "45A" substitute "45".
    34B In section 51(2) and (3) (category B retirement pension for widowers), for "45A" substitute "45"."
    On Question, amendments agreed to.
    5.45 p.m.
    Baroness Hollis of Heighammoved Amendment No. 230
    Page 48, line 33, at end insert—
    "42A In Article 18C(7)(b) (direct payments), before "or of" insert ", of any element of child tax credit other than the family element, of working tax credit"."
    The noble Baroness said: This again is a group of minor, technical amendments consequential on the abolition of WFTC and DPTC and their replacement. They come into category five of read-acrosses to Northern Ireland. Amendments Nos. 230 and 245 go together to make consequential changes to Article 18C(7)(b) of the Children (Northern Ireland) Order 1995. That article allows those who have certain services paid for by a local authority on their behalf—primarily daycare services for children in particular need—and who receive the specified benefits or elements of tax credits set out in the article, not to have to repay the cost of those services to the local authority. They are analogous changes to that effect.

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    I can go into more detail if Members of the Committee wish. It is to ensure that the Northern Ireland legislation is congruent with these changes. I beg to move.
    On Question, amendment agreed to.
    Schedule 3, as amended, agreed to.
    Clause 44 [Interpretation]:
    Baroness Hollis of Heighammoved Amendment No. 231':
    Page 25, line 3, at end insert—
    ""the current year income" has the meaning given by section 7(4),"
    The noble Baroness said: In moving Amendment No. 231, I shall speak also to Amendment No. 233. We go back to our former category that the Committee has been happy to accept. This amendment removes references to "relevant income". In other words, it is category three. There is a separation between "current year" and "previous year" and it tidies up the drafting as a result. I beg to move.
    On Question, amendment agreed to.
    Baroness Hollis of Heighammoved Amendments Nos. 232 to 234:
    Page 25, line 11, at end insert "and (6)"
    Page 25, line 11, at end insert—
    ""the previous year income" has the meaning given by section 7(5),"
    Page 25, line 17, at end insert "(for the purposes of child tax credit) or by regulations under section 10(4) (for the purposes of working tax credit)"
    On Question, amendments agreed to.
    On Question, Whether Clause 44 shall stand part of the Bill?
    Lord Higgins: It would be helpful with this clause to take all the clauses that are listed in the grouping which is available to the Committee, which suggests that we should leave out not simply Clause 44 but a whole string of other clauses and schedules. This debate seeks to bring out the point to which we have referred on previous occasions; that is, the problems arising with regard to scrutiny of the Government's legislation and, in particular, the way in which your Lordships' House seems now to be assuming the role of the major scrutiniser of government legislation because of the so-called "modernisation programme" that is taking place.
    In making my remarks I in no way wish to criticise the other place; I wish to criticise the Government. If one looks at the events that followed the Second Reading of this Bill on 10th December in col. 683 in another place, one will see a heading which appears as "Tax Credits Bill Programme". It then sets out various provisions which shall apply to the Tax Credits Bill. Those were such that the Opposition felt it appropriate to vote against the programming motion. They were, perhaps not surprisingly, defeated by 314 votes to 155, reflecting the size of the Government's majority.
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    The reality is that the debate on these matters was so heavily curtailed that, I think without exception, the clauses that I have listed were not debated at all in another place. The matter comes to this House completely raw from that point of view. That is a very serious situation indeed.
    The Government are programming the proceedings in a way that in times past would have been regarded as a guillotine. Guillotines have been imposed in the past only when there has been an obvious filibuster from the Opposition, of whatever party, or for some other very extreme reason, as my noble friends who have been in another place will well remember. That was possible only after a full half-day's debate on the need for the guillotine.
    The programming of those proceedings, which affect the Bill as it now stands, involved no debate. The Motion was simply moved and the House divided forthwith, so there was no opportunity for the House to debate the matter and suggest that the amount of time that had been made available was inadequate. The programme was very stringent indeed, curtailing very considerably the proceedings in Standing Committee and the consideration on Report, for which it was said that consideration, so far as not previously concluded—that was pretty optimistic—be brought to a conclusion at 9 p.m. on the day on which the proceedings were commenced, or, if that day was a Thursday, at 6 p.m. This Bill has rightly preoccupied your Lordships here in the Committee for a considerable period of time, and is likely to do so again on Report and Third Reading, yet its consideration on Report in the Commons was restricted to a one-day debate terminating at 9 p.m. The Third Reading was also given a very short period of time, to conclude at 10 p.m. on the day on which the proceedings were commenced, or, if it was a Thursday, by 7 p.m. That was a wholly inadequate provision of time.
    There is no indication of any filibuster in the report of the Committee and Report stages in another place. On the contrary, Conservatives and Liberal Democrats sought to give the matter reasonable time for the debate and they did not have time available to look at the matter properly. Had they done so, we might not have had what I can only describe as the fiasco with the drafting of the Bill. Inevitably, given the pressures on Ministers, when they know that the Bill is going to be programmed they do not give it the attention that they might otherwise do because they have other priorities. As a result, the serious flaws in the Bill that have been so apparent during the course of our proceedings were not detected until the day before we were scheduled to start our proceedings in this place.
    It is also worth noting paragraph (2) of the Commons programme Motion:
    "All proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) shall be programmed."
    Given how tight the original programming was, that is a very stringent and inefficient provision. If the Government continue to proceed in that way, despite the efforts of your Lordships' House, the result will be

