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House of Lords

Tuesday, 1 November 2011.

2.30 pm

Prayers-read by the Lord Bishop of Bath and Wells.

Coroner Service

Question

2.36 pm

Asked By Baroness Miller of Chilthorne Domer

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government received 135 consultation responses, of which 16 were from organisations representing the bereaved. We are concurrently considering these responses, and we intend to publish our response to the consultation in December.

Baroness Miller of Chilthorne Domer: My Lords, the Minister will remember that the idea of the charter was that it would create a standard of service for bereaved people. He will be aware that the Government now propose a general charter for anyone coming into contact with the coroner service. What does he say to the likes of the father of Adrian Pullman, now himself dying of cancer, who has waited eight years for an inquest into why his five year-old only son was found dead in a swimming pool on a local authority care break? Does the Minister recall that in 2009, when we debated the Coroners and Justice Act, the coroner's office involved said, "We have a lot of cases but this will be given a bit of priority because of the delay, but I cannot foresee it being heard before the end of the year"? It has still not been heard. Can the Minister say what in the Government's revised proposals would mean that a bereaved father no longer had to wait eight years for an inquest?

Lord McNally: My Lords, let us be clear that in a system such as this delays are sometimes unavoidable; for example, because of ongoing criminal or other investigations or, in some cases, because of the family's wishes. We want to ensure as efficient a system as possible. As part of that, we believe that the measures in the Coroners and Justice Act 2009 which we are implementing will help to reduce delays. We will also publish a wider range of statistics about the coroner system than we presently collect, drawing on our experience of service personnel inquests, where the quarterly publication of statistics has helped to eliminate delays throughout England and Wales.



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Baroness Finlay of Llandaff:My Lords, how many complaints were received last year about the proceedings and delays in the coroners' courts and how are they informing the revision of the charter, given that some coroners feel that the aspirations set in the charter are unrealistic in situations such as when a second post-mortem needs to be performed?

Lord McNally: I do not have those figures, but I will write to the noble Baroness. Everything we have done in studying this process is aimed at improving the efficiency of the system. I do not think that the simple removal from the reforms of the single post of chief coroner removes the fact that we are implementing the Coroners and Justice Act 2009. We have reviewed very thoroughly. We have consulted very thoroughly, as the noble Baroness knows very well, and we believe that our reforms will bring the improvements that the original Act sought to do.

Lord Bach: My Lords, just two years ago, the consensus in this House and in the other place was that the chief coroner was an essential part of a new coronial system. In spite of the views of this House, and of many outside, including the Royal British Legion, why are the Government still insistent on not appointing a chief coroner, who would be an important part of the reforms that Parliament agreed by consensus?

Lord McNally: A Government is allowed to look at an issue, examine widely, listen, consult, and then make a decision in the context of the financial circumstances it finds at the end. My right honourable friend the Lord Chancellor has decided that the immediate appointment of a chief coroner is not justified in the present circumstances. After listening to the various representations, we left the title of chief coroner in Schedule 5 to the Bill when it returned from the other place, and that will allow this House, the other place and the outside organisations to judge whether we are still able to carry through the bulk of the 2009 Act without the chief coroner. We believe we can, and by our deeds you can judge us.

Lord Thomas of Gresford: The charter will not be statutory so how will it be enforced?

Lord McNally: The Coroners and Justice Act 2009 provides for the Lord Chancellor to issue statutory guidance about the way in which the system operates, specifically in relation to bereaved families. We plan to revise the charter when we implement the coroner provisions in the Act and at that stage we will give the revised charter the status of statutory guidance.

The Lord Bishop of Bath and Wells: My Lords, in view of the Government's declared objective of putting the bereaved at the heart of the inquest process, will the charter make provision for the special circumstances affecting communication with families whose loved ones have died in the custody of the state, and will it take into account the submissions made by the organisation INQUEST?



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Lord McNally: Indeed, we have been in regular contact with INQUEST and those are exactly the kinds of issues for which we hope the new charter will enable the bereaved to have direct redress if problems arise. Let us be clear: as much as the previous Government, we want an efficient coroner service that allows bereaved people full information about a process which is always going to be stressful. It really is our full intention to try to make this system work along the main lines of the 2009 Act, but without a chief coroner.

Lord Rooker: Does the Minister accept that the Question asked by the noble Baroness was a first-class use of Question Time in bringing a long-standing individual grievance to the Floor of Parliament? Without knowing anything about the circumstances, would it not have been appropriate for the Minister at least to have said that he will go away and look into this?

Lord McNally: It may have been. I am not so sure that it is a proper use of Question Time to expect the Minister to know about an individual, personal case, which I fully understand for the individuals concerned must be extremely serious. One of the things that I do, as the noble Lord probably did as a Minister, is have a washing-up session after Question Time to see what needs to be followed up. However, I do not intend ever at this Dispatch Box to use personal cases either for attack or defence.

Baroness Farrington of Ribbleton: My Lords, will the Minister explain to the House how the Government determine priorities? We are talking here about a consensus across the other place and your Lordships' House on the importance of this post. The issue has been raised by the noble Baroness, Lady Miller, on many occasions in this House. Yet, the Government pray in aid being careful with money while railroading through police and crime commissioners, who will cost millions and for whom there is no consensus outside. Where are the Government's priorities when it comes to this sort of issue?

Lord McNally: I have already explained the process. I do not think that the noble Baroness, Lady Finlay, my noble friend Lady Miller or other noble Lords have said that the Government have not been available to discuss matters or to go through the process with them. Just as when the noble Baroness was a member of the previous Government, the Government are entitled to make a judgment on a matter and to put it to the House. This matter will return to this place and the House will then have to make a decision. It is simply not true that we have not listened. We have made substantial changes to the implementation of the Coroners and Justice Act, so much so that I believe that I can stand up the claim that we are implementing the bulk of the 2009 Act. But our judgment is that a chief coroner is not needed in post at this moment. We have left it in the Bill so that a judgment can be made at a later stage. But at this stage the Government's judgment is that we should not go ahead with a chief coroner. At a later stage, when the Bill returns to the House, I will defend that position.



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Health: Funding

Question

2.46 pm

Asked By Lord Roberts of Llandudno

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, in the future it will be the role of the NHS Commissioning Board to act as the steward of NHS resources in England, including managing the structure of payments for NHS services. During the transition to the new NHS structure, officials from the Department of Health are working with colleagues from the devolved Administrations to understand and resolve any issues which are arising as the result of the devolution of the responsibility for healthcare.

Lord Roberts of Llandudno: I thank the Minister for that reply. Will he give us an assurance that no person needing medical attention, wherever they are in the United Kingdom, shall be denied the very best attention possible, and that in order to facilitate that-and I have some indication that this is already happening-there should be immediate discussions between the devolved health administrations and here to make sure that neither funding nor procedure nor anything else will prevent the best treatment for patients wherever they are in this kingdom?

Earl Howe: I fully agree with my noble friend that the same principles should apply across the United Kingdom as regards access to NHS treatment and facilities. The majority of cross-border flows occur in relation to Welsh patients coming in to England, and I am not aware that there are particular problems there. The Department of Health and the Welsh Government have agreed a protocol for cross-border healthcare commissioning, to define commissioning and payment arrangements for those living along the border. I believe that that is working well.

Lord Wigley: My Lords, is the Minister aware that there are numerous cross-border issues between the north Wales area and the Liverpool and Manchester area, where many people get their services and treatments? Is he aware that the NHS policy changes currently being pursued in England are estimated to have a knock-on negative effect of no less than £11.5 million on the Betsi Cadwaladr health board, which serves the north Wales area? In those circumstances, is it not imperative that the health departments in Wales and England work together very closely indeed so that our health board can plan safe and sustainable services for all the people living in north Wales?

Earl Howe: Yes, I agree with the noble Lord. It is important that officials from both Wales and England have a dialogue to ensure that problems do not arise of

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the kind that the noble Lord refers to. Having said which, I repeat that the protocol that currently exists, and the funding that we in England give to the Welsh Government to compensate for differences in prices between either side of the border, serve to ensure that patients are treated promptly and as they should be.

Lord Jones: Does the Minister fully comprehend that the border between England and Wales is over 200 miles long; that the bulk of the population of Wales is in the east; and that historically there has always been access-for example, from north-east Wales-to the great hospitals of Christie in Manchester, Broadgreen in Liverpool and Alder Hey in Wirral? Does he fully comprehend the current anxiety? It is the wish of the mass of the population that they should have access to these hospitals-hospitals of access and excellence-and that Ministers in England should take a generous and understanding attitude to the wishes of a population who have always had access to the excellence of these great hospitals, of which the people of north-east Wales are very fond.

Earl Howe: My Lords, I appreciate everything that the noble Lord has said. He may like to know that the protocol to which I have referred states as follows:

"The patient's safety and well-being must be paramount at all times. No treatment must be refused or delayed due to uncertainty or ambiguity as to which"-

local health board or PCT-

I think that that should give patients in Wales every reassurance.

Lord Elystan-Morgan: My Lords, does the Minister accept that there is one very specific matter in relation to transborder matters in Wales, and that is in relation to Powys? Despite strategic policy decisions of many years ago, Powys has never had a district general hospital, with the result that there is a very considerable flow from north-east Powys to hospitals in the Shrewsbury and Telford area. Will he give an undertaking that, whatever happens, that system will continue?

Earl Howe: My Lords, nothing in the Government's plans will impede the flow of Welsh patients into England. I can give the noble Lord that reassurance.

Baroness Randerson: The increased sensitivity to local needs which will be created by the reorganisation of the health service is to be welcomed, but in practice there will be more organisations involved which will need to co-operate. Does the Minister agree that this will need strong ministerial guidance for all affected organisations to follow if individual patients are not to suffer delays?

Earl Howe: I agree with my noble friend. The NHS Commissioning Board will have a duty to consider the likely impact of commissioning decisions on the provision of health services to people living close to the border with England, wherever they may be.



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Lord Foulkes of Cumnock: Did I catch the Minister's first answer right-did he say that it would be the new head of commissioning who would have this responsibility? Am I right in saying that this is the professor who was described by MPs as not having the experience necessary and not understanding the job of head of commissioning, and who was only approved by the committee in the House of Commons on the casting vote of the chairman? Is this the guy who is going to be responsible?

Earl Howe: My Lords, the chief executive-designate of the NHS Commissioning Board is Sir David Nicholson, who is currently chief executive of the NHS. He is not the gentleman to whom the noble Lord referred. He currently runs the NHS. Professor Malcolm Grant, to whom I think the noble Lord was referring, will be chairman of the NHS Commissioning Board Authority, in a non-executive capacity.

Baroness Thornton: My Lords, I think it is time that we brought Scotland, Wales and Northern Ireland into this Question, since they are actually part of the Question. So, on behalf of the rest of the UK, it is my understanding that essentially the same responsibilities and powers rest on the Secretary of State in England and the Ministers of Health in Scotland and in Wales. My question to the Minister is how do the Government intend to reconcile, manage and co-ordinate accountability to patients on cross-border concerns?

Earl Howe: My Lords, the accountability is currently, as the noble Baroness will know, fairly complicated. Patients who are resident in England are the responsibility of their local PCT and patients with a Welsh GP are the responsibility of the Welsh local health board. That leads to an anomaly where patients who are resident in England but who have a Welsh GP are the legal responsibility of two commissioners, while patients resident in Wales with an English GP are not the responsibility of any commissioner. The situation is much clearer in Scotland because patients resident in Scotland but registered with an English GP are the responsibility of Scotland, and that is very clear. None of that will change as a result of the Government's reforms.

Legal System: Translation and Interpreting Services

Question

2.55 pm

Asked By Baroness Coussins

Baroness Coussins: My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and I declare interests as chair of the All-Party Parliamentary Group on Modern Languages and honorary fellow of the Chartered Institute of Linguists.



