Clause
42
Attendance
panel
Mr.
Nick Gibb (Bognor Regis and Littlehampton) (Con): I beg to
move amendment No. 85, in
clause 42, page 23, line 21, at
end add—
‘(5) This section
may not come into force before the Secretary of State has published a
report setting out his estimate of the total annual cost of the
establishment and operation of attendance
panels.’.
Welcome
back to our proceedings, Mr. Bercow. Clause 42 establishes
attendance panels in each local authority that will hear appeals by
young people who have been issued with attendance notices. It would be
helpful if the Minister could expand on his intention towards the
regulations in clause 42(3). In particular, subsection (3)(a) states
that the panel chairman must not be a member of the local authority,
which means, I assume, that he must not be a councillor for that
authority. Can he or she, however, be an employee of the
authority?
Jim
Knight:
To speed things up for the Committee, it is our
intention that they should not be a council employee, and we will
certainly clarify that point in regulation.
Mr.
Gibb:
That is extremely helpful. Will the Minister then
also set out who else can serve on the panel? Can councillors fill all
the positions on the panel, with the exception of the chair? Can
council employees serve on the panel, subject to the Minister’s
intention that they cannot chair it? If the answer is yes, how does
that make the panel independent? The clause does not refer to
attendance panels being independent, nor indeed do the famous
explanatory notes, so it would be helpful if he could clarify that
point.
The
Government’s White Paper—I presume it is a White
Paper—called, “Raising Expectations: from Policy to
Legislation”, says at paragraph 4.33:
“If the young person
wished to challenge the Attendance Notice it would be referred to an
independent adjudication panel, which the local authority will set
up”.
That
document therefore refers to an independent panel. Furthermore, in the
Minister’s letter to the hon. Member for Yeovil of 13 February,
which was copied to all Committee members, there is an explicit
reference in the third paragraph to an “independent attendance
panel”. Clearly, the Government have applied
“independent” to the panel in their policy, but it is not
clear from the clause that, other than the chair, the panel will be
independent of the local authority that first issued the notice.
Clarification from the Minister would therefore be helpful.
Amendment No. 85 relates to the
costs that will be incurred by the local authority in establishing and
running the attendance panels. It says that clause 42
“may not come into force before the
Secretary of State has published a report setting out his estimate of
the total annual cost of the establishment and operation of attendance
panels.”
I
presume that such an estimate has already been prepared by the
Government in introducing the Bill. The purpose of the amendment is
principally to enable the Minister to share that information with the
Committee.
Subsection (3)(b) gives the
Secretary of State the power to make regulations to enable local
authorities to pay allowances to members of an appeal panel. Could the
Minister spell out how much these allowances will be, the conditions of
payment, how many members each panel will have and the likely frequency
of their meetings? The Local Government Association is obviously
anxious about the provision and the possible result. It is only too
aware of countless new duties imposed on local government by central
Government without sufficient funding to match.
The LGA said in its briefing
that local authorities
“will want to be involved in the
drafting of regulations regarding the constitution of attendance panels
to ensure that they are not overly bureaucratic, burdensome or
costly.”
Will the Minister
therefore spell out his thinking on the regulations so that the
Committee can be reassured that attendance panels will not be overly
bureaucratic, burdensome or costly? An estimate of the likely annual
cost of operating these panels would also assist our
deliberations.
Mr.
Laws:
I shall be extremely brief. We support the
amendment, and we want to hear what the costs associated with the
provision are likely to be, how they will be met by local authorities
and whether there will be any additional funding relating to them. We
also hope that there will be a clear answer from the Minister to the
question implicit in the observation by the hon. Member for Bognor
Regis and Littlehampton that local authorities want to be involved in
the formulation of the regulations as to how the panels will operate
and how they will be set up to make sure that the costs are reduced and
that they are as effective as possible. I hope that the Minister can
tell us how they will be
involved.
Mr.
Heald:
Will the Minister make a few comments about the
implications for civil legal aid? Community legal centres provide
education law advice and are funded by the legal aid fund. In those
circumstances, it appears that there will be a need for more advice for
young people who attend panels. I should be grateful to know what
discussions the Minister has had with the Ministry of Justice and what
he estimates will be the costs to the legal aid
fund.
Jim
Knight:
The attendance panel is crucial to the
effectiveness and fairness of the enforcement system. It is in place to
ensure that attendance notices are issued fairly and that there has
been sufficient opportunity and support. They provide an additional
safeguard to ensure that no young person can enter the enforcement
system inappropriately. We will ensure that it is effective in its
purpose and that it is not too bureaucratic.