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    badly drafted, inadequately scrutinised legislation, with serious consequences that will result in revision subsequently.
    Of course it can be said that the Government's programme is heavy and that restraints on parliamentary time are limiting. However, if one looks along the corridor today, one is bound to say that one does not see an immense amount of activity. The other place is on holiday this week; we are not. Time could have been spent on scrutinising the clauses to which I refer. We shall need to consider, at some stage, whether this has not got out of hand and whether we need to reappraise the way in which Parliament is now being compelled—by the use of a large government majority—to consider legislation.
    We could consider various aspects of the individual clauses and no doubt we shall wish to do so when we come to Report stage. However, I shall take only one example, that of Schedule 5, which is included in the list before us. The schedule contains important provisions allowing the disclosure of information which otherwise would be in breach of the Data Protection Act, raising important issues with regard to the Human Rights Act 1998 and whether it is consistent with that legislation. No doubt we shall wish to return to this and other points when we come to our deliberations on Report.
    Having said that, one must consider why the Commons did not have an opportunity of raising that matter, along with the various ways in which the Human Rights Act may be contravened despite the attention to the matter given by the Minister herself in her remarks.
    This is a reflection of the extent to which the Government are seeking to ride roughshod over the parliamentary process, something which is greatly to be deplored. At some stage we need to reappraise the overall way in which this House is carrying out its duties and the way in which the Government are effecting their procedures in another place.
    Earl Russell: I thank the noble Lord, Lord Higgins, for introducing a subject which is, indeed, overdue for consideration. If I may say so, it is something in the region of four centuries overdue for consideration.
    The primacy of another place is an historical myth. What happened in 1688 was not that Parliament gained control of the executive, but that the executive, by an increase in its revenue from under £1 million to over £5 million, gained the power of patronage which allowed it to buy a majority in another place. Ever since, another place has come increasingly under the influence of the executive. When people refer, during discussion of the reform of this House, to the primacy of another place, what they really mean is the primacy of Her Majesty's Ministers as rubber stamps in another place. That dependency goes right back to the days of Sir Robert Walpole and probably well before. So this matter is certainly overdue for consideration.
    I know perfectly well that large parts of the Bills that come before us have never been considered in another place. The first Bill I considered here, the Education
    CWH 230
    Act 1988, dealt with my profession in a great many issues vital to myself and all my colleagues as a matter of survival. Out of 11 amendments I tabled to deal with those issues, only one touched on a clause which had been so much as discussed with a syllable in another place. There is nothing new in the idea that another place does not consider legislation.
    That said, I believe the problem does wider than simply the over-aggrandisement of the executive. The amount of business necessarily grows. That has been true for a long time. If one traces the statute book back to its earliest years—except for a blip under Henry VIII when it grew at the same speed as his waistline—it reveals a more or less steady exponential growth, getting faster as time goes by.
    The noble and learned Lord, Lord Simon of Glaisdale, had the statistics at his fingertips. I regret to say that I do not. But they are quite important. So something is going on here beyond simply governments accruing more power. Of course, life is getting more complicated and there are more things about which it is necessary to legislate and there are more things which become the responsibility of government—often rightly—and one cannot complain about that.
    There are, however, other reasons why the other place produces so much material, a great many of which are, to my mind, extremely persuasively set out in the report of the committee chaired by the noble Lord, Lord Renton—to whom I have often listened with profit and interest on this subject—on the preparation of legislation. That report was delivered in 1974.
    The noble Lord, Lord Richard, and the noble Lord, Lord Henderson of Brompton, were members of that committee. It was a high-powered committee. It stressed—the Minister is no doubt very familiar with my arguments but they are worth perhaps a little or the Committee's time—the tendency of governments to legislate in over great detail; the tendency of governments to treat a Bill like a toddler in leading reins and not to let it grow up and develop and take its form as it is shaped through judicial interpretation, but to insist, as the Committee put it, on controlling the interpretation, pre-judging the judgment of the judge in a case which has not yet arisen or been imagined.
    That leads to these catch-all clauses which take up much of our time. In a great many cases it leads to an attempt to proceed—the CSA in all its incarnations is a clear example of this—by over-exhaustive, total enumeration of detail. As soon as you attempt to proceed in that way, then you have to have another Act of Parliament in order to undo the last Act of Parliament.
    The noble Lord, Lord Bassam of Brighton, remembers this point being made in our discussion on transport regulations in the Chamber. He had the kindness to say that he thought much of what I said was right. This tendency towards over-prescriptive, over-detailed, over-fussy legislation is one which makes the problem of pressure on parliamentary time a great deal worse than it should be. We should be