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The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Ministry of Justice has been looking at this matter for some time and has identified a number of issues that call for change. They include the limited number of linguists available for use, an inefficient and costly booking process, and concerns over the quality of service and complaint investigation. The ministry has therefore announced that it will be moving to a framework agreement with a single supplier. We anticipate that this will resolve current problems while saving the taxpayer at least £18 million a year on current spending.

Baroness Coussins: I thank the Minister for his reply, but would he be prepared to review the framework contract in the light of an independent study commissioned by the Association of Police and Court Interpreters, which predicts that the new arrangement is unsustainable and, far from saving £18 million a year, could end up costing £200 million a year? Secondly, is the Minister aware that more than half the existing number of qualified interpreters have refused to sign up with the new single supplier and take very substantial pay cuts, and that this situation could well result in the employment of less competent interpreters, to the detriment of witnesses, defendants and victims?

Lord McNally: No, we will not review the framework or the agreement that we have made. We have looked at the report-which, in any lobbying exercise, is quite legitimate-and examined the figures in it, but we do not believe that they stand up. We have always been clear that translation and interpretation services of the appropriate quality should be available, where they are required, for all those who come into contact with the justice system, while obtaining value for money for the public. Let us see how it settles. There are many threats and ideas that people are not going to sign up or that it will not work out. Obviously the noble Baroness is far more expert than me on this issue, but there is no doubt that the present system was not working, which is why the previous Administration initiated the inquiry, which has now culminated in this decision, as far back as 2009.

Lord Avebury: My Lords, in designing the new system, why was it decided to ignore existing professional qualifications and to sideline the National Register of Public Service Interpreters, with its established system of registration that requires not only an appropriate degree-level qualification but 400 hours of proven public service interpreting? Does my noble friend think that it is fair to make experienced and qualified interpreters and translators go through the hoops and pay for a new accreditation procedure that assumes that they have just come out of the sixth form?

Lord McNally: My Lords, we are not doing this for fun. We are doing it because the present accreditation system was not working and there was a lot wrong with it. That is why we set up a new register. There were faults in the old register in the quality of assessment and we believe that, starting as we are with a new system, a new register is the most effective way of guaranteeing quality.



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Lord Kinnock: My Lords, no one is arguing for simple maintenance of the status quo. When over half of the qualified people in this profession have made it clear that they are unwilling to register with a new body under the new framework because it implies cuts of up to 70 per cent of their incomes, does the Minister not think that the Government are taking a huge risk by pursuing this course without further review and that it will result in loss of quality, compromise justice-which is worst of all-and could end up ultimately, as the professionals warn, costing much more and not reducing costs?

Lord McNally: The noble Lord has listed all the campaign slogans, as it were.

Noble Lords: Oh!

Lord McNally: The fact is that the old system was extraordinarily inefficient. Sometimes interpreters would get only one appointment in a week. Sometimes interpreters would not turn up, incurring costs to the court. Sometimes interpreters would subcontract to a totally unqualified interpreter. There were a lot of faults in the old system, which is why the previous Administration initiated the inquiry. Having looked at the outcome of that inquiry, we have adopted this new system, providing a new register with a single supplier. Let us see how it works. We have confidence that the system will work, that qualified interpreters will sign up to it and that they will get a volume of work that will give them a decent living.

Lord King of Bridgwater: Can my noble friend confirm, to reassure the British taxpayer, that when Mr Abramovich gives his evidence in Russian and this extensive trial stretches on in whatever language is chosen to conduct it, the cost will not fall on the British taxpayer?

Lord McNally: I will have to write to my noble friend. What I will say to him is that, if it is falling on the British taxpayer, I will put down an amendment to the LASPO Bill to prevent such an absurdity.

Health: Diabetes

Question

3.02 pm

Asked By Lord Collins of Highbury

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the increasing prevalence of diabetes is one of the reasons we remain committed to the NHS health check programme. The programme has the potential to prevent over 4,000 people a year developing type 2 diabetes. We are also continuing to improve treatment and support

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for diabetes. Earlier this year, NICE published a diabetes quality standard, which provides an authoritative definition of good quality care for use by clinicians and commissioners.

Lord Collins of Highbury: I thank the Minister for his response. I agree that the biggest benefit of the NHS programme is the prevention of diabetes. However, despite its being in place for two years, very few people have heard of it or used it. Will the Minister explain what action he will take to ensure that the scheme is properly provided and promoted? Can he guarantee that such schemes will not be the first casualty of the proposed NHS reforms?

Earl Howe: My Lords, we are completely committed to the NHS health check programme, so I can reassure the noble Lord that we are clear that it has a major part to play. It is a very cost-effective way of both preventing and detecting early those who are at risk of diabetes or who may have recently contracted it. Health checks are part of the current operating framework. It is true that the figures for the first quarter of this year were a little disappointing, but PCTs are fully engaged in the process.

Lord McColl of Dulwich: My Lords, will the Minister acknowledge that the main cause of diabetes is the obesity epidemic, which is due to overeating? Could he suggest to the quango NICE that it withdraw its advice about having a balance between "calories in" and exercise, given that exercise has so little to do with the obesity epidemic? You have to run miles to take a pound of fat off.

Earl Howe: My Lords, my noble friend is to be congratulated on his campaign on this issue. Of course, I agree with him that if you are obese a reduction in "calories in" will make the most difference to regaining a healthy weight. He is absolutely right. If there is a respect in which NICE needs to amend its guidance, I am sure that it will be listening.

Baroness Pitkeathley: In view of the very well established connection between obesity and diabetes, and the associated resulting problems such as amputations, gangrene and so on, does the Minister consider that the Government's policy on obesity is now adequate?

Earl Howe: My Lords, we are clear that obesity is a major problem-we have recently had a number of exchanges in this Chamber about it-and we are committed to promoting active lifestyles. Tackling obesity will support that, as will the health check. We are fully engaged in the Change4Life campaign, which raises awareness of the importance of maintaining a healthy weight and being physically active. The obesity challenge is not capable of being addressed or met by government alone; it is a matter for everybody-a matter for people taking responsibility for their own healthcare. Government and industry have a part to play in food formulation, as do the retail and catering trades. It is an effort across society that will beat obesity.



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Baroness Masham of Ilton: My Lords, does the Minister agree that if people cut down on sugar and alcohol it would help? Would he agree that this is a worldwide problem?

Earl Howe: I agree fully with the noble Baroness that sugar and the sugars contained in alcohol are a major feature in the obesity problem and in the incidence of type 2 diabetes.

Lord Rennard: My Lords, will the Minister undertake to look at the report published today by the Primary Care Diabetes Society on keeping people with diabetes out of hospital? Will he agree to look in particular at evidence suggesting that greater provision of insulin pumps or more use of bariatric surgery may be very cost effective to the NHS and, in the wider economic sense, a significant saving to the public purse rather than an expense?

Earl Howe: I shall certainly do so. In relation to insulin pumps, we know that more has to be done to increase the uptake, in line with NICE recommendations. The current operating framework highlights the need to do more to make these devices available. Bariatric surgery should be seen as a last resort, but in some cases it is the right option. It is not an easy option because surgery comes with risks, and anyone undergoing it needs to make significant lifestyle changes. But I am sure that my noble friend's messages are well taken in the medical community.

Baroness Symons of Vernham Dean: My Lords, can the Minister tell us, given that there has been an extraordinary increase in the number of people suffering from diabetes in the past few years, how much of the increase is due to improved diagnosis of people who had diabetes and simply did not know that they had it?

Earl Howe: Certainly, we are picking up more cases of diabetes than we might have done in the past, but my advice is that approximately half the increase that we have seen is due to the changing age and ethnic group structure of the population and half due to higher levels of obesity.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2011

Motion to Approve

3.08 pm

Moved By Earl Howe

Motion agreed.



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Terrorism Prevention and Investigation Measures Bill

Bill Main Page

Committee (2nd Day)

3.09 pm

Clause 26 : Temporary power for imposition of enhanced measures

Amendment 54

Moved by Baroness Hamwee

54: Clause 26, page 17, line 20, leave out subsection (9)

Baroness Hamwee: My Lords, I shall speak also to Amendments 55, 56, 59 and 63. I would add to that list if it gave noble Lords the opportunity to leave the Chamber before I get to the substantive part of my amendments. All of these amendments take us to the clauses in the Bill dealing with what are called enhanced terrorism prevention and investigation measures-that is, measures which the Secretary of State can introduce during a period between Parliaments when she,

that individuals,

My amendments are particularly directed to the extent of those powers.

Clause 26(9) provides:

"A temporary enhanced TPIM order may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation ... of the enhanced TPIM power".

As my noble friend the Minister is aware, my Amendment 54 is particularly directed to understanding what is meant by "appropriate provision". What are the limits of appropriate provision in this context? Does it mean anything in this legislation? That does not seem logical to me because it is there anyway. Does it mean simply up to the boundaries of what is acceptable under the Human Rights Act? What does it mean? I appreciate that as well as the enhanced measure there is an enhanced standard of proof, "the balance of probabilities", for introducing these provisions. I would have read this as a provision on how the measures would be applied-measures including residence, geographical area, association and communication-but the reference to variation from provisions,

makes me doubt that that can be the correct reading, so what is "appropriate provision" in this context?

On quite similar lines, Amendment 56 would amend Clause 26(11), which provides that,

That seems a very considerable power and I hope that the Minister can help your Lordships to understand what the Government have in mind. It is hard to think

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which measures are not in the Bill, apart from imprisonment in a conventional prison without trial or deportation which, while we are past the days of Botany Bay and cannot deport UK citizens, was something else that came to mind. I am pretty stuck as to what that subsection means.

Amendment 55 is not very elegant. It would, no doubt, have been easier if I had added some commas to it. However, it concerns what is elsewhere in the Bill relating,

which are,

and "measures", which is the defined term meaning the measures that can be taken under a standard TPIMs notice. I want to be sure that the various procedures which apply to all of those apply to enhanced TPIMs. I think that is the case but I would like to have assurance on that.

Amendment 63, to which Amendment 59 is consequential, is about commencement and is of course a probing amendment. I am not suggesting postponing the arrangement-at any rate, not at this stage of the Bill-but asking the Minister whether he can give further information to the Committee about the timetable for dealing with the draft legislation for the separate enhanced TPIMs Bill. I know that he said at our last sitting that we will come to pre-legislative scrutiny of that in due course, essentially, although I do not recall which phrase he used. It would be more satisfactory to know what timetable we are working to, so that we all have a context for this Bill. I beg to move.

3.15pm

The Minister of State, Home Office (Lord Henley): My Lords, I thank the noble Baroness, Lady Hamwee, for bringing forward these amendments, which are all essentially probing amendments. I commend her for so doing, as this is what the House does very well. I hope I can respond to and answer most of the points she has made in her four amendments-in fact, there are five, but they are in four batches.

If I start with Amendment 54, which is about the meaning of "appropriate", I must first describe what subsection (9) does. It provides that a temporary enhanced TPIM order,

We believe that subsection (9) is essential to the clause. It allows the Secretary of State to make the consequent provisions to make sure that the enhanced TPIM regime functions properly, and it allows for equivalent provision to be made, to occur in paragraph 7 of Schedule 2 to the draft enhanced TPIM Bill.

This specifies that the operation of Schedule 6 to the TPIM Bill, which relates to the retention of DNA, is modified in order to accommodate the ETPIM regime. In particular, it takes account of the fact that the same individual may, at a different time, be subject to both an enhanced TPIM notice and the standard TPIM notice. I hope that my noble friend will accept that.



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Amendment 55 would insert a new clause after subsection (10). The provisions of Clauses 26 and 27 already ensure that the order will apply the provisions of the Bill to the enhanced TPIM regime to the extent that it is appropriate. This includes all the nuts and bolts of the TPIM regime; for example the role of the court, and the way in which the TPIM notices are varied or revoked. The provisions that are not applied to the order are those which are not yet relevant. For example, an enhanced TPIM notice may not be extended for a year under the order, as the order, unlike the enhanced TPIM Bill, only lasts for 90 days and cannot be renewed.