The hon. Member for Bognor Regis
and Littlehampton asked about the panel’s composition and
independence. We will want to consult fully about how it should be
composed and how it should work, but I can set some of those things out
in principle. Part of the consultation will undoubtedly involve the LGA
and other local government interests to ensure that they have a proper
opportunity to express their opinion. I remind the hon. Gentleman that
we have committed to funding any costs to local government of carrying
out that function in full.
As for
composition, we envisage that the local authority will establish a pool
of potential panel members by advertising. Panel members will receive
fairly brief training on, for example, understanding the law and
regulations in education and support systems, and on the expectations
of them when they interact with young people who come before the panel.
Those are examples—it is not an exhaustive list of the things in
which they might be trained. Some people in the pool will be designated
as chairs, and they will receive additional training. The pool will
include some people with a background and expertise in education or the
support professions—such people would have experience of the
education system and would understand it, just as schools admissions
appeal panels include at least one person who has experience in
education and an acquaintance with educational conditions in the area
or who is the parent of a registered pupil.
That is the
requirement for the composition of admissions appeal panels, and we are
seeking to replicate it. Indeed, much of the Government’s
thinking on how the panels will be composed and resourced is informed
by how school admissions appeal panels work. The panel will normally
consist of three people: the independent chair, at least one person
with an education or support background, and one other person. We will
consult on whether there should be provision for larger panels in more
complex cases. Clearly, some importance will be placed on ensuring that
there is sufficient diversity among panel members, and that they
reflect the area in which the authority is based.
There should
be restrictions on who can become a panel member to enforce
impartiality and independence—an issue about which the hon.
Member for Bognor Regis and Littlehampton was concerned. We will
clarify by regulation the fact that someone who is employed by the
local authority or the educational institution in question should not
serve on the panel. The same applies to any person about whom there are
reasonable doubts as to their impartiality in relation to an authority
or a school. Obviously, panellists would need to satisfy the training
requirements, and they should not be involved in the decision that is
being appealed.
In the
end, costs will be determined by the consultation, which we have not
yet carried out, and after we decide how the panel will be configured.
To help the Committee, the Department has made a rough estimate of
about £1.5 million, based on the costs of schools admissions
appeal panels. We have not made that explicit in the impact assessment,
but it has been included in the general costings. As I said, we have
already committed both to funding additional burdens on local
authorities and to consult fully with the LGA. We will certainly
consult and take careful account of the likely costs of establishing
the panels and their functions. We will make our cost assessment for
local authorities, and we are committed to funding the measure. I hope
that I have successfully answered the questions that were asked in the
debate.
Jim
Knight:
I have not successfully done so, because I have
not responded to the interesting question on legal aid asked by the
hon. Member for North-East Hertfordshire.
As I said, the panel should be
informal—we will not expect legal representation in the panels.
If the hon. Gentleman were to look at page 23 of the impact assessment,
he would see some figures on the costs of prosecution. We do not think
that the process will result in any more young people being entitled to
legal aid than now.
Mr.
Heald:
A certain number of parents and students go to a
law centre to obtain legal advice, funded by the civil legal aid fund,
on panels, exclusions and such things. The measure will create a larger
cohort of such people. We are talking about panels for 16 to
18-year-olds who are do not comply with the measure, so there are bound
to be more people who want educational advice from law centres. If only
one case went to the panel, that would create one more such person. In
those circumstances, I suggest that the Minister talk to the Ministry
of Justice, because the civil legal aid fund is very
pressed.
Jim
Knight:
We have had discussions with the Ministry
of Justice about this and other clauses. I will think about whether I
need to have a specific conversation with it about the point that the
hon. Gentleman has made. As far as I am aware, that is not something
that the Ministry of Justice has raised with us and therefore it is not
of great concern. I accept the generosity with which he is advising me,
and I accept his point in that
spirit.
1.45
pm
Mr.
Laws:
I am grateful to the Minister for giving way with
such good grace. I am sorry if I have missed this point by not
listening attentively enough, but of the Government’s estimates
of the cost of the Bill, what is the cost for independent advocacy
advice that might be necessary under the clause? What assumptions have
the Government made about the cost to local authorities of giving
access to independent
advocacy?
Jim
Knight:
The assumptions about cost that I set out when I
gave a figure of £1.5 million were based on the schools
admissions appeal panel. We will go on to debate an amendment about
independent advocacy, and I will happily expand further on this issue
at that
point.
Mr.
Laws:
I think that the Minister will confirm that under
clause 42(1), the regulations that will be issued will provide for
independent advocacy for young people. Therefore, the cost of that will
be covered in his
estimates.