    CWH 231
    prepared to leave a higher proportion of the task of legislation to the judges and to express points instead—as the committee of the noble Lord, Lord Renton, suggested—in terms of a general principle, which could then be applied, interpreted and fitted to the facts of a case—which a draftsman could not possibly foresee because it has not happened—as matters evolve. In that way, the statute wire, as it were, would be carrying a great deal less electric current and it would take up a great deal less time of the House. In that way we might all get on a great deal faster. Meanwhile, until that happy day arrives, it means that this House—equipped with power and teeth—is more essential than ever.
    6.00 p.m.
    Baroness Hollis of Heigham: I simply refuse to get into a debate, much as I would on another occasion— an Unstarred Question or whatever—about the relative roles and responsibilities of this House to the other. From the two speeches it would appear that the argument is for the House of Lords to increase its duties and responsibilities for scrutiny because, from different positions, both noble Lords seem to think that the House of Commons is defaulting on that same obligation. They seem to be arguing that if the House of Commons Back-Benchers fail to scrutinise the executive then they want a stronger House of Lords in order to do that.
    I simply do not accept that argument. It may be regrettable in the eyes of the noble Lord, Lord Higgins, and, for all I know, the noble Earl, Lord Russell, that the Opposition in the House of Commons is not more effective in holding the Government to account than it is. But if that is due to its numbers, that is because of the will of the electorate; and if it is due to its competence, that is because of the will of its own membership. In neither case would it be proper for someone like myself to comment.
    Baroness Byford: I wonder if the Minister would give way on that point? I am slightly alarmed by what she has just said. It is a fact that we are getting legislation coming through to this House which has not been considered by the other place at all. If I could refer the Minister back to the Countryside and Rights of Way Bill, where the whole section on the areas of outstanding natural beauty was never even discussed before the Bill came here; nor was it discussed when it went back. Certainly that is because a timed guillotine is put on legislation in the Commons. That is a fact. Whether we like it or not it is in being.
    Baroness Hollis of Heigham: That is a matter for the other House. It is quite improper for this House to say, "You should have done it differently and we will make good your default". We have a role as a scrutiny Chamber, but it is for the Commons to determine how to allocate its time and use its resources, and for the Opposition to hold the Government to account as they see fit. It is not for this House to try to displace or take over the role of Opposition Back-Benchers in the other place.
    CWH 232
    I am not going to go beyond that, because I am a proud supporter of the role of the House of Lords and I have always spoken up for the quality, integrity and effectiveness of the scrutiny role of this House. I do not want anybody to suggest other than that. However, it is wrong to assume that because there is some belief in this Chamber that the Commons is not doing its job, the House of Lords has to do the same job twice over. I wish simply to dissent from those views that seem to have been expressed here this afternoon.
    Points have been raised about child benefit. The noble Lord, Lord Higgins, is right to say that the House of Lords should look at this section of the Bill again. Obviously, I will look forward to any of the amendments that he chooses to table on Report. It is right that this House decides to scrutinise the whole Bill, whatever the previous House has done. That is independent of that activity.
    The all-party Social Security Select Committee supported moving child benefit from DWP to the Inland Revenue in its report in March 2001. The transfer was announced in June 2001. No objection was made to it and no press interest has followed. The consultation exercise did not raise any major issues. One reason for the lack of any systematic review of these clauses may be that they aroused no issues of controversy or concern in the other place. Certainly, none of that came up in the consultation exercise with the voluntary groups or at any stages when this issue was discussed by the Social Security Select Committee, chaired by Archy Kirkwood, whom I very much respect.
    Finally, I take issue with the view of the noble Earl, Lord Russell—this may not be a proper forum to discuss it—that all Bills should be framework Bills and it should be left essentially to the courts to interpret them through some Oakeshottian principle of growth. That would seem an entire abdication of Parliament's responsibility and of everything that I have been seeking to do for your Lordships—to produce regulations in time for you to see what the detail of legislation would look like, based on what is inevitably a framework Bill.
    Suppose I did not produce those regulations and said that it was for the courts to determine. What would the courts be determining? It would be minor things like income and income determinations, minor things like what counts as remunerative work or minor things like the meaning of responsibility for a child. That is not proper for judges to determine. It is proper for your Lordships and the other place to determine the regulations that flesh out the Bill, as they come through in affirmative or negative procedure, after proper scrutiny. Certainly, it is for the judges to determine whether the Executive is interpreting Parliament's intent—as set out in primary and secondary legislation—properly, fairly and decently in the context of British legislation and of data protection and human rights, to the extent that it is consistent with both of those.