Amendment 56 would delete the provision allowing the Secretary of State to amend any enactment under the order-making power. The noble Baroness stated that the amendment was not quite as elegant as it ought to be. She may have raised a point that we will certainly consider. At this stage, we want to see whether that provision is necessary; we will come back to the noble Baroness, have discussions with her, and possibly bring forward an amendment on Report.

Amendments 59 and 63, which are to be taken together, relate to commencement. I think the noble Baroness was really asking not so much about commencement but rather consideration of the draft legislation of the enhanced Bill. Obviously, it must be for the usual channels to decide what is appropriate, which committees are available, and so on. However, I am sure that with discussions between the usual channels-between the Government, the Opposition and others-we will come to the right solution as to how the enhanced TPIM Bill should be considered by this House and another place, or perhaps both together, while bearing in mind the resources available to both Houses. Different noble Lords will have different views on this, to which we will listen in due course, as will the usual channels, as always. I hope those explanations are sufficient for the noble Baroness but if they are not we can discuss them further. However, with that, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Hamwee: My Lords, I thank the Minister for all of that. With regard to his reply on my first amendment, I shall have to take his word for it. That is my failure of concentration, not his failure of explanation. It is certainly a reply that deserves to be read in Hansard as it was quite technical.

On Clauses 26 and 27 applying to the extent that is appropriate and what is not appropriate, the Minister seemed to give examples rather than a complete reply. I am sure that his brief includes examples for him to give, which is fair enough, but it would be helpful to understand the extent of the point. May I ask him to let me have a complete answer in writing after Committee stage? These clauses are quite difficult to follow. I think I said on the previous day in Committee that a flow chart would be helpful in some cases. Given the powers that the Secretary of State would be granted, it would be appropriate to have as extensive an understanding of what is meant as possible.

Lord Henley: My Lords, whether I can provide a flow chart is one thing but I certainly promise to write to my noble friend so that we can sort these things out

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between now and Report. At this stage I will just give a commitment to write to her but that commitment does not necessarily extend to providing a flow chart.

Baroness Hamwee: My Lords, I do not think I was asking for a flow chart but I share the Minister's wish to get this sorted out before Report. These issues do not lend themselves terribly easily to debate across the Floor of the Chamber. As regards the enhanced Bill, I hear what the Minister has to say. I thought it was worth continuing to ask the question. I beg leave to withdraw the amendment.

Amendment 54 withdrawn.

Amendments 55 and 56 not moved.

Clause 26 agreed.

Clauses 27 to 29 agreed.

Schedules 7 and 8 agreed.

Clause 30 agreed.

Amendment 57 not moved.

Clause 31 : Short title, commencement and extent

Amendments 58 and 59 not moved.

Amendment 60

Moved by Lord Hunt of Kings Heath

60: Clause 31, page 21, line 35, leave out from the first "on" to end and insert "such day that the Secretary of State may by order appoint, being a day after 1 January 2013"

Lord Hunt of Kings Heath: My Lords, I shall also speak to my Amendment 61. The heart of the Opposition's concern with the Bill is the worry that the Home Secretary's powers to deal with these very difficult and potentially very damaging cases are being weakened. Nowhere is this more evident than the central issue of relocation without consent. Relocation powers have proved to be extremely useful in disrupting terrorist activity, as has been confirmed by the police on a number of occasions. Indeed, as we discussed on the first day in Committee, the Home Secretary herself argued in May of this year-just a few months ago-in the case of CD that he needed to be removed from Greater London to protect the public from a terrorist attack.

Ministers have claimed that we need not worry because they will put greater surveillance measures in place of the existing legislative provisions. I again remind the Minister that, in evidence to the Public Bill Committee in the other place, the senior representative of the Metropolitan Police said that to get the resources required so that there will be sufficient surveillance measures in place, to get people trained, and to get the right equipment would take more than a year. The point I put to the Minister is this: it is simply not credible that the security environment has changed so dramatically in the past three to five months that the powers needed then are not needed now.



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With the Olympic year coming up, can the Minister honestly say that the powers are needed less in the coming months than they were needed by this Home Secretary, who has used those powers on five occasions? The Minister has argued that the public can be protected by a less intrusive and more targeted regime. He has talked about the need for this regime to be complemented by additional resources for the police and security services, allowing more surveillance, and it is acknowledged that it will take time for those measures to be put into place.

My amendment offers a very helpful way forward for the Government. I am suggesting that the new measures are not brought in until 1 January 2013. This will allow us to get through the Olympic year using current legislative provisions. I am also suggesting that Parliament has some reassurance from the terrorism co-ordinator that the additional resources have been provided and, overall, that there can be confidence that the new provisions of this Bill, if enacted, and the additional measures that will need to be brought in in relation to surveillance are fully in place. I think that that is a very good offer from the Opposition; it will allow the Government to reassure both the security services and the police and to ensure stability over the next 15 months. The Government will be able to implement the new measures from 1 January 2013. Surely it will be worth the Government pausing over the next year to get us through the Olympics and then move to the introduction of these provisions. I beg to move.

3.30 pm

Baroness Hamwee: My Lords, the noble Lord, Lord Hunt, says that relocation has been very useful in disrupting terrorism activity. The problem I have is that I do not know and I do not know whether he knows. He may well believe that that is the case, but I am not sure that any of us really knows. That has been a difficulty throughout the debate on the Bill.

I have a couple of points on the drafting of Amendment 61. It seems to me that it slightly muddles accountability. Is it not for the Home Secretary to take the decision on the resources and to take responsibility for what resources are applied, rather than it being an arrangement with the terrorism co-ordinator who, I take it, is the co-ordinator within the Metropolitan Police? I am slightly concerned that the amendment dilutes the responsibility of the Secretary of State. The terrorism co-ordinator of course has a role in this. We have all heard senior police officers say that they will do what they can within the resources provided to them, and they are very cautious about saying that they have enough resources.

My second point is to ask whether it is possible to identify precisely the right resources and deploy them. That could well be something of a moving feast; the resources required will vary from time to time. I of course understand the concerns that lie behind the noble Lord's amendment, but I am not sure whether it is a practical way of satisfying us all and, indeed, the public.

Lord Pannick: My Lords, I am assuming that the Government are satisfied that the available resources are sufficient to maintain security in this country. If that is not the case, it would be very troubling indeed.



1 Nov 2011 : Column 1126

Lord Henley: I thank the noble Lord, Lord Pannick, for that comment. Yes, we are satisfied and it would be very troubling if we were not. Perhaps I may also deal with the brief point made by my noble friend Lady Hamwee about the terrorism co-ordinator. I am assuming that by that term used in the amendment the noble Lord, Lord Hunt, means a senior national co-ordinator for counterterrorism, but I shall let him address that in due course.

I am grateful for the intervention of my noble friend Lady Hamwee. She emphasised, first, the point of the role of Home Secretary and, secondly, a point that the noble Lord, Lord Hunt, himself addressed-that we should look not just at the Bill on its own but at the Bill plus the additional resources that have been promised. That is the most important matter before the House at this stage. It is not just the Bill that we are talking about, but the whole package that the Government have put forward.

I thank the noble Lord for his clear explanation of the concerns that lie behind his amendments. I appreciate that he raised the subject of relocation and the case of CD, in which, on that occasion, my right honourable friend the Home Secretary used relocation. However, as I have said, we must look at the package; and it is because the package will be in operation that we believe that relocation will not be so necessary in the future. As the House will be aware, there has been considerable debate over the past few weeks, here and in another place, about the arrangement for the transition from control orders to the new system of TPIMs. These amendments are an attempt to return to the issues raised by amendments tabled in another place and debated at some length on Commons Report.

The Opposition have been consistent in expressing their concern that the police and the Security Service may not be ready for the commencement of the Bill when the time comes. These amendments, in common with those tabled in another place, are intended to provide reassurance on that point by delaying commencement of the Bill or by making it subject to agreement with the police on the readiness of the significant additional resources that we are providing. However, as my noble friend Lady Hamwee said, that must, in the end, be a matter for the Home Secretary.

I accept that such concerns, particularly in the run-up to the Olympic Games, are well intended and are born of a concern to deal with matters that relate to the safety of the public. However, I am happy to confirm that I do not believe that they are necessary. As I said in response to the noble Lord, Lord Pannick, the public will be protected by the Bill because we are satisfied that there are sufficient resources available, including in relation to the date on which the Bill comes into force. We believe that the Bill plus the robust package provide the appropriate measures to protect the public, and alongside it there will be considerably increased resources to strengthen covert investigative capacity. We have repeatedly made it clear that for obvious reasons we are not able to provide details of that additional funding or its deployment, and that remains clear. However, we have also been clear-and I am pleased to confirm this again-that we have been in discussion with the police

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and the Security Service for some months on this matter, and arrangements will be in place to manage effectively the transition from control orders to TPIMs.

I hope that those assurances are sufficient for the noble Lord. If they are not, we will obviously come back to this matter on Report. However, I hope he will accept that we obviously cannot go into detail on what the resources are, and he would not expect me to do so. However, what I have said should be sufficient to allay his fears and I hope that he will therefore be prepared to withdraw his amendment.

Lord Hunt of Kings Heath: My Lords, I am grateful to the Minister, although I am disappointed by his response. I just refer the noble Baroness, Lady Hamwee, to the evidence given by Deputy Assistant Commissioner Stuart Osborne to the Public Bill Committee when he was asked about the effectiveness or not of relocation orders. He said:

"The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult".-[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 5.]

I agree with the noble Lord, Lord Henley, that it is a question of the Bill plus resources. He said that he is confident that, alongside the provisions of the Bill, sufficient resources are being made available to the police and security forces. Of course, I can only accept the assurance that the noble Lord has given but I simply wonder whether he is wise to move to a new system within a very short period of the Olympics coming to this country. I wonder whether there is not a case for the implementation of this measure being delayed until after the Olympics. That really is the intention behind my amendment, which is meant to be helpful, and I hope that the Government will give it further consideration between now and Report. I beg leave to withdraw the amendment.

Amendment 60 withdrawn.

Amendment 61 not moved.

Amendment 62

Moved by Lord Rosser

62: Clause 31, page 21, line 35, at end insert-

"( ) This Act expires at the end of the period of one year beginning with the day on which it commences.

( ) The Secretary of State may, by order, revive the Act if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.

( ) An order made by the Minister under this section is to be made by statutory instrument."

Lord Rosser: My Lords, the purpose of this amendment is to ensure that the Bill and the TPIMs that it sets up require annual renewal, as is the case with the present control order legislation. That legislation is clear in its temporary nature and it has a sunset clause, which requires an annual vote in Parliament to consider whether the powers are still required. The Bill before us makes no provision for a yearly sunset clause but

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provides for a five-year limit, not requiring a first vote until the end of 2016 or early 2017 if its operative provisions are to continue and not expire.

Both your Lordships' Constitution Committee and the Joint Committee on Human Rights have queried this provision in the Bill. The Constitution Committee questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. The Joint Committee on Human Rights said that it was disappointed by the Government's reluctance to expose their proposed replacement regime for control orders to the rigours of formal and post-legislative scrutiny, which annual renewal would entail. The Joint Committee was of the view that the TPIMs regime was less severe than the control orders regime but still felt that TPIMs remain,

The Joint Committee also noted that the UN special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism, in a recent report to the UN Human Rights Council, had observed:

"Regular review and the use of sunset clauses are best practices helping to ensure that special powers relating to the countering of terrorism are effective and continue to be required, and to help avoid the 'Normalisation' or de facto permanent existence of extraordinary measures".