Jim
Knight:
As I said, we will come on to this issue. We are
not saying that an authority must provide independent advocacy, but in
guidance we will say that if someone has difficulty representing
themselves it would be good practice for the authority to offer that
facility to the young person. The atmosphere of the panels should be
friendly and informal so as to engage young people. The more we end up
using advocates, the greater the danger that the process will be
formalised in such a way that young people will become disengaged from
it.
Mr.
Laws:
May I confirm that the Minister is saying that in
the regulations that are at issue under clause 42(1), there will be no
duty on local authorities to guarantee that independent advocacy will
be available, even when young people need it for their interests to be
represented to the panels? If that is the case, I am
disappointed.
Jim
Knight:
I am trying to find the amendment under which we
will discuss independent advocacy in the panels. I am in your hands,
Mr. Bercow, but I want to encourage the hon. Member for
Bognor Regis and Littlehampton to withdraw the amendment and discuss
the issue of independent advocacy when we reach the relevant
amendment.
Mr.
Gibb:
I listened carefully to the Minister’s
response to the amendment and to the exchange between him and the hon.
Member for Yeovil. The point that he was trying to extract from the
Minister is whether, within the £1.5 million, there is a cost
for advocacy. Regardless of whether he wishes to encourage it, which he
does not seem to, or whether local authorities will provide it in any
case because they believe in helping social justice, advocacy is
inevitable.
Jim
Knight:
I did not say that I do not want to encourage
advocacy, but that if the need is there for the young person, the local
authority should be encouraged, in guidance, to provide
it.
Mr.
Gibb:
That is a helpful revision to the impression that
the Minister gave during the exchanges, but it will inevitably involve
a cost. He was not able to respond adequately to the intervention of
the hon. Member for Yeovil, so I suspect that the £1.5 million
does not include the cost of such advocacy.
Mr.
Heald:
There are two possible elements of cost: one is
that a legal centre could give advice to the individual and help them
to prepare a statement to the panel; and the other is a case where an
advocate needed to attend. In both cases, however, the legal aid fund
would pay, unless the Department for Education and Skills is now
thinking of funding it.
Mr.
Gibb:
This legislation will therefore add yet another
burden and drain on the fund, so my hon. Friend makes a good point. I
listened carefully to the Minister, who made some good points about
wanting to consult fully, which is welcome. He also said that the Local
Government Association, which will have to implement that through its
membership, will also be consulted on the regulations, and that the
costs will be refunded to the local authorities, which will please
local authorities and council tax payers. Of course, the costs always
fall somewhere on the general public, so the taxpayer will be picking
up the bill, and we want to ensure that we can be assured that the
costs that the Minister has just divulged to the Committee will be
accurate.
The Minister
also gave some welcome indications about the membership of the panel,
and it is pleasing that he has explicitly ruled out any employee of the
local authority that issued the attendance notice being
on the panel, either as chairman or as an ordinary member. It is also
welcome that the panel appears to be confined to three people, which
will prevent it from becoming too expensive. However, I am not yet
convinced that we have bottomed out the costs, and I suspect that the
£1.5 million to which he has referred is solely the allowances
of the panel’s attendees. Of course, there are other costs
associated with operating such an attendance panel, such as secretarial
support and office accommodation within the local authority. If I have
done my maths correctly on the basis of the quantum assessment that the
Minister uses, £1.5 million amongst 150 local authorities is
only £10,000 per local authority, so I suspect that he has
underestimated the cost of operating attendance panels. For that
reason, I think that the Bill should contain a statement that requires
the Secretary of State to publish a report setting out the estimate of
the total annual cost for the establishment and operation of attendance
panels before the section comes into play. Given that we have until
2013 to do that, I do not think that it is an unreasonable burden for
the report to be published so that it can be scrutinised by hon.
Members. One of the key reasons why we have any power at all in the
House is to assess spending, costs and tax-raising
measures.
Jim
Knight:
As a last-gasp attempt to get the hon.
Gentleman’s agreement, we are saying that we will have a
consultation and that then there will then be regulation, which can, of
course, be debated by the House. The report that he proposes in the
amendment would be only a report. Indeed, we would want there to be a
report to inform any debate that there might be in the House about any
regulation, so that will effectively happen, whether or not the
amendment is made.
Mr.
Heald:
Will the hon. Gentleman give
way?
The
Chairman:
Order. We cannot have an intervention on an
intervention. I remind the Minister that he is only
intervening.
Jim
Knight:
I am grateful for that, Mr. Bercow.
Given that the hon. Member for Bognor Regis and Littlehampton will
effectively get costings in the fullness of time, I am pleading that it
is not necessary for him to press the
amendment.
Mr.
Gibb:