    CWH 233
    It is for the judges to protect the individual citizen if they think that legislation laid down by Parliament has been improperly, unreasonably or unfairly applied in a particular case. That is the judgment and role of the courts, not to determine what the legislation means. That is for Parliament to determine. I hope we would never effectively abdicate secondary legislation for judges to determine through some inchoate Oakeshottian sense of gradualism and development and the like. That would be extremely dangerous and I suggest very strongly to your Lordships that you should not hear the siren call of the noble Earl, Lord Russell, to that extent.
    No specific points have been raised apart possibly from any criticism that may have been made of this transfer—and there have been none—and matters relating to human rights and data protection legislation, which are covered entirely properly by law. I do not think any particular points have been raised so far, but I look forward to your Lordships resuming their scrutiny of these clauses on Report.
    Earl Russell: The Minister's remarks about the courts show a remarkable indifference to that part of our law which rests on common law and not statute. It has always been, and remains, the responsibility of the judges to determine the meaning of phrases such as "fraud'", "negligence" or "nuisance". I do not see that it can he otherwise.
    Quite important developments in our law—such as that it was a nuisance to build a new housing estate without providing sewage—were actually made by the courts, in that case at the expense of my noble ancestor who was responsible for building Covent Garden. However, the fact that it was done at the expense of my noble ancestor does not make me think the principle improper. That was a perfectly reasonable way of proceeding.
    The needs and values of society have changed and the judges interpreted the law as they have in light of what they saw in front of them. If the Minister intends to put across her plan, she will take away from the law a very valuable way of responding to social circumstances as they change.
    The Minister talks about this House attempting to assume control. She knows perfectly well that, in the light of Parliament matters and in the light of our lack of financial privilege, such a thing is quite impossible. Incidentally, if she thinks a brief drafting of legislation is impossible, I advise her to take a good look at the Parliament Act 1911. The whole operative part of the Act is in a page and a half, and I have never found anything omitted in the drafting. Could any present-day draftsman match that?
    This is a debate that we must have on another occasion. We are not going to try to control the House of Commons but I believe that we are perfectly entitled to discharge our duty in the light of the way that they have discharged theirs. That is a liberty which circumstances must of necessity give us for as long as we shall continue to exist.
    Lord Higgins: First, I would not for one moment suggest other than that the Minister herself, as far as
    CWH 234
    legislation in our field is concerned, does a tremendous job. But it has been increasingly the case that we have had to do it because the other place has been prevented from doing it by the Government. It is not a question of the Opposition in another place not doing their job; it is that no one in the other place, regardless of their political affiliations, has been able to do a job in scrutinising this part of the legislation.
    It is not the case that one can simply say that a particular part of the Bill does not look very interesting, very controversial or very difficult. It is only when we start to debate the matter that we discover where the problems arise. That is so time and again. Therefore, we do not accept on this side the point that the noble Baroness made.
    Having said that, the dilemma we face is what to do with Bills which come to us, where we would scrutinise them in the normal way after the Commons has done so, when the other place has still not had an opportunity to do so. The question arises whether, if that is so—for example with regard to all these clauses, some of which raise important issues on human rights, data protection or whatever it may be—the answer simply is not to adopt a practice where, if it has not been scrutinised in another place and the view is taken in this place that it may raise important issues, one should simply bounce it back and forth until such time as the Commons does what I believe to be its job. Therefore, in light of this development, we should consider how we should proceed with. Bills of this kind.