The Joint Committee recommended that the Bill should also,

In a recent letter responding to your Lordships' Constitution Committee, the Minister in the other place claimed that five-yearly rather than annual renewal would allow the system to operate in a stable and considered way and would allow proper and detailed consideration to take place on whether the legislation was still required. Annual renewal also allows for proper and detailed consideration, and rather more frequently than once every five years. As for the assertion that five-yearly renewal will allow the system to operate in a stable and considered way, that rather suggests that the Government see TPIMs as not far short of a permanent arrangement, despite the exceptional executive powers, including the profound impact they can have on the liberty of some individuals. That is a key reason why annual renewal is necessary-precisely to ensure that these are regarded as temporary and not permanent measures.

We agree with the Joint Committee on Human Rights. Annual renewal is required for the current control order regime because of the considerable and exceptional executive power that it confers, most of which remains in the current Bill in respect of TPIMs. In addition, we now have the draft enhanced terrorism prevention and investigation measures Bill, which could be brought into being at short notice and which provides further extraordinary executive powers.

This Bill, like the control orders legislation, covers difficult issues relating to the rule of law. It provides powers to act in cases where prosecution is not possible

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but where, nevertheless, security concerns about the activities of a small number of individuals are such that it is felt that executive action has to be taken, which considerably restricts liberty through control orders, or in future through TPIMs, when the Secretary of State reasonably believes that the individual is or has been involved in terrorism-related activity. Whatever one's views on the need for control orders or TPIMs, these are considerable and exceptional measures, and for that reason alone it is surely only right and appropriate that Parliament should have the opportunity and the duty to decide each year whether or not the situation remains such that these measures and the associated powers should continue in being or, instead, be allowed to expire. It is surely not appropriate, in view of the profound impact on the liberty of individuals of these exceptional measures and powers-the Minister accepted on Second Reading that they were exceptional-that an important check by Parliament on the exercise of those executive powers, and the continuing necessity for them, should be almost eliminated by permitting Parliament that opportunity to decide whether the situation remains such that they should continue, or be allowed to expire, only once every five years. I beg to move.

Lord Lloyd of Berwick: My Lords, I support the amendment, but I do not hold out much hope that it will do any good. It was different six years ago when the Conservative Party, and Lord Kingsland in particular, were in favour of relaxing, rather than strengthening, the 2005 Bill. Despite that, we argued the toss on renewal every year for six years and achieved precisely nothing. Now the Official Opposition are in favour of strengthening the Bill, and I see no reason to suppose that the Government will themselves be of that view-I hope not. I, therefore, suspect that in debating this matter every year for the next five years we will largely be wasting our breath, though I support the amendment for its symbolic value.

3.45 pm

Lord Pannick: My Lords, I, too, support the amendment. I am rather more optimistic that it will do a great deal of good. I agree with what has been said by the noble Lord, Lord Rosser, about the need for an annual review because of the exceptional nature of these powers, and because of the need for Parliament to have the opportunity to consider such matters annually. But there is a further factor. An annual review will surely impose an important discipline on the Government, and this is an area where we inevitably need to trust the Government. It will require Ministers periodically to consider the need for these measures, what they can say to justify them in parliamentary debates and whether or not these measures need an amendment. This is an important discipline, particularly in a context where the factual circumstances that are said to justify these exceptional measures are not going to remain static for as long as the next five years.

Baroness Kennedy of The Shaws: My Lords, I support the amendment. Unlike the noble and learned Lord, Lord Lloyd, I do not think it is pointless. We should always remind ourselves that emergency measures have

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a way of seeping into the legal system as a whole. We have learned that over time. Often, things that are introduced as emergency measures end up remaining on the statute book for far too long. The fact that we come together and annually review a matter-even if we do not manage to persuade the Government-does mean that the matter is before us, and we are still talking about something that is being used as an exception to the rule. I therefore urge those who are listening to see why this is important, and that we do have the annual review that we have always had in the past.

Lord Faulks: My Lords, these provisions followed a lengthy counterterrorism review and represent the views of the Government as to where the line should be drawn between the necessary powers, by way of TPIMs, and the liberty of the individual. This legislation has been through the other place and is going through your Lordships' House in a thoroughly orthodox way, and the provisions are being carefully scrutinised. TPIMs contain a considerable number of safeguards, which have already been discussed in Committee, and they reflect a considered compromise between the various arguments. The Bill does not represent a response to the immediate crisis, as the 2005 position did, and has not gone through Parliament by way of accelerated procedures; it represents the result of lessons learnt.

The provisions can be repealed by an order-making power or in the way that any other legislation is repealed. It is tempting with extraordinary powers-and I readily concede that they are extraordinary powers-to suggest that they should be under more or less constant scrutiny. But where the Bill represents a considered response, five years is an appropriate time in which Parliament and the Government can consider this particular take on a particularly difficult situation. At that juncture, the Government and Parliament can think again. For the moment, as the noble and learned Lord, Lord Lloyd suggested, squabbling every year about this would not improve matters, and we should rest with the provisions as they are.

Baroness Hayman: My Lords, I cannot agree with the noble Lord, Lord Faulks, that an annual review would simply be squabbling about the provisions of this Bill. I am tempted to speak, despite my resolution not to speak on controversial issues for several months after leaving the Woolsack, because the issue of a sunset clause was one on which in 2005 I abandoned loyalty to my Government and put forward the amendments to have a sunset clause, which eventually transmuted into the annual review of the Prevention of Terrorism Act.

I would be saddened if these measures, which, as the noble Lord, Lord Faulks, said, are less draconian in some ways than control orders and represent a considered view, were considered the best that we can do. I am not certain about that, but we will have further debates on Report on some of those issues. I wonder whether that exonerates us from the responsibility of devoting what is not a great deal of time every year to looking at these extraordinary provisions in both Houses of Parliament. It seems to me to be a proper recognition of the retreat from some of the processes

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that we have held dear for centuries in this country in terms of the administration of the criminal justice system. I do not argue against the premise or fact that there is a need or problem that is not easily solved by the normal criminal justice system; I argue that, because of the extraordinary nature of these measures, it is incumbent on us as parliamentarians to keep them under review. I do not think that that is a dreadful burden.

However, I am delighted to see the opposition Front Bench such enthusiastic supporters of measures which I remember they were not quite so enthusiastic about when I proposed them six years ago.

Baroness Butler-Sloss: I strongly support the speech of the noble Baroness, Lady Hayman. It seems to be highly desirable, to put it at its very least, that, as problems change, there should be an annual review of the existing law dealing with terrorism. Like all previous speakers, I, too, support the amendment.

Lord Henley: My Lords, I am grateful to all noble Lords who have spoken in this debate. I have three brief points to make, which will take me a little time, about why we do not accept the amendment moved by the noble Lord, Lord Rosser. First, we believe that renewal every five years strikes the right balance-a word I have used on many occasions; secondly, I believe that annual renewal is unnecessary, and I shall return to that in more detail; and, thirdly, there are other means by which the Bill can be amended or repealed.

First, I thank my noble friend Lord Faulks for his comments reminding the House that the provisions that face us follow a very lengthy review of all our counterterrorism provisions by the Government, with the announcements earlier in the year and consideration of this Bill, in due course, in both Houses. This is very different from what happened with the 2005 Act. We believe that renewal every five years strikes the right balance and reflects the need to build in effective safeguards to ensure that the powers do not remain in force longer than necessary. It also reflects the competence of Parliament to apply intense scrutiny to legislation and to arrive at a position when it will not need to be reviewed annually. We are moving to a position where we hope that each Parliament will last five years, so each new Parliament will have the opportunity to debate this in the context of the situation at the time and take its own view. That is in line with the length of Parliaments, as I have said, provided by the Fixed-term Parliaments Act.

Secondly, I believe that annual review is unnecessary. I listened to the noble and learned Lord, Lord Lloyd, say that he was wasting his breath. He never wastes his breath in this House. I have been here for many years and I have listened to him with great devotion on many occasions. I do not always agree with him, but he is not wasting his breath. I appreciate that the noble Lord, Lord Pannick, is more optimistic and feels that an annual debate provides a better opportunity for these things, as do the noble Baroness, Lady Hayman, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Kennedy, a copy of

1 Nov 2011 : Column 1132

whose book Just Law-however you pronounce it-sits in my room in the Home Office to this day, and I will always have it there to be reminded about how I should go about my duties. However, I have to say that I do not agree with her, or with others, on this occasion about whether annual renewal is necessary.

The important thing is to distinguish the process we are going through on this occasion from the process we went through following the 2005 Act. This Bill will be subjected to full parliamentary scrutiny with the usual timetable-we still have not completed it in this House-allowing for a settled position to be reached. In contrast, the 2005 legislation was, as the noble Lord will remember, rushed through with very little opportunity for debate. The noble Baroness, Lady Hayman, reminded the House of her role in that. We believe that that makes annual renewal an appropriate safeguard for the 2005 Act, but one that we do not think is necessary for this Act.

My third point is that there are also other means by which the Bill can be amended or replaced. The noble Lord, Lord Rosser, stressed that these powers seem to be permanent, but I ask him to look very carefully at Clause 21(2) which states that:

"The Secretary of State may, by order made by statutory instrument ... repeal the Secretary of State's TPIM powers".

It is unusual to give the Secretary of State the power to repeal something, but that provision allows her, if she feels they are no longer necessary, at any stage to repeal and take away the powers that she has given herself. Again, I make this point in terms of how, if it becomes clear that the powers should be changed, the legislation can be amended by Parliament at any time in the usual way.

I appreciate that many noble Lords feel that an annual debate would be preferable to one every five years. It happens on other occasions. I think there is some financial Motion that we debate once a year under EU rules following some vote in this House, and I have noticed, and I think other noble Lords will have noticed, that the number of participants in that debate seems to decline each year as time goes past, so I wonder whether a debate every year is necessary, given the fact that this Bill has been given full coverage in both Houses.

I appreciate that others may feel differently but, at this stage, I think that what we are offering and have brought forward as a concession in another place-a debate once each Parliament-is appropriate and will be sufficient, given the other safeguards in the Bill. I hope therefore that the noble Lord, Lord Rosser, will feel that on this occasion he can withdraw his amendment.

Lord Rosser: My Lords, I thank the Minister for his response. I also thank all noble Lords who have taken part in this debate for the contributions they have made based, I have to say, on considerably more experience and knowledge of the issues involved than I can claim to possess. Perhaps I should also congratulate the noble Baroness, Lady Hayman, on her determination on this point with the previous Government.

There is no disagreement that this amendment raises a key issue of real significance. It is about parliamentary oversight of extraordinary and exceptional executive

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powers which directly affect to a considerable degree the freedom and liberty of a small number of individuals whom the Secretary of State reasonably believes are or have been involved in terrorist activity. That oversight, involving human rights and civil liberties, cannot be properly exercised if done only once every five years. In reality, the Bill would be amended or dropped in the intervening years only if it were the Government, not Parliament, that wanted to change the legislation. That is surely a fact of life.

4 pm

I have listened to the Minister's reply. It clearly does not meet the concerns that have been expressed; indeed, I do not think it goes any further than the position he set out at Second Reading. However, I will read Hansard carefully to confirm that my view of the Minister's reply is correct, as I am fairly sure it is, before deciding whether to pursue the matter on Report. In the mean time, I beg leave to withdraw my amendment.

Amendment 62 withdrawn.

Amendment 63 not moved.

Clause 31 agreed.

House resumed.

Bill reported without amendment.

Education Bill

Main Bill Page
Amendments

Report (4th Day)

4.01 pm

Clause 41 : Inspection of further education institutions: exempt institutions

Amendments 81 and 82

Moved by Lord Hill of Oareford

81: Clause 41, page 37, line 13, leave out "follows" and insert "set out in subsections (2) to (10)"

82: Clause 41, page 38, line 4, at end insert-

"(11) In section 182 of EIA 2006 (parliamentary control of orders and regulations)-

(a) in subsection (2), after paragraph (a) insert-

"(aa) regulations to which subsection (2A) applies,";

(b) after subsection (2) insert-

"(2A) This subsection applies to regulations made under section 125(1A) (power to prescribe institutions exempt from inspection), apart from the first regulations to be made under that subsection.";

(c) in subsection (3), after paragraph (a) insert-

"(aa) regulations to which subsection (2A) applies,"."

