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Points of Order
4.31 pm
Mr. Graham Stuart (Beverley and Holderness) (Con): On a point of order, Mr. Speaker. For Opposition Back Benchers, today felt like a particularly poor day in the history of shameless failures to answer questions. May I ask—
Mr. Speaker: Order. I am not going to extend the statement. As for the word “shameless”, we should try to use temperate language when discussing such matters.
Mr. Peter Bone (Wellingborough) (Con): On a point of order, Mr. Speaker. It is helpful for Back-Bench Members to have a copy of a Minister’s statement once the Minister has made it. On this occasion, copies of the statement quickly went around the Government Benches, but they were very late arriving on my Bench, and that makes things a little difficult for Back Benchers.
Mr. Speaker: I will look into the matter, and I thank the hon. Gentleman for drawing it to my attention.
Education and Skills Bill [Ways and Means]
Motion made, and Question proposed,
That, for the purposes of any Act resulting from the Education and Skills Bill, it is expedient to authorise the charging of fees in respect of inspections by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills of independent educational institutions.— [Jim Knight.]
4.32 pm
Mr. Nick Gibb (Bognor Regis and Littlehampton) (Con): The Minister for Schools and Learners gave a disappointingly short introduction to the motion. I hope that he will have a chance to explain the motion to the House. It relates to the fee-charging provisions in what is now clause 97, which enables Ofsted to charge fees for inspections of schools in the independent sector. The explanatory note to the Bill as originally drafted says:
“The Government intends to use the power...to set fees for inspections that are no higher than is necessary to recover some or all of the costs associated with the inspections.”
As the fee recovers costs and no more, there was no need for a Ways and Means motion to be passed by the House. The memorandum of delegated powers, which the Government published at the same time as the Bill, said that the clause
“extends the power currently contained in s164(9) of the Education Act 2002 to require payment of inspection fees.”
The aim of the power is to limit the burden of inspection of independent education institutions on the public purse. Lords amendments Nos. 81 and 151, passed in another place, went further than that: they changed the wording of the clause so that it is now possible for the fees charged to exceed the cost of the inspection. That potentially changes the nature of the fee so that it is closer to a tax. That, of course, is why a Ways and Means motion is now necessary.
Lord Adonis was uncharacteristically opaque about the reasons for these changes when he introduced the amendments in another place, saying merely that they
“ensure that the Government’s policy in relation to the setting of inspection fees...can be implemented.”—[ Official Report, House of Lords, 21 July 2008; Vol. 703, c. 1600.]
Can the Minister confirm whether the statement in the original explanatory notes that the fees will be
“no higher than is necessary to recover some or all of the costs associated with the inspections”
is still true? If it is no longer true, why is he using these fee-charging provisions as a way of raising revenue or cross-subsidising other aspects of Ofsted’s work? If, in his view, it is still true, why does he think that this Ways and Means motion is necessary?
4.35 pm
The Minister for Schools and Learners (Jim Knight): The motion in the name of my right hon. Friend the Financial Secretary to the Treasury is necessary in order to take forward the purpose of clause 97, which is to allow inspection fees to be paid annually and in advance of inspections carried out by the chief inspector. It carries forward and extends provisions already in place in the existing legislation.
As the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) said, amendment No. 81 will enable the Government to carry out their stated policy aims in relation to fees for the inspection of independent educational institutions. I think that this is the explanation that he is after. We propose that an annual inspection fee will be paid by all independent educational institutions, which will spread the cost of an inspection every three years, and that fees may be charged in advance of the inspection. One or more fees may be charged in relation to an individual inspection. That will allow for a fee to be paid each year where an inspection takes place every three years. This approach replaces the inspection fee system whereby schools were expected to pay their fee either in a lump sum immediately after inspection or in two instalments. Allowing institutions to spread the cost will help small institutions and those with limited budgets who may struggle to pay under the current system.
The annual fee, which we expect to be paid in October each year, will be calculated on the basis of the head count contained in the preceding annual return. Pupil numbers may fluctuate upwards or downwards, which means that in some cases the cost of the inspection may not reflect the fee paid. However, fees will be recalculated every October to take account of the latest available pupil numbers taken from the January annual return. That will minimise any under-charging or over-charging. In effect, the explanatory notes are right, but there is that small margin for error. It would not be practical to look at pupil numbers more than once a year for the purposes of setting that year’s annual fee, as the January annual return is the only source of pupil numbers. I know that the hon. Gentleman is a great champion of reducing burdens on independent schools.