    This is a particularly bad example. Because of the fiasco that took place in the drafting and the failure not simply of Opposition Members but of all other Back-Bench Members in the Commons to deal with it, being under a severe time restraint, the Bill was not scrutinised properly and the whole business about the gross mis-drafting did not come to light. In fact, the Minister—not dealing with it clause by clause herself in another place—did not realise that there were contradictions within the Bill. So this is a very serious matter. I have now had my say on it. We shall have to consider very carefully how to proceed.
    I should like to make one final point. I refer to a leader in The Times written about two weeks ago in relation to House of Lords reform. It contained a throwaway line which stated that:
    "Those in the House of Lords do not have the technical expertise to scrutinise legislation".
    I cannot imagine where the leader writer of The Times has been. He has only to consider the debates on the Floor of the House of Lords on subjects such as defence held a few days ago. There is an immense amount of expertise in this House, but that does not mean that those in the other place—some with expertise but some without—should not carry out the job the electorate has given them to do. The noble Baroness rightly says that of course they are elected and they are a majority. But the fact that they are a majority does not mean that they were elected not to do their job.
    Clause 44 agreed to.
    6.15 p.m.
    Clauses 45 to 47 agreed to.
    Schedule 4 agreed to.
    Clauses 48 and 49 agreed to.
    [Amendment No. 235 not moved.]
    Clauses 50 to 53 agreed to.
    Clause 54 [Administrative arrangements]:
    [Amendments Nos. 236 and 237 not moved.]
    Clause 54 agreed to.
    Clause 55 agreed to.
    Schedule 5 [Use and disclosure of information]:
    Baroness Byfordmoved Amendment No. 238:
    Page 55, line 8, leave out paragraph 9.
    The noble Baroness said: I beg to move Amendment No. 238 and speak at the same time to Amendment No. 239. I do not understand why health and education bodies want information about the receipt of tax credits. This is a probing amendment which seeks to draw from the Minister the thinking behind this rather strange manoeuvre.
    For example, guardians are very often not blood relatives to the child or children for whom they are responsible. I see no obvious connection between the receipt of benefit, the details supplied by the claimant to obtain that benefit and the health or education department's interests in the outcome. Particularly with regard to education, I see no possible connection in a country whose Prime Minister claimed five years ago that education was the number one priority and should be open to all, regardless of race, religion, background, vocation and any other variable.
    I fear that these clauses are but the thin end of a wedge aimed at splitting the shields that currently protect people's private information. If the clauses go through I predict that they will become a benchmark for moving personal details around the system at will. I might point out that in private business both the banks and recently a supermarket have experienced details of personal data becoming available in the public domain. That is why I am moving the amendment. I beg to move.
    Baroness Hollis of Heigham: Perhaps I might intervene. The reason that these powers are necessary is that those are the departments that give passports to benefits. Therefore if they do not have information about tax credit and income levels they cannot do it. That is why the powers are necessary. They are benign.
    The Earl of Northesk: This seems an appropriate place in which to make an observation. I need some clarification from the Minister. Here I return to an issue referred to by my noble friend Lord Higgins in a previous debate.
    Thus far the Bill has received very little attention as to its juxtaposition with the Data Protection Act 1998.
    CWH 236
    That is regrettable, if only because of the huge manipulations of data that it implies will take place once it is enacted.
    The noble Baroness will be aware that the first data protection principle states categorically that data can only be used for the purpose for which it was originally collected. This may give rise to all sorts of difficulties with the Government's proposition to integrate tax and benefits, which may relate to this part of the schedule.