Amendments 81 and 82 agreed.

Clause 43 : Schools causing concern: powers of Secretary of State

Amendment 82A not moved.



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Schedule 12 : Further education institutions: amendments

Amendment 82B

Moved by Lord Hill of Oareford

82B: Schedule 12, page 90, line 38, at end insert-

" After section 16 insert-

"16A Publication of proposals

(1) The appropriate authority may not make an order under section 16(1) or (3) unless the authority has published a draft of the proposed order, or of an order in substantially the same form, by such time and in such manner as may be prescribed.

(2) A draft proposal or order in respect of an institution which is maintained by a local authority may not be published without the consent of the governing body and the local authority.

(3) In this section "the appropriate authority" means-

(a) in relation to a proposal or order in respect of an institution in England, the Secretary of State;

(b) in relation to a proposal or order in respect of an institution in Wales, the Welsh Ministers.""

The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, I will speak to the government amendments in this group. As noble Lords may be aware, in October 2010 the Office for National Statistics announced its decision to reclassify FE colleges to the public sector for the purposes of the national accounts. This reclassification would impose heavy new administrative burdens on colleges, and could significantly affect their ability to make their own strategic and operational decisions.

If FE colleges were exposed to the full rigours of the government expenditure regime, they would lose the flexibility they currently have to phase expenditure between different financial years; they would need to work within a financial year that does not line up with their academic year; and it is likely that the very freedoms we are introducing to enable them to borrow without seeking permission would need to be taken away from them, and even tighter constraints introduced. These and other controls would all act as barriers to colleges growing, innovating and developing as we would wish them to do.

I am very grateful to my noble friend Lady Sharp for raising this important issue in Committee. Recent feedback from the ONS indicated that the powers held by the Secretary of State in two areas were indicative of public sector control. We have looked again at these areas to see whether changes could be made to secure private sector classification for colleges, something that I know successive Governments have wished to retain.

The first area is Secretary of State control over the instrument and articles of the governance of colleges. I am sure all noble Lords would agree that every college should have clear, transparent and robust governance arrangements. However, we believe that this can be achieved without Secretary of State control. The government amendments in this group remove the powers of the Secretary of State-or in the case of sixth form colleges, the YPLA-to alter college instrument and articles and place these powers with the college itself. For most colleges this change will make no

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difference, but it will enable colleges that want to develop and improve their governance in response to the needs of their students, employers and local community to do so. We have retained the essential elements that all instruments and articles must contain in new Schedule 4, which is set out in Amendment 84ZL.

The second area is the Secretary of State's control over the closure of colleges, known as dissolution. Presently, only the Secretary of State can dissolve a college. The government amendments remove this power from the Secretary of State and give colleges control over their own dissolution. These amendments, and the regulations that will be laid in support of them, include a number of safeguards to ensure that any dissolution decision is taken only once all those affected-staff, students and the local community-have been consulted, and that the process is undertaken in a clear and transparent way, recognising that colleges are providers of an important public service.

Existing legislation provides the state with a legal mechanism to tackle, in extremis, failure in colleges, and this will be retained. In cases where there is evidence of significant mismanagement in colleges, the Secretary of State will be able to exercise his powers of intervention to direct the college to dissolve itself and transfer its property, rights and liabilities to another provider. This action will be taken only once all other steps have been taken to secure improvements, where it is necessary for the Government to intervene as a matter of last resort, to protect students.

I wrote today about government "correcting" Amendments 84ZBA and 84ZN, which correct the provision in Schedule 12 that repeals the duty on colleges to have regard to guidance on consultation with students and employers in England, while retaining this in Wales.

It may help if I inform noble Lords of discussions between the noble Baroness, Lady Jones of Whitchurch, and my honourable friend, the Minister for Further Education, Skills and Lifelong Learning, John Hayes MP, on her Amendment 84ZLA, which would retain requirements for staff and student governors. On behalf of my honourable friend, I thank the noble Baroness and the noble Lord, Lord Young of Norwood Green, for taking the time to meet us. I apologise to them for bringing these amendments forward at a later stage than we would have liked.

The Government have brought forward these changes to support our case for the private sector classification for colleges, in accordance with the policy of successive Governments. It was not our intention to encourage colleges to remove staff or student governors from college governance arrangements. I know that colleges greatly value the contribution that those governors make.

Having listened to the arguments that were put to him by the noble Baroness, Lady Jones of Whitchurch, my honourable friend Mr Hayes and I have spoken further. We have decided that the Government will return at Third Reading with their own amendment, which will give effect to what the noble Baroness's amendment seeks to achieve. With that assurance, I hope that the noble Baroness will feel able to withdraw the amendment.



1 Nov 2011 : Column 1136

Baroness Jones of Whitchurch: My Lords, as the Minister has indicated, we have tabled Amendment 84ZLA in this group. Its aim was to reinstate the rights of students and staff to be represented on FE college governing bodies. As the Minister has described, last night we had a useful meeting on this issue with John Hayes. I think it was acknowledged at that meeting that the proposals had arrived rather late and that there had not been time to consult the stakeholders effectively on the implications of these changes.

I am therefore grateful that the Minister has agreed to reconsider this issue and to come back with a form of words that will reinstate the right to student and staff representation at Third Reading. On this basis, we are prepared to withdraw Amendment 84ZLA. We of course reserve the right to return to this issue at Third Reading should we feel that the new proposals are lacking in any way, but I am sure that that will not be the case. For the moment, I thank the Minister for the progress made on this issue.

In the mean time, we are still absorbing the wider implications of these governance changes. I should be grateful if the Minister could clarify whether one consequence, intended or otherwise, is that governors of FE colleges will be able to be paid in the future. If he does not have that information to hand, perhaps he could write to me.

Moving briefly to the issues covered by the noble Baroness, Lady Brinton, in Amendment 83, this issue was well aired in Grand Committee and very much supported by us at that time. As the noble Baroness, Lady Sharp, said during the earlier debate, colleges should be,

FE colleges have worked hard in the last decade to advance strong partnerships with local businesses, and have the inside track on local employment markets. Their links with local youth services are now more important than ever, as resources shrink.

The Association of Colleges has argued that while it highly prizes the work that local colleges achieve in their communities, this work will carry on whether or not there is a duty to do it. The Minister said something similar in Grand Committee. I would turn this argument on its head; if the work is so prized and so effective, should we not take the precaution of leaving it in the original legislation to ensure that it continues, rather than sending a signal that it is no longer a requirement on colleges, which might otherwise develop different priorities?

With these comments, I look forward to the Minister's response to the debate.

Baroness Sharp of Guildford: My Lords, I have two amendments in this grouping, Amendments 83 and 84. They do indeed pick up the issue that we spoke about in Committee, which is the duty on the part of colleges to promote the well-being of the local area.

I thank the Minister for bringing forward this raft of amendments. As he knows, I am chairing a commission on behalf of NIACE, the AoC and the 157 Group, which is looking into the role of colleges in their communities. The issue of the reclassification by ONS

1 Nov 2011 : Column 1137

cropped up in our deliberations on this commission. Our intention is to promote the role of colleges. As the noble Baroness says, we have used the term "dynamic nucleus within their communities"-they should be proactive in developing partnerships and in promoting well-being and community cohesion within their communities. Since that is the case, we are very anxious that they should not be inhibited from this by a statistical classification, and therefore we have been backing the moves made by the department here. I put down some rather naive amendments in Committee in order to pave the way for this, and I am delighted that we have-I hope-managed to come forward with a way that prevents this reclassification.

In relation to my own amendments, I have spoken at some length both with the AoC and with the department about this issue. As I have suggested, the report, which is going to be presented at the AoC conference later this month, will in fact suggest a wider role for colleges within the community, and I think there is a fair amount of good will towards the promotion of this role. In the light of that, I have decided that it would not be appropriate at this time to press my amendments. There is good will on all parts, and the assumption is that colleges will be promoting the well-being of their local area as part of what they will be doing. There is no question of that, but it does not necessarily need to be in the Bill, so, as I say, I shall not press my amendments today.

Lord Hill of Oareford: My Lords, I thank my noble friend Lady Sharp for raising the issue of promoting well-being, and take the opportunity to thank her formally for the work she is doing at the helm of the Government's commission on the role of colleges in their communities. As she has just said, colleges contribute significantly to the social and economic well-being of their local areas, not only through the education, skills and employment that they provide but through their partnerships and relationships with other bodies in their local areas. I am grateful to her, and look forward to the report that she was talking about, which she is launching at the Association of Colleges conference later in the month.

I am grateful to the noble Baroness, Lady Jones of Whitchurch, for her remarks. On her specific question about remuneration, I understand that colleges need to apply, as now, for exceptional approval for the remuneration of governors for their services as members of the governing body. The change is that they would be treated in line with other charities, and would have to apply to the Charity Commission rather than to the Secretary of State. There is no general power in charity law for trustee boards to make remuneration payments, so permission would be granted only in exceptional circumstances, as the commission has a general expectation that charity assets should be used directly for the purposes of the charity.

The amendments that the Government have tabled, as I think has been recognised, have been made within the context of a changed landscape, in which government and the sector are working together. It has been the policy of successive Governments since the inception of FE corporations in 1992 that colleges should not

1 Nov 2011 : Column 1138

have the financial and control requirements associated with public sector classification. Our amendments seek to strike the right balance between securing that classification while safeguarding students and public investment in the sector. With the assurance that I have given the noble Baroness, Lady Jones of Whitchurch, I hope noble Lords generally will feel that we have struck such a sensible balance.

Amendment 82B agreed.

4.15 pm

Amendment 82C

Moved by Lord Hill of Oareford

82C: Schedule 12, page 90, line 40, at end insert-

"( ) In subsection (4)(c), for "27" substitute "27C or 33P"."

Amendment 82C agreed.

Amendment 83 not moved.

Amendments 83A to 83E

Moved by Lord Hill of Oareford

83A: Schedule 12, page 91, line 18, at end insert-

" In section 20 (constitution of further education corporation and conduct of further education institution), for subsection (2) substitute-

"(2) Instruments of government and articles of government of further education corporations in England-

(a) must comply with the requirements of Part 2 of Schedule 4, and

(b) subject to that, may make such other provision as may be necessary or desirable.

(2A) Instruments of government and articles of government of further education corporations in Wales-

(a) must comply with the requirements of Part 3 of Schedule 4, and

(b) subject to that, may make any provision authorised to be made by that Part of that Schedule and such other provision as may be necessary or desirable."

For section 22 substitute-

"22 Subsequent instruments and articles: England

A further education corporation in England may modify or replace their instrument of government or articles of government.

22ZA Subsequent instruments and articles: Wales

(1) Subject to subsections (2) and (3), the Welsh Ministers may-

(a) if a further education corporation in Wales submits a draft of an instrument of government to have effect in place of their existing instrument, by order make a new instrument of government in the terms of the draft or in such terms as they think fit, and

(b) if such a corporation submits draft modifications of an instrument made under paragraph (a), by order modify the instrument in the terms of the draft or in such terms as they think fit.

(2) The Welsh Ministers must not make a new instrument otherwise than in the terms of the draft, or modify the instrument otherwise than in the terms of the draft, unless they have consulted the corporation.



1 Nov 2011 : Column 1139

(3) If the institution conducted by a further education corporation mainly serves the population of England, or receives financial support from the Chief Executive of Skills Funding, the Welsh Ministers must consult the Chief Executive of Skills Funding before making an order under subsection (1).

(4) The Welsh Ministers may by order modify, replace or revoke any instrument of government or articles of government of any further education corporation in Wales.

(5) An order under subsection (4) may relate to all further education corporations in Wales, to any category of such corporations specified in the order or to any such corporation so specified.

