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Lord Dormand of Easington: I wonder whether my noble and learned friend could help a non-legal person like myself on two matters which arise on Amendment No. 195? I see that "five years" is mentioned on two occasions, so there must be some significance in that. I believe three years would be adequate for this purpose, that is to say, chairing a panel. Nor do I have the faintest idea what Section 71 of the Courts and Legal Services Act 1990 means, although perhaps your Lordships are all very familiar with it.
A second, perhaps more important, question is whether my noble and learned friend can tell me, from his long and very esteemed experience in the legal profession, what would be the supply of barristers or solicitors with that qualification or standing. The last thing the Minister would want is a delay in settling some of these matters.
Lord Archer of Sandwell: As to the first matter which my noble friend raised, we had to have some criterion of who would be a qualified lawyer for this purpose. I settled on someone who would be entitled to appear in one of the higher courts, but I would not go to the stake on that. If someone were to say a three-year qualification was sufficient, I would be easily persuaded.
As to whether there will be a sufficient supply of lawyers, that is a matter which has troubled us and it may be one of the matters which is troubling the department. Normally it ought not to be difficult for a local education authority to find a local solicitor who is able to give one afternoon of his time for an appeal of this kind. There are not a very large number of appeals; they are not happening every day, as my noble friend knows. I cannot believe that there is great difficulty in obtaining someone with suitable qualifications; but I await to hear what my noble friend says about this before forming a definite conclusion.
Lord Swinfen: I would support the noble and learned Lord's group of amendments. It is quite obvious that these appeal panels should be run properly. Throughout this section of the Bill, however, we have been hearing of a great many people who are excluded--excluded probably because they have special education needs. I can see nothing on the face of the Bill that says the panel has to have among its members anyone with expertise and knowledge on special education needs. I would have thought that the process of excluding a pupil is the first stage in making certain that the pupil's education is carried on in a satisfactory manner elsewhere or, if the appeal against exclusion is granted, in that school.
We have been told that 20 per cent. of pupils in schools may have special education needs and that a high proportion of that group become excluded. I believe that there should therefore be provision within the Bill for a member of the panel having expertise in special education needs.
Lord Tope: May I start with a point of agreement with the noble and learned Lord, Lord Archer, on the importance of training. Probably all of us would accept that in important work like this it is vital that people should be properly trained to understand the issues and the process. To that extent I would agree with Amendment No. 196 although, were it to be pursued, I would suggest that the time for the training is after the appointment but before the members sit on the panel. In practice, that is usually the more appropriate time. It is certainly the case in local authorities, which train councillors after they become councillors but before they undertake the duties for which they are specifically trained.
That leads me on to my next point, which is where I begin to have considerable difficulty with what is being proposed here. Local authorities have a huge number of appeal panels of one sort or another, whether dealing with housing benefit, council tax review or a range of matters under social services, many of which are at least as difficult as school exclusions and quite often dealing with the same people. Local education departments have a range of appeal panels on school allocations, and so on. A principle of all of those panels, which from my understanding of Schedule 18 is repeated here, is that they are essentially lay panels, are advised by professional officers and should certainly include professional legal advice. Having proper access to proper advice for what is essentially a lay panel is
I do not think anyone, even the Council of Tribunals, would suggest that every local authority appeal panel, of whatever nature, of whatever title, should necessarily be chaired by a lawyer. If they were to be chairing a body like this, there are certainly other bodies within a local authority, particularly within social services, which would find such chairing necessary. That is wrong and unnecessary. The proper role is that laid down in the schedule for a lay panel, to be properly trained as a lay panel but to be advised by professional advisers, whether they be lawyers, people with expertise and experience in education and, in particular, special education. That is the correct nature of the panel.
I have one final semi-serious point to make. The schedule provides for local authorities to fix the level of remuneration. There has already been some question as to whether we should find lawyers with three years' or five years' experience. My experience of local authority remuneration leads me to believe that no lawyer with any experience will be prepared to act for that sort of money.
That is a semi-serious point. Much more serious is the fact that I believe that Amendment No. 195 changes significantly the nature of this panel and other panels which are operated by local authorities. I believe that that is unnecessary and regrettable.
Baroness Blackstone: I shall deal first with Amendment No. 195 to which my noble and learned friend attached quite a lot of importance. Clearly, the permanent exclusion of pupils has an enormous effect on their lives and those making such decisions need to have the skills necessary to judge whether permanent exclusion is appropriate.
However, as my noble friend Lord Dormand implied, it is extremely important also that the appeal panel members are able to meet at short notice and have the flexibility to meet at a time which is convenient to the parents and those other parties who are entitled to attend the hearing.
We consider that introducing a requirement that the chairman be legally qualified may make it difficult to convene a hearing within the strict time limit which applies in exclusion cases. However, it may help my noble and learned friend if I say that we shall use guidance to emphasise the importance of having a suitably qualified chairman and to emphasise that a legal qualification will often be an advantage. I accept, however, what the noble Lord, Lord Tope, said that lay panels of this sort can and should be able to obtain professional legal advice when they need it. I accept also that it may sometimes be rather expensive if all those panels--and there are approximately 1,200 per year--are to be chaired by legally qualified chairmen who may require rather higher fees than lay chairmen.
I turn now to Amendments Nos. 196 and 220. We recognise the importance of training for appeal panel members and agree that they must be very clear about their roles and responsibilities. Under provisions in the Bill, LEAs and governing bodies will be required to have regard to guidance contained in the statutory code of practice on admissions. Guidance in the code will cover the constitution and procedures to be followed by admission appeals panels. We shall of course consult our partners in education on the draft code and the new guidance on exclusions. The Council on Tribunals will be one of the bodies which the Secretary of State consults.
We expect the guidance on both admissions and exclusions to stress the importance of training for panel members and to say that LEAs and other admission authorities should ensure that members have had that training before they serve. We know from the council's own research that there is already a great deal of good practice on training but we acknowledge that there are probably areas for improvement. We hope to draw on existing good practice and make improvements where necessary.
My officials are working closely with the Judicial Studies Board to take forward work in that area. The board's recent course on tribunal skills was extremely well attended by education appeal members. Almost half the places went to educational panel members funded by my department. We have earmarked funding to look at the training for admission appeals panels and we are discussing with the Judicial Studies Board how best we should address the training needs of panel members. That may be through regional training events which my department will organise or through the development of a training module to be used by LEAs and governing bodies.
The initiatives that we are taking and the money that we are putting into training for panel members demonstrates the importance that we attach to it. We believe that that is a better approach than more statutory requirements on the face of the Bill.
Similarly, Amendments Nos. 197 and 221 would have the effect of requiring LEAs or governing bodies to nominate the person to be the chairman of an appeals panel which hears both exclusion and admissions appeals. The Government plan to use guidance to cover the appointment of certain panel members to act as chairmen. That will state that in the case of exclusion appeals the LEA should appoint the chairman and in the case of admission appeals the appointment should be made by the admissions authority.
We considered whether the attendance of LEA or governing body observers should be limited to cases where the parties agree. However, we concluded that it may not be in the interests of justice to give a party an absolute right of veto. I hope that in view of those government amendments, my noble and learned friend will not wish to pursue his amendments.
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