    First, how do the Government propose to transfer relevant data between departments without breaching the first data protection principle? If we can think in terms of the Government's insistence on administering tax credits in the payroll, data so collected is properly the province of the Revenue. It is a amassed for tax purposes. Logically, therefore, application of the first data principle would suggest that it cannot subsequently be used as a mechanism for assessing appropriate levels of benefit. Thus, notwithstanding the previous comments from the Minister, are the Government absolutely certain that their proposals in the Bill are fully consistent with the Data Protection Act?
    Baroness Hollis of Heigham: Yes. Not only that, already DSS information—in other words, whether somebody is or is not receiving income support and so on—is a passport to free school dinners and to maximum housing benefit. Thus the information goes to the local authority and the like. If one did not have that one would be asking somebody who might have problems handling paperwork, bureaucracy and administration to deal with three, four, five or six different government departments as well as local authorities.
    So it is well established that information of this sort, which serves as a prod or a ticket or a flag to entitlement—what we would now call a passport to benefit—is conveyed to those authorities. I am just reminded that all disclosures under the powers of the Bill are either applied to the Inland Revenue and DWP or they have specific safeguards in the schedule itself. Without this, frankly, children would not receive free school dinners who are currently so entitled. Without it there would not be free prescriptions. There has to be a way of providing those benefits automatically. If people are asked to apply for them, first, they will not always do so and, secondly, there will be accentuated problems of stigma. We need these powers to protect children.
    Baroness Byford: I thank the Minister for her response. We have grave concerns on this issue but I hear her reassurances and at the moment I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 239 not moved.]
    Schedule 5 agreed to.
    Clause 56 agreed to.
    Schedule 6 [Repeals and revocations]:
    Baroness Hollis of Heighammoved Amendment No. 240:
    Page 58, line 47, column 2, at end insert⤔
    "In section 21(5A)(b), the words "and 45A(1)(a)"."
    The noble Baroness said: This is a group of minor and technical amendments that do not come within my existing four categories or the additional fifth, but they are consequential on the abolition of WFTC and DPTC and the replacement of SERPS with the state second pension. They relate to the same cluster of amendments as we talked about with Amendment No. 217. The main provision is the repeal of Section 45A of Social Security Contributions and Benefits Act 1992 and the Northern Ireland counterpart. Those repeals are effected by Amendments Nos. 220, 228 and others. They are technical and they are consequential. They do not fit into tidy categories, but they are necessary, given both the replacement of SERPS with state second pensions and the abolition of WFTC and DPTC. which has moved across to SERPS. I beg to move.
    On Question, amendment agreed to.
    Baroness Hollis of Heighammoved Amendments Nos. 241 to 248:
    Page 58, line 48, column 2, at end insert—
    "Section 45A."
    Page 60, line 6, column 2, at end insert—
    "In section 21 (5A)(b), the words "and 45A(1)(a)"."
    Page 60, line 7, column 2, at end insert—
    "Section 45A."
    Page 61, line 14, at end insert—
    "Pensions Act 1995 (c. 26) Section 127."
    Page 61, line 19, column 2, at end insert—
    "In Article 18C(7)(b), the words ", working families' tax credit or disabled person's tax credit"."
    Page 61, line 21, column 2, after "paragraphs" insert "2,"
    Page 61, line 22, at end insert—
    "Pensions (Northern Ireland) Order 1995 Article 124." (S.I. 1995/3213 (N.I. 22))
    Page 62, line 24, at end insert—
    "Criminal Injuries Compensation—Article 12(3)." (Northern Ireland) Order 2002 (S.I. 2002/796 (N.I. 1))
    On Question, amendments agreed to.
    Schedule 6, as amended, agreed to.
    Clause 57 [Commencement]:
    Lord Freemanmoved Amendment No. 249:
    Page 31, line 32, at end insert—
    "() No orders shall be made under this section until the Inland Revenue has published the following—