(6) Before making an order under subsection (4), the Welsh Ministers must consult-

(a) the further education corporation or (as the case may be) each further education corporation to which the order relates, and

(b) the Chief Executive of Skills Funding, if the institution conducted by the corporation or (as the case may be) any corporation to which the order relates mainly serves the population of England, or receives financial support from the Chief Executive of Skills Funding.

(7) A further education corporation in Wales may, with the consent of the Welsh Ministers-

(a) make new articles of government in place of their existing articles, or

(b) modify their existing articles.

(8) The Welsh Ministers may by a direction under this section require further education corporations in Wales, any class of such corporations specified in the direction or any particular further education corporation so specified-

(a) to modify, replace or revoke their articles of government, or

(b) to secure that any rules or bye-laws made in pursuance of their articles of government are modified, replaced or revoked,

in any manner so specified.

(9) Before giving a direction under this section, the Welsh Ministers must consult the further education corporation or (as the case may be) each further education corporation to which the direction applies."

83B: Schedule 12, page 91, line 19, leave out paragraph 4 and insert-

" For section 27 substitute-

"27 Proposals for dissolution of further education corporations: England

(1) This section applies if a further education corporation in England propose that the corporation should be dissolved.

(2) The corporation must publish details of the proposal, and such other information as may be prescribed, in accordance with regulations.

(3) The corporation must consult on the proposal, and take account of the views of those consulted, in accordance with regulations.

27A Dissolution of further education corporations: England

(1) This section and section 27B apply if, after complying with section 27, a further education corporation in England resolve that the corporation should be dissolved on a specified date.

(2) "The dissolution date" means the date specified in a resolution under subsection (1).

(3) The corporation must notify the Secretary of State of the resolution and the dissolution date as soon as reasonably practicable.

(4) The corporation are dissolved on the dissolution date.

27B Dissolution of further education corporations: England: transfer of property, rights and liabilities

(1) At any time before the dissolution date, the corporation may transfer any of their property, rights or liabilities to such person or body, or a person or body of such description, as may be prescribed.



1 Nov 2011 : Column 1140

(2) The corporation may do so only with the consent of the person or body concerned.

(3) A transfer under subsection (1) has effect on the dissolution date.

(4) Subsection (5) applies if a person or body prescribed, or of a description prescribed, under subsection (1) is not a charity established for charitable purposes which are exclusively educational purposes.

(5) Any property transferred to the person or body must be transferred on trust to be used for charitable purposes which are exclusively educational purposes.

27C Dissolution of further education corporations: Wales

(1) Subject to the following provisions of this section, the Welsh Ministers may by order provide for-

(a) the dissolution of a further education corporation in Wales, and

(b) the transfer to any person mentioned in subsection (2) or (3) of property, rights and liabilities of the corporation.

(2) Such property, rights and liabilities may, with the consent of the person or body concerned, be transferred to-

(a) any person appearing to the Welsh Ministers to be wholly or mainly engaged in the provision of educational facilities or services of any description, or

(b) any body corporate established for purposes which include the provision of such facilities or services.

(3) Such property, rights and liabilities may be transferred to a higher education funding council.

(4) Where the recipient of a transfer under an order under this section is not a charity established for charitable purposes which are exclusively educational purposes, any property transferred must be transferred on trust to be used for charitable purposes which are exclusively charitable purposes.

(5) An order under this section may apply section 26 with such modifications as the Welsh Ministers consider necessary or desirable.

(6) Before making an order under this section in respect of a further education corporation, the Welsh Ministers must consult-

(a) the corporation, and

(b) the Chief Executive of Skills Funding, if the institution conducted by the corporation mainly serves the population of England, or receives financial support from the Chief Executive of Skills Funding.""

83C: Schedule 12, page 91, line 21, leave out paragraph 5 and insert-

" For section 29 substitute-

"29 Government and conduct of designated institutions

(1) This section applies to a designated institution, other than-

(a) an institution conducted by a company, or

(b) an institution conducted by an unincorporated association, if the order designating the institution provides for its exemption.

(2) For each designated institution to which this section applies, there is to be-

(a) an instrument providing for the constitution of a governing body of the institution (to be known as the instrument of government), and

(b) an instrument in accordance with which the institution is to be conducted (to be known as the articles of government).

(3) In sections 29A to 29C-

"instrument" means an instrument of government or articles of government;

"regulatory instrument", in relation to an institution, means-

(a) an instrument of government or articles of government, or

(b) any other instrument relating to or regulating the institution.



1 Nov 2011 : Column 1141

29A First post-designation instruments and articles of designated institutions: England and Wales

(1) The first post-designation instrument and articles of government of a designated institution to which section 29 applies must each comply with subsection (3) and (if the institution is in Wales) subsection (6).

(2) The "first post-designation instrument and articles of government" of a designated institution are the first instrument of government and articles of government that the institution has after the designation takes effect.

(3) The instrument must meet one of the following requirements-

(a) the instrument was in force when the designation took effect and is approved for the purposes of this section by the appropriate authority;

(b) the instrument-

(i) is made in pursuance of a power under a regulatory instrument or (where there is no such power) by the governing body of the institution, and

(ii) (in either case) is approved for the purposes of this section by the appropriate authority;

(c) the instrument is made by the appropriate authority by order.

(4) An instrument made by the governing body under subsection (3)(b) or the appropriate authority under subsection (3)(c) may replace wholly or in part an existing regulatory instrument.

(5) Before making an instrument under subsection (3)(c), the appropriate authority must, so far as it appears practicable to do so, consult-

(a) the governing body of the institution, and

(b) where there is power under a regulatory instrument to make the instrument, and that power is exercisable by persons other than the governing body of the institution, the persons by whom the power is exercisable.

(6) If the institution is in Wales, provision made by the instrument in relation to the appointment of members of the governing body must take into account the members who may be appointed by the Welsh Ministers under section 39 of the Learning and Skills Act 2000.

(7) In this section "the appropriate authority"-

(a) in relation to an institution in England, means the Secretary of State;

(b) in relation to an institution in Wales, means the Welsh Ministers.

29B Changes to instruments and articles: England

(1) This section applies to a designated institution in England which is an institution to which section 29 applies.

(2) The governing body of the institution may modify or replace its instrument of government and articles of government.

(3) The instrument of government and articles of government (as modified or replaced)-

(a) must comply with the requirements of Part 2 of Schedule 4, and

(b) subject to that, may make such other provision as may be necessary or desirable.

29C Changes to instruments and articles: Wales

(1) This section applies to a designated institution in Wales which is an institution to which section 29 applies.

(2) Subject to subsection (3), the governing body of the institution may modify, replace or revoke its instrument of government and articles of government if -

(a) the instrument falls within section 29A(3)(a),

(b) the instrument was made by the governing body, or

(c) the instrument was made in pursuance of a power under a regulatory instrument, where there is no other power to modify it.



1 Nov 2011 : Column 1142

(3) An instrument approved under section 29A(3)(a) or (b) by the Welsh Ministers may not be modified, replaced or revoked without the consent of the Welsh Ministers.

(4) The Welsh Ministers may by order modify, replace or revoke the instrument of government or articles of government of the institution.

(5) Before making an order under subsection (4), the Welsh Ministers must, so far as it appears practicable to do so, consult-

(a) the governing body of the institution, and

(b) where there is power under a regulatory instrument to make the instrument, and that power is exercisable by persons other than the governing body of the institution, the persons by whom the power is exercisable.""

83D: Schedule 12, page 91, line 22, at end insert-

" In section 30 (special provision for certain institutions), in subsection (1) for "section 29" substitute "sections 29 to 29C"."

83E: Schedule 12, page 91, line 36, at end insert-

"( ) in subsection (6)(e)(ii), for "27" substitute "27C or 33P";"

Amendments 83A to 83E agreed.

Amendment 84 not moved.

Amendments 84ZA to 84ZG

Moved by Lord Hill of Oareford

84ZA: Schedule 12, page 91, line 42, at end insert-

" In section 33I(2) (instrument and articles of government of sixth form college corporations)-

(a) in paragraph (a), after "requirements of" insert "Part 2 of";

(b) for paragraph (b) substitute-

"(b) subject to that, may make such other provision as may be necessary or desirable."

84ZB: Schedule 12, page 92, line 23, leave out paragraphs 14 and 15 and insert-

" For section 33L substitute-

"33L Changes to instruments and articles

(1) A sixth form college corporation may modify or replace their instrument of government or articles of government.

(2) A sixth form college corporation to which section 33J applies may do the things mentioned in subsection (1) only with the consent of the trustees of the relevant sixth form college."

For section 33N substitute-

"33N Proposals for dissolution of sixth form college corporations

(1) This section applies if a sixth form college corporation propose that the corporation should be dissolved.

(2) The corporation must publish details of the proposal, and such other information as may be prescribed, in accordance with regulations.

(3) The corporation must consult on the proposal, and take account of the views of those consulted, in accordance with regulations.

33O Dissolution of sixth form college corporations

(1) This section and section 33P apply if, after complying with section 33N, a sixth form college corporation resolve that the corporation should be dissolved on a specified date.

(2) "The dissolution date" means the date specified in a resolution under subsection (1).

(3) The corporation must notify the Secretary of State of the resolution and the dissolution date as soon as reasonably practicable.

(4) The corporation are dissolved on the dissolution date.

33P Dissolution of sixth form college corporations: transfer of property, rights and liabilities



1 Nov 2011 : Column 1143

(1) At any time before the dissolution date, the corporation may transfer any of their property, rights or liabilities to such person or body, or a person or body of such description, as may be prescribed, subject to subsection (4).

(2) The corporation may do so only with the consent of the person or body concerned.

(3) A transfer under subsection (1) has effect on the dissolution date.

(4) In the case of a sixth form college corporation to which section 33J applies, any property held by the corporation on trust for the purposes of the relevant sixth form college must be transferred to the trustees of the relevant sixth form college.

(5) Subsection (6) applies if a person or body prescribed, or of a description prescribed, under subsection (1) is not a charity established for charitable purposes which are exclusively educational purposes.

(6) Any property transferred to the person or body must be transferred on trust to be used for charitable purposes which are exclusively educational purposes.

(7) Subsection (6) does not apply to property transferred to the person or body by virtue of subsection (4).""

84ZBA: Schedule 12, page 94, line 8, leave out paragraph 17 and insert-

"17 Section 49A (guidance about consultation with students and employees), as it has effect in relation to England, is repealed."

84ZC: Schedule 12, page 94, line 13, at end insert-

" Section 51 (publication of proposals) is repealed."

84ZD: Schedule 12, page 94, line 24, at end insert-

"( ) In subsection (7), after "include" insert "- (a)" and at the end insert-

"(b) a direction requiring a governing body to make a resolution under section 27A(1) for the body to be dissolved on a date specified in the direction.

(7A) A governing body to which a direction such as is mentioned in subsection (7)(b) is given is to be taken for the purposes of section 27A(1) to have complied with section 27 before making the resolution required by the direction.""

84ZE: Schedule 12, page 95, line 26, at end insert-

"( ) In subsection (7), after "include" insert "- (a)" and at the end insert-

"(b) a direction requiring a governing body to make a resolution under section 33O(1) for the body to be dissolved on a date specified in the direction.

(7A) A governing body to which a direction such as is mentioned in subsection (7)(b) is given is to be taken for the purposes of section 33O(1) to have complied with section 33N before making the resolution required by the direction.""

84ZF: Schedule 12, page 96, line 22, at end insert-

" In section 88 (stamp duty)-

(a) for "27" substitute "27B, 27C";

(b) for "33N" substitute "33P".

In section 88A (stamp duty land tax)-

(a) for "27" substitute "27B, 27C";

(b) for "33N" substitute "33P"."

84ZG: Schedule 12, page 96, line 23, leave out paragraph 32 and insert-

" (1) Section 89 (orders, regulations and directions) is amended as follows.

(2) In subsection (2)-

(a) for "22, 29(6) and (8)" substitute "22ZA(1) and (4), 29A(3)(c), 29C(4)";

(b) after "33A(5)(b)" insert "33J(2), 33K(1),";

(c) omit "or section 33L".