Kelvin Hopkins (Luton, North) (Lab): Does my right hon. Friend agree that independent schools already get a very generous subsidy from the taxpayer through tax benefits arising from their charitable status?
Jim Knight: My hon. Friend must be careful to be fully cognisant of the whole range of independent schools, not only those that might be members of the Independent Schools Council, for example. The Charity Commission is ensuring that independent schools that have charitable status are earning it, and I am happy to see the difference that the new head of the commission is making in that regard.
There may also be a very small number of cases in which an institution, having paid fees in advance, closes before the periodic inspection takes place. Amendment No. 81 contains a power that will allow fees paid in such cases not to be refunded. This policy is to prevent institutions from exploiting the system by temporarily closing before an inspection is due. If refunds were made, institutions could then apply to re-register and pay only the initial registration fee, which we propose would be £500. In the majority of cases, that sum would be considerably lower than the fees refunded. There would be nothing to stop an institution continuing to exploit the system indefinitely if refunds were allowed.
I should reiterate that overall we intend to use the powers in order to set fees that are no higher than is necessary to recover some or all of the costs associated with inspections. I hope that with that clarification the House will be happy to approve the motion.
Education and Skills Bill (Programme) (No. 3)
Motion made, and Question put forthwith, pursuant to Standing Order No. 83A (Programme motions),
That the following provisions shall apply to the Education and Skills Bill for the purpose of supplementing the Orders of 14th January and 13th May 2008 (Education and Skills Bill (Programme) and Education and Skills Bill (Programme) (No. 2)):
Consideration of Lords Amendments
1. Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption at this day’s sitting.
Subsequent stages
2. Any further Message from the Lords may be considered forthwith without any Question being put.
3. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement. —[Steve McCabe.]
Orders of the Day
Education and Skills Bill
4.39 pm
Mr. Deputy Speaker (Sir Michael Lord): I draw the House’s attention to the fact that privilege is involved in Lords amendments Nos. 1 to 23, 28, 32, 40, 81 and 151. If the House agrees to any of these Lords amendments, I shall ensure that the appropriate entry is made in the Journal.
The Minister for Schools and Learners (Jim Knight): I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker: With this it will be convenient to discuss Lords amendments Nos. 2 to 23, 33 to 39, 174 to 177 and 191.
Jim Knight: I would like to speak first to amendments Nos. 1 to 23, and 38. I welcome the careful scrutiny that the Select Committee on the Constitution gave to the Bill. I also welcome the Committee’s detailed and helpful comments on duties on employers, related sanctions and rights of objection and appeal. The enforcement powers that local authorities have in relation to employers will be used only as a last resort, and would always be preceded by informal engagement with the employer. We will also consult employer organisations to develop clear guidance for employers to ensure that they fully understand what is expected and do not risk facing enforcement action. However, should enforcement provisions need to be used, the Government agree it is important to be absolutely clear that employers have rights of objection and appeal. These amendments ensure that this is the case.
Amendments Nos. 174 and 176 give effect to one of the recommendations of the Delegated Powers and Regulatory Reform Committee. They ensure that any regulations setting the amount of the financial penalty that a local authority can impose on an employer who has failed to comply with their duties would be subject to the affirmative procedure, except where those regulations reduce the amount of the penalty. The Committee recommended that the affirmative procedure would be needed only for the first use of the regulation-making power, and for any subsequent regulations that raised the amount of the penalty by more than inflation. However, as it proved difficult to link the provisions to inflation in this way, we have gone beyond the Committee’s recommendation and proposed the affirmative procedure for every use of these regulations, except where they reduce the amount. I am grateful to the Committee for its careful scrutiny and constructive recommendations.
Amendments Nos. 33 and 34 clarify that the duties on employers in chapter 3 apply in relation to employment in this House and in the other place. It is right that that employment should count for the purposes of the duty
to participate, and that the duties to check that a young person is in education or training and release them to attend should apply, to ensure that young people can participate in the necessary learning. But, as is the custom, it would not be appropriate for local authorities to have powers of enforcement against this House or the other place, so the amendments clarify that the provisions in chapter 3 relating to enforcement do not apply. Amendment No. 35 is a consequence of the previous amendments, and the relevant definition is included in the new clause and can therefore be deleted from this one.
Amendments Nos. 36 and 37 are minor and technical amendments to aid interpretation of the Bill. Amendment No. 36 replaces the definition of a member of the House of Commons staff in the Bill with a reference to the existing definition in the Employment Rights Act 1996, and amendment No. 37 makes provision for who is to be treated as the employer in relation to House of Commons staff.