    (a) targets for the time to process claims;

    (b) details of the procedure to be followed to assess whether take-up by the disabled and those for whom English is not the first language has reached initial targets;

    (c) details of procedures to be followed to establish any emerging organisational deficiencies and how any conclusions are to be subsequently published; and

    CWH 238

    (d) policy to be followed in striking a balance between the need to make the system customer friendly and yet to have good compliance."

    The noble Lord said: Set out in this amendment are some examples of information that claimants and claimants' organisations would wish to know, and which it is legitimate for them to know. One appreciates that a Bill is an enabling measure and administration follows. To a certain extent, we get ahead of ourselves, however. My noble friend Lord Higgins has referred to the fact that we have had a great raft of government amendments at a very late stage. The Minister has been very helpful with draft regulations, for which we are very grateful, but explanatory notes and procedural notes need to follow. In an ideal world, if we had a draft Bill which either a Committee of this House or a Joint Committee could consider, some of these problems could disappear.
    I will be very brief. This is a point of principle and it is a probing amendment. All these issues that I have detailed in my amendments are points that the Inland Revenue will already have decided before commencement. They do not raise issues of principle, but the principle is whether they should be published and put into the public domain before commencement of the Act. I appreciate that it may not be normal constitutional practice to put this kind of amendment on the face of the Bill, but some indication from the Minister would be much appreciated as to when this information-either as an amendment to Clause 57 or in some other way-will enter the public domain. I beg to move.
    Baroness Hollis of Heigham: I can give the noble Lord a very quick reply, or an extremely long one. Let me try a quick reply and see whether it meets his concern, which is that the Paymaster General will be setting the Revenue clear targets, including some of the items exemplified by him as part of its public service and service delivery agreement. The Revenue's key operational targets, and its performance against those targets, are published in the board's annual report to Parliament. I may have said enough to meet the noble Lord's concerns. If not, perhaps he could press them further.
    Lord Freeman: I am grateful to the Minister for that very helpful reply. I am mindful of the fact that it might be for the help, guidance and convenience of this Committee if there could be broader dissemination of the longer response that the Minister had intended, in written form, outside Committee.
    Baroness Hollis of Heigham: I shall be happy to do that.
    Lord Freeman: It would be most helpful. The point about the subsequent reporting of the board is ex post rather than ex ante and therefore does not answer my point, although the main thrust of it does. I am most grateful to the Minister and I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 57 agreed to.
    Clause 58 agreed to.
    Baroness Hollis of Heighammoved Amendment No. 250:
    After Clause 58, insert the following new clause—
    "TRANSITORY ARRANGEMENTS: APPELLATE ETC. FUNCTIONS OF COMMISSIONERS
    (1) Until such day as the Treasury may by order appoint, Part 1 of this Act has effect subject to the modifications specified in this section; and an order under this subsection may include any transitional provisions or savings which appear appropriate.
    (2) Except in the case of an appeal against an employer penalty, an appeal under section 36 is to an appeal tribunal (rather than to the General Commissioners or Special Commissioners).
    (3) The function of giving a direction under section 18(10) is a function of an appeal tribunal (rather than of the General Commissioners or Special Commissioners).
    (4) Except in the case of an employer information penalty, proceedings under paragraph 3 of Schedule 2 are by way of information made to an appeal tribunal (rather than to the General Commissioners or Special Commissioners).
    (5) So far as is appropriate in consequence of subsections (2) to (4)—

    (a) the references to the General Commissioners or Special Commissioners in sections 18(10) and 37(5) and paragraphs 2 and 3(2) of Schedule 2 are to the appeal tribunal, and

    (b) subsections (3) and (4) of section 37 do not apply.