(3) In subsection (3), after "subsection (3A)" insert "or (3B)".

(4) After subsection (3A) insert-



1 Nov 2011 : Column 1144

"(3B) An order falls within this subsection if-

(a) it is an order revoking (wholly or in part) an order under section 15 or 16 and is made by virtue of section 27A(4), or

(b) it is an order revoking (wholly or in part) an order under section 33A, 33B or 33C and is made by virtue of section 33O(4).""

Amendments 84ZA to 84ZG agreed.

Amendment 84ZH had been withdrawn from the Marshalled List.

Amendments 84ZJ and 84ZK

Moved by Lord Hill of Oareford

84ZJ: Schedule 12, page 96, line 26, after "(1)" insert "-

(a) after the definition of "further education" insert-

""further education corporation in England" means a further education corporation established to conduct an institution in England;

"further education corporation in Wales" means a further education corporation established to conduct an institution in Wales;";

(b) "

84ZK: Schedule 12, page 96, line 29, after "(index)" insert "-

(a) after the entry for "further education corporation" insert-

"further education corporation in England

section 90(1)

further education corporation in Wales

section 90(1)"

(b) "

Amendments 84ZJ and 84ZK agreed.

Amendment 84ZL

Moved by Lord Hill of Oareford

84ZL: Schedule 12, page 96, line 31, leave out paragraph 35 and insert-

" For Schedule 4 substitute-

"SCHEDULE 4Instruments and articles of governmentPart 1General

1 In this Schedule-

"instrument" means an instrument of government or articles of government;

"the institution" means-

(a) in the case of a further education corporation, the institution which the corporation are established to conduct;

(b) in the case of the governing body of a designated institution, the institution;

(c) in the case of a sixth form college corporation, the relevant sixth form college.

Part 2England

2 This Part applies in relation to-

(a) a further education corporation in England;

(b) the governing body of a designated institution in England;

(c) a sixth form college corporation.



1 Nov 2011 : Column 1145

3 In this Part "the body" means-

(a) in the case of a further education corporation or a sixth form college corporation, the corporation;

(b) in the case of a governing body, the governing body.

4 An instrument must provide for-

(a) the number of members of the body,

(b) the eligibility of persons for membership, and

(c) the appointment of members.

5 (1) An instrument must make provision about the procedures of the body and the institution.

(2) In particular, an instrument must specify how the body may resolve for its dissolution and the transfer of its property, rights and liabilities.

6 (1) An instrument must make provision for there to be-

(a) a chief executive of the institution, and

(b) a clerk to the body.

(2) An instrument must make provision about the respective responsibilities of the body, the chief executive and the clerk.

(3) The responsibilities of the body must include-

(a) in the case of a sixth form college corporation to which section 33J applies, the preservation and development of the educational character and mission of the institution and the oversight of its activities;

(b) in the case of any other sixth form college corporation, a further education corporation or a governing body, the determination and periodic review of the educational character and mission of the institution and the oversight of its activities;

(c) in any case, the effective and efficient use of resources, the solvency of the institution and the body and the safeguarding of their assets.

7 An instrument must require the body to publish arrangements for obtaining the views of staff and students on the matters for which the body are responsible under paragraph 6(3)(a) or (b).

8 An instrument must permit the body to change their name with the approval of the Secretary of State.

9 An instrument must specify how the body may modify or replace the instrument of government and articles of government.

10 An instrument must prohibit the body from making changes to the instrument of government or articles of government that would result in the body ceasing to be a charity.

11 An instrument must provide for-

(a) a copy of the instrument to be given free of charge to every member of the body,

(b) a copy of the instrument to be given free of charge, or at a charge not exceeding the cost of copying, to anyone else who requests it, and

(c) a copy of it to be available for inspection at the institution on request, during normal office hours, to every member of staff of, and student at, the institution.

12 An instrument must provide for the authentication of the application of the seal of the body.

Part 3Wales

13 This Part applies in relation to further education corporations in Wales.

14 Provision made by an instrument in relation to the appointment of members of the corporation must take into account the members who may be appointed by the Welsh Ministers under section 39 of the Learning and Skills Act 2000.

15 (1) An instrument must provide for-

(a) the number of members of the corporation,

(b) the eligibility of persons for membership, and

(c) the appointment of members.



1 Nov 2011 : Column 1146

(2) An instrument may provide for the nomination of any person for membership by another, including by a body nominated by the Welsh Ministers.

16 An instrument must provide for one or more officers to be chosen from among the members.

17 An instrument may-

(a) provide for the corporation to establish committees, and

(b) permit such committees to include persons who are not members of the corporation.

18 An instrument may provide for the delegation of functions of the corporation to-

(a) officers or committees, or

(b) the principal of the institution.

19 An instrument may provide for the corporation to pay allowances to its members.

20 An instrument must provide for the authentication of the seal of the corporation.

21 An instrument must require the corporation to-

(a) keep proper accounts and proper records in relation to the accounts, and

(b) prepare in respect of each financial year of the corporation a statement of accounts.

22 An instrument must-

(a) provide for the appointment of a principal of the institution, and

(b) determine which functions exercisable in relation to the institution are to be exercised by the corporation, its officers or committees and which by the principal of the institution.

23 An instrument must make provision about the procedures of the corporation and the institution.

24 An instrument must provide-

(a) for the appointment, promotion, suspension and dismissal of staff, and

(b) for the admission, suspension and expulsion of students.

25 An instrument may make provision authorising the corporation to make rules or bye-laws for the government and conduct of the institution, including in particular rules or bye-laws about the conduct of students, staff or both.""

Amendment 84ZLA (to Amendment 84ZL) not moved.

Amendment 84ZL agreed

Amendments 84ZM and 84ZN

Moved by Lord Hill of Oareford

84ZM: Schedule 12, page 96, line 33, at end insert-

" (1) LSA 2000 is amended as follows.

(2) In section 110 (secondary education), in subsection (5), for "51(3A)" substitute "16A(2)".

(3) In section 143 (further education sector: designated institutions), in subsection (6)(b), for "section 29" substitute "any of sections 29 to 29C"."

84ZN: Schedule 12, page 96, line 33, at end insert-

" In section 22 of the Further Education and Training Act 2007 (consultation of further education institutions), in the new section 49A to be inserted into FHEA 1992 in relation to Wales-

(a) in subsection (1)-

(i) after "further education sector" insert "in Wales";

(ii) for "appropriate authority" substitute "Welsh Ministers";

(b) omit subsection (3)."

Amendments 84ZM and 84ZN agreed.



1 Nov 2011 : Column 1147

Amendment 84A

Moved by Baroness Jones of Whitchurch

84A: After Clause 52, insert the following new Clause-

"Academies: school teachers' qualifications

(1) EA 2002 is amended as follows.

(2) In section 133 (requirement to be qualified), in subsection (6) (schools to which this section applies), after paragraph (b) insert-

"(c) an Academy, including a free school,

(d) a city technology college, or

(e) a city college for the technology of the arts."

(3) At the end of subsection (6) of that Act insert-

"(7) Nothing in subsection (6) should prohibit a school's ability to employ non-qualified individuals to provide educational support in relation to non-'specified work' in so far as it would positively contribute to pupils' educational development".

(4) Any individual employed under the terms of subparagraph (3) above shall be supervised in their work by a qualified teacher."

Baroness Jones of Whitchurch: My Lords, Amendment 84A has a simple but fundamental aim-that is, to ensure that all teachers practising in the classroom have qualified teacher status. Until recently this was the case in all state schools but the Government have decided that this will not be a requirement for teachers in free schools. This was debated at length in Grand Committee and the need for teachers to be qualified, as I recall, had virtually unanimous support. For many noble Lords it was what I would colloquially describe as a no-brainer. During the debate the Minister said that the Government's reasoning for this was,

"simply intended to allow the possibility of greater innovation at the edges of the maintained sector".-[Official Report, 14/9/11; col. GC 227.]

He repeated this argument in a letter to me of 25 October. I do not think that many of us were convinced by this argument at the time. It was, with respect, completely lacking in evidence or justification.

The Minister then went on to argue in his letter that a skill in measuring the progress of each pupil and the delivery of good-quality subject materials were important elements of teacher training but that he,

My simple challenge back to him is: how would he know? How would parents or even head teachers know if these people were truly up to scratch?

This issue goes to the heart of the professional standing of the teaching profession. Whereas most sensible participants in this debate-including the teachers-would argue that the challenge is to drive up standards in the classroom and increase professionalism, the Government seem to be pulling in the opposite direction.

In our earlier debate, a number of noble Lords contrasted the status of teachers with other professions. For example, we wondered whether allowing doctors in certain hospitals not to be qualified would enable "greater innovation". We wondered what concerns colleagues would have about the standard of patient care in those circumstances and what would be the impact on successful treatment rates. Of course, you can make a similar analogy with other professions.

It is difficult to see why positive innovation is more likely to come about where people are not trained to the required standards in their profession. It is all too easy to see, in the case of unqualified teachers at free

1 Nov 2011 : Column 1148

schools, how cohorts of children could be failed by teaching quality below the expected level of a qualified teacher.

Our amendment in part is about the Government showing to the teaching profession that they value and want to build on the professionalism in the sector. More than that, it is about ensuring standards in what we believe is one of the most important jobs that it is possible to have. It is in the interests of us all that the next generation is taught to a high standard by trained professionals, and it will do us all a disservice if it is not.

As I mentioned in Grand Committee, the reasoning for the Government's position is unclear. I noted that the Secretary of State had said of free schools:

"We want the dynamism that characterises the best independent schools to help drive up standards in the state sector ... In that spirit, we will not be setting requirements in relation to qualifications".-[Official Report, Commons, 15/11/10; col. 623.]

I question the presumption that a highly performing independent school is the result of the fact that its teachers do not need to be qualified, although of course many already are. Surely the more significant factors are those such as selection processes and smaller class sizes.

If the Government are serious about building on the successes of the previous Government in raising standards of teaching; if the Prime Minister and the Deputy Prime Minister are serious when they say in the White Paper that is indeed called The Importance of Teaching,

and if the Government seriously want to learn from international best practice, about which the OECD says:

how can the Government at the same time say that in some of our schools teachers do not need to be qualified to teach? As the noble Lord, Lord Storey, argued in Grand Committee, it is almost Dickensian.

As colleagues rightly said in Committee, we are not saying that everyone who stands in front of a class should be qualified. I recognise that, for example, trainee teachers are and should be permitted to teach as part of their training. I accept the points made that people without teaching qualifications, such as teaching assistants, add real value to the classroom and make a difference to children's lives. What is important and what our amendment aims to achieve is that the progression of each pupil should be overseen by someone with a teaching qualification.

It is a basic right of pupils to be taught by a qualified teacher. Parents expect it and the teaching profession seeks it. There is no research or evidence to show that pupils will benefit from this change. I hope noble Lords will feel able to support our amendment. I beg to move.

Baroness Massey of Darwen: My Lords, I am seriously concerned about the issue of having non-qualified teachers in a classroom. Qualifications for teaching are not just about being qualified to teach maths,

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science or languages; they are about having some knowledge of child development. It is crucial for teachers to learn about how children grow, how they learn to think and how they learn at different ages. It is different if a parent or grandparent goes into a classroom to hear children read or other such activities. Those people are under supervision and fit in with what the class is doing anyway. I would not like someone who was not qualified to be teaching chemistry or physics. It seems quite a dangerous thing to happen. I certainly would not allow into my house an electrician or a plumber who was not qualified. Why would we allow people who are not qualified to teach children? My young nephew recently trained to be a soccer coach for young people. He had to learn not only the skills of teaching soccer but various techniques of teaching as well as first aid. Having non-qualified people in classrooms could miss out all those extra things that teachers learn.

I have some questions for the Minister. How will these non-qualified teachers be recruited? Who will they be? Supposing that they were predominant in a school, what kind of education would those children receive? This is a very serious issue. I look forward to the Minister's response.