We discussed questions relating to Wales on Report in this House, and my hon. Friend the Member for Ogmore (Huw Irranca-Davies), the then Under-Secretary of State for Wales, committed that we would
“ensure that the Bill is drafted in such a way that it enables all aspects of the policy to be capable of application in Wales in future”.—[ Official Report, 13 May 2008; Vol. 475, c. 1287.]
My hon. Friend now occupies the office that I used to occupy in the Department for Environment, Food and Rural Affairs—and it a very comfortable one. I am pleased to see my hon. Friend the Member for Caerphilly (Mr. David), the new Under-Secretary of State for Wales, in his place. I take this opportunity to congratulate him.
Amendments Nos. 39, 175, 177, and 191 enable the duties on employers in chapter 3 of part 1 to be applied to Wales in future, should the Assembly Government, having studied the impact of the legislation in England, decide to acquire the legislative competence to raise the participation age in Wales and bring forward a measure to do so. We think it important that duties on employers on either side of the border should be the same if the participation age is the same, so that the system is easy to understand and potential burdens on employers are minimised. The amendments ensure that should the participation age be raised in Wales, and should the Secretary of State use his power to apply the provisions in chapter 3 to Wales, any order he made would be subject to the affirmative procedure, and that Welsh Ministers would need to be consulted first.
I hope that hon. Members will agree that this group of fairly technical amendments improves the Bill, and I commend the amendments to the House.
4.45 pm
Mr. Nick Gibb (Bognor Regis and Littlehampton) (Con): I am grateful to the Minister for that clear explanation of the group of Lords amendments. He cited the House of Lords Select Committee on the Constitution, but I do not believe that he mentioned the letter of 11 June from my noble Friend Lord Goodlad.
Given that Lord Goodlad was a former Chief Whip in this House, I was already convinced that everything he said in that letter was true. However, I was even more convinced once I had read it. Lord Goodlad makes the important point of principle that
“where the executive branch of government is given powers to impose penalties, minimum standards of administrative justice should be in place to safeguard people from wrongful impositions of demands for compliance or payment of financial penalties (whether because of a factual mistake or legal error on the part of the public authority). ”
He refers to the common law principle of audi alteram partem. As one of the last generation of state-educated pupils to learn Latin, I can tell the Minister that that means “Hear the other side.” It leads Lord Goodlad to ask why the Bill contains no express obligation to hear the employer’s side of events before a compliance or penalty notice is imposed. He goes on to ask, in English, why the Bill contains no express provision for reviewing enforcement and penalty notices.
The next matter of concern that my noble Friend raised relates to appeals. He said:
“In situations where an executive branch of government is empowered to impose sanctions, especially financial penalties, it is of great importance that accused persons have access to an independent court to question the legality of a penalty.”
Lord Adonis, in his response of 1 July, replied that, as the fine would be a civil penalty, recoverable through the county court, the employer would have the opportunity to put his case and effectively provide an appeal. However, Lord Goodlad said:
“We believe that as a matter of principle there ought to be express provision for an appeal to enable the person subject to a penalty to challenge the factual and legal basis on which the penalty has been imposed.”
He went on to cite the express appeals provision in clause 39 of the Pensions Bill, which creates a right of appeal to a tribunal.
“We did not think it desirable to provide for rights of appeal because this would mean establishing a new body to hear such appeals. Unlike the Pensions Bill where there is a natural body to hear appeals (the Pensions Regulator Tribunal) we would have to create a new independent body to hear such appeals which did not seem justified in the circumstances”.
It is therefore slightly odd that the amendments, especially amendment No. 4, create an appeal to the first-tier tribunal.
Conservative Members agree that, following the letter from the Select Committee, it is important to provide a right of appeal. However, it would be helpful if the Minister explained the discrepancy between the point in Lord Adonis’s letter that a new body would have to be established, and the amendment, which states that the appeal is to be made to first-tier tribunal. Which first-tier tribunal? Lady Morgan, the Minister in another place, provides no explanation. Perhaps the Minister could let us know during the debate.
I am baffled—as a result, I am sure, of my ignorance of the new arrangements for the tribunal service—about to which of the various chambers and tribunals an appeal could be made. Would it be to the social entitlement chamber, which covers the asylum support tribunal, the social security and child support appeals tribunal and the criminal injuries compensation appeals panel? Would it be to the war pensions and armed forces compensation chamber? The most likely candidate is the health, education and social care chamber.
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