    (6) An appeal under paragraph 2(2) or 4(1) of Schedule 2 from a decision of, or against the determination of a penalty by, an appeal tribunal lies to a Social Security Commissioner (rather than to the High Court or Court of Session).
    (7) So far as is appropriate in consequence of subsection (6), the references in paragraphs 2(2) and 4 of Schedule 2 to the High Court and the Court of Session are to the Social Security Commissioner.
    (8) Regulations may apply any provision contained in—

    (a) Chapter 2 of Part 1 of the Social Security Act 1998 (c. 14) (social security appeals: Great Britain),

    (b) Chapter 2 of Part 2 of the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)) (social security appeals: Northern Ireland), or

    (c) section 54 of the Taxes Management Act 1970 (c. 9) (settling of appeals by agreement),

    in relation to appeals which, by virtue of this section, are to an appeal tribunal or lie to a Social Security Commissioner, but subject to such modifications as are prescribed.
    (9) Except in the case of appeals against employer penalties, subsections (6) and (7) of section 37 do not apply.
    (10) "Appeal tribunal" means an appeal tribunal constituted—

    (a) in Great Britain, under Chapter 1 of Part 1 of the Social Security Act 1998 (c. 14), or

    (b) in Northern Ireland, under Chapter 1 of Part 2 of the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)).

    (11) "Employer penalty" means—

    (a) a penalty under section 29 or 30 relating to a requirement imposed by virtue of regulations under section 24, or

    (b) a penalty under section 31.

    CWH 240
    (12) "Employer information penalty" means a penalty under section 30(2)(a) relating to a requirement imposed by virtue of regulations under section 24.
    (13) "Social Security Commissioner" means—

    (a) in Great Britain, the Chief Social Security Commissioner or any other Social Security Commissioner appointed under the Social Security Act 1998 (c. 14) or a tribunal of three or more Commissioners constituted under section 16(7) of that Act, and

    (b) in Northern Ireland, the Chief Social Security Commissioner or any other Social Security Commissioner appointed under the Social Security Administration (Northern Ireland) Act 1992 (c. 8) or a tribunal of two or more Commissioners constituted under Article 16(7) of the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10))."

    On Question, amendment agreed to.
    Clause 59 agreed to.
    Clause 60 [Regulations, orders and schemes]:
    Baroness Hollis of Heighammoved Amendment No. 251:
    Page 32, line 37, after "37(6)" insert "or (Transitory arrangements: appellate etc. functions of Commissioners)(8)"
    On Question, amendment agreed to.
    [Amendments Nos. 252 and 253 not moved.]
    Clause 60, as amended, agreed to.
    Clause 61 [Parliamentary etc. control of instruments]:
    Baroness Hollis of Heighammoved Amendment No. 254:
    Page 33, line 29, at end insert—
    "(A1) No regulations to which this subsection applies may be made unless a draft of the instrument containing them (whether or not together with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.
    (A2) Subsection (A1) applies to—

    (a) regulations prescribing monetary amounts that are required to be reviewed under section (Annual review),

    (b) regulations made by virtue of subsection (2) of section 12 prescribing the amount in excess of which charges are not taken into account for the purposes of that subsection, and

    (c) the first regulations made under sections 7(8) and (8A), 9, 11, 12 and 13(2).

    The noble Baroness said: I return to a promise I gave at Second Reading, which was to bring forward a government amendment to introduce the affirmative reg procedure on the negative procedure for some regulations. I hope that the Committee will be happy to accept this.
    On Question, amendment agreed to.
    Clause 61, as amended, agreed to.
    [Amendment No. 255 not moved.]
    Clauses 62 to 65 agreed to.
    Bill reported with amendments.
    The Committee adjourned at twenty-seven minutes before seven o'clock.

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