Baroness Walmsley: My Lords, the noble Baroness, Lady Jones, used the analogy of unqualified doctors in a hospital. While we are not talking about life and death here, we are talking about life chances. I know that the Government have an enormous respect for teachers and a genuine intention to improve the professionalism of teachers right across the board, but I have some questions about how this particular freedom would work. For example, would there be a maximum percentage of people teaching children in a free school who did not have a teaching qualification? How would the number of people teaching in a free school without a qualification be monitored? Would there be continuous professional development to make up the gap identified by the noble Baroness, Lady Massey, when someone might be particularly good at IT or a particular modern language, which have been used as examples by the Government, but had not had that training in child development and classroom management-another very important thing taught in teacher training? How will the Government monitor this and make sure that the standard of what the children in schools receive is of the highest? That is what matters in the end. It does not matter so much what is written on a piece of paper as long as those children who walk through that school door get a good offer from the school.

I hope that my noble friend the Minister will answer all those questions. It has been said that this is envisaged to operate in the margins of maintained schools. That may be all very well, because plenty of different people who come in to contribute to children's experience in schools do not have qualified teacher status. We all understand the importance of the direction of teachers and their overall experience in the school. I would not want them to be operating any more than in the margins of the teaching workforce in any particular school. I hope that my noble friend the Minister can answer those questions.



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Baroness Perry of Southwark: I yield to no one in recognising the importance of the right kind of training for teachers and I have spent a great deal of my life in working on trying to get the training right. It is extremely important for the vast majority of teachers that they have been trained and that they understand the things that the noble Baroness mentioned, such as child development, and have an understanding of how children learn, and so on. But I also think it extremely important that we have some flexibility for the outstanding person who brings a particular gift, talent and knowledge. I remember a case some years ago, I think in the 1990s, of a professor of mathematics, an outstanding mathematician, who had taken fairly early retirement and decided that he would like to teach younger children, in a secondary school, to pass on his passion for mathematics to young people. He discovered that because the regulations said that he had not been trained as a teacher he could not do that. It is a mistake-a mistaken idea of what is needed in a school.

As my noble friend Lady Walmsley has said, I would want the overwhelming majority of teachers to have been trained, but it is important to have flexibility to bring in the right kind of person to fill a niche in a school, someone who can bring perhaps a very special talent and range of experience, which would be exactly what the school needed and would hugely contribute to children as they go through their schooling.

4.30 pm

Lord Knight of Weymouth: My Lords, this is an important amendment and it is important for the Minister to respond to the questions that have been raised. When the Government were first formed, they made great store of talking up the importance of teaching. Indeed, the title of the first White Paper that the new department published was The Importance of Teaching. Just now, I looked up the discussion document on teacher training published in June this year, where the Secretary of State, Michael Gove, begins his foreword:

"If we want to have an education system that ranks with the best in the world, then we need to attract the best people and we need to give them outstanding training".

Clearly, if we believe what the Secretary of State is saying on that aspect of the Government's policy, the Secretary of State understands the importance of trained, qualified teachers.

I listened carefully to what the noble Baroness, Lady Perry, said in preceding me and it is important to offer people the opportunity to come in with other expertise and knowledge. However, there are ways of doing that while still preserving the importance of qualified teachers. For example, it should be easier for people to become qualified and to train on the job in terms of pedagogy. What I would not want to see is this opening the door to a sort-of "Jamie's Dream School" approach. Just because you are brilliant in your field-you might even be a brilliant noble Lord-it does not mean that you are necessarily going to be a brilliant teacher. I think that those of us who watched any of the episodes of "Jamie's Dream School" will have been appalled at times by the inability of some of those people, brilliant in their subject, to relate to children and to teach them. It needs some training so,

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yes, we should allow some of those brilliant people to enter the teaching profession but we should also allow them an opportunity to train and gain pedagogical understanding as they do so, under the supervision of a qualified teacher. That is what this amendment offers.

I am concerned that as the free school policy develops, it is being informed by a belief on the part of some in the department that if it works in independent schools, it must work in free schools and in the maintained sector-because independent schools can have non-qualified teachers, it must be fine. We have heard the parallels with health, for example, and about whether it is fair to presume that if I bowl up to a hospital and it has let somebody practise, it will be all right and it does not really matter whether they are qualified. I do not like that idea. I would not trust someone to treat me as a medical practitioner unless they were qualified and I would not want to trust my children to a teacher unless that practitioner was qualified.

Many or most independent schools do a great job but they do that with a very narrow set of pupils. I know that if my friends in the Headmasters' and Headmistresses' Conference were listening, they would be shouting at me but it is fair to say that it is often the case that those pupils are from fairly narrow backgrounds and do not, by and large, have quite the same behavioural challenges or some of the obstacles that have to be overcome in the maintained sector. I would be looking for training to inculcate those sorts of skills in teachers.

This is a good amendment. It seeks to give some guarantees on quality. We have had debates during this Report stage on the weakening of admissions and on some schools being exempted from inspection by Ofsted. We seem consistently to be weakening some of the measures and guarantees of quality in order to pursue and make a success of this free school policy in terms of numbers and flexibility. If we are to go with the free-market approach to education, we need to hang on all the more tightly to guarantees of the quality of the workforce, the quality of the inspection and fair admissions. We have also talked about fair funding. In the end, I will always come back to this in debates on this Bill: I fear that unless we can give some guarantees about the workforce being qualified, we will lose quality in some of these free schools.

In the United States, some of the charter schools were set up with the best of intentions by parents who were dissatisfied with what was going on locally. They might think, "Well, I'm okay as I have done a bit of home education myself. I'll rock up and teach-it'll be fine". They are very well intentioned, and it might be fine for their kids, but I am not persuaded that it is fine. The experience of so many charter schools in the United States is that it is not fine; so many of them have failed. There are some great ones, but many of them are not great. I do not want to take that risk in this country.

Lord Northbourne: My Lords, this suggests that teaching is not entirely about qualifications; it is also a gift of God. However, that was not what I intended to ask. I wanted to ask the mover of the amendment what is meant by "non-specified work." I am concerned -so are the Government, and indeed we should all be

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concerned-about, for example, those who do not have a tendency to be very successful in academic qualifications and who need to get fulfilment in life from their work, or from other skills. Why should not someone be taught to use a lathe by someone who is brilliant at using a lathe, rather than by someone who has an academic education? Or perhaps I have got it wrong.

Lord Sutherland of Houndwood: My Lords, this is an amendment about professionalism, and I think everyone who has spoken supports the importance of professionalism. I commend the Government for what they have done in this area already, as well as the previous Government, as important things were done then.

However, I have reservations about a universal requirement for a particular kind of qualification. If we take the example of health, I would not mind being nursed by a nurse who was not a graduate, although actually these days, that does not seem to be on. I do not want to push that analogy at all, but to point up the remarks of the noble Baroness, Lady Perry: there may be exceptions. There may be individual cases that, if we were too rigorous, would be excluded. However, the question-which I believe has just been raised -is of proportionality, and whether it can become disproportionate in, for example, free schools.

There is a real danger there, and I have already expressed worries about inspection and exemption from inspection in these areas, which is why I think the questions raised by the noble Baroness, Lady Walmsley, are fundamental. I approve of the use of the word "normally" here, and I wish it was in more legislation, but "normally" must then be monitored. I hope there are clear answers to the questions that she has asked.

Lord Storey: My Lords, I have said before in this House that the most important thing for a student is the quality of the teacher-not the qualifications, necessarily, but the quality. There can be the best buildings, the best resources, but unless there is quality teaching, then that child will not be able to make the progress that they deserve. If you have poor teaching and a poor teacher, that child loses the year, and the year can never be repeated. It is lost for good.

Since I have come to this House, the one thing that has struck me in education debates is that in every speech and contribution I have heard, the child is at the centre. I have felt quite emotional, to be honest, about the care that has come to me from the comments that people have made. We had a debate on special educational needs, and I was absolutely stunned by the remarkable contributions from everybody in this House.

However, one thing said constantly in that debate was that it needs to be about training, and about understanding the child. You cannot just put anybody in and expect them to be able to teach, understand, and relate to the child. It has to be a whole package. That is not to say that everybody must be a qualified teacher. There are examples of people who have a natural gift for teaching but are not qualified. How do we make that system work? Well, we have a system presently that allows that to happen.



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I speak from practical experience. At the tail end of the summer term, I had a situation in my school where a teacher left. Working in that classroom was a teaching assistant; an advanced, higher-level teaching assistant, who was-to use an expression-"stunning". The pupils thought the world of him. Being a conscientious, thoughtful person, I checked with my local authority, which said, "Yes, as long as he has a higher-level qualification and you're happy with him, he can take the class", which he did for three weeks. He was fantastic. The children progressed. I have to say, I would rather have had him than-no, perhaps I should not say that. He progressed and did incredibly well. He was also supported by the school and other teachers, who were able to compensate for any areas in which he needed to develop. As a result of that, he has decided that he will not just be a higher-level teaching assistant; he will go on to be a teacher.

There are occasions when you can put people who do not have the formal qualifications in the classroom, and they can do a remarkable job. My noble friend Lady Benjamin constantly reminds me that pupils from the Caribbean often need a very different type of teacher, and that maybe the qualities that we currently have in our teaching profession are not always able to deal with those situations. That is dealt with, again, by encouraging teaching assistants who are working with teachers in the school environment.

When the Minister replies I hope he will deal with the questions that have been asked by my noble friend Lady Walmsley. I also hope he will reflect on how we might combine both desires.

I do not have a problem with free schools. I remember the first free school, which was Scotland Road Free School in Liverpool in the 1960s. What I have a problem with is saying that you can have non-qualified teachers in an educational establishment. If free schools are to be successful, they cannot be seen to be on the margins. Parents will soon think, "Oh, these are inferior places. They haven't got any qualified support in those schools". They will not send their children to them once the initial idea has started.

I will make one further point. There are whole areas of teaching that, in a complex society and a modern world, people who work with children need to know about-safeguarding, for example. Are we saying that these adults who will teach in free schools will not have any training in safeguarding, or in the problems of special educational needs? The list goes on. We need to be absolutely sure that we get this right.

Baroness Morris of Yardley: My Lords, I also support this amendment, on which there is a fair degree of unanimity across the Chamber. My position is approximately the same as that of the noble Lord, Lord Sutherland. We do not want schools where everybody has the same qualification. Over the past 10 to 15 years, we have very much moved to having different qualifications in schools. Clearly, what we want is for someone to be qualified to do the job that we are asking them to do, and for people to know what they are qualified to do and what their training is. We have never had that in the past. We have been a

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one-qualification profession. We ought to be more like medicine and move away from that, to having a number of different qualifications.

We have a record of getting this right. The movement of bursars into the maintained sector has been hugely successful, as have the teaching assistants and higher-level teaching assistants to which the noble Lord, Lord Storey, just referred. Therefore, we are on a journey of trying to get this right. The issue that faces us now is: where do we go next? I should have thought that where we go next is to look at the evidence of what has worked so far, the skills that are needed in the school and what training is needed. I absolutely accept that there will be some individuals who have experiences and a skill set that teachers and head teachers will want to use in schools. Some of them, as the noble Baroness, Lady Perry, said, will be absolutely excellent in their field. They may have a skill set that teaching would go alongside.

There is a fair degree of unanimity across the Chamber over our vision of what we want schools to be like. Therefore, the question is whether the legislation that the Government are putting forward will arrive at that end. I do not think that it will. I cannot see why this big debate about how we get a qualified workforce-whatever the qualification may be-is being squashed into free schools. I would have thought the debate was bigger than yet another freedom that we can give to free schools. The debate is about the qualifications we need for all our schools, whether they be maintained schools, community academies or free schools. The Minister must address in his reply what this has to do with free schools. It has to do with all schools. I am not sure why he has cornered and corralled this debate into free schools. It is bigger than that.

4.45 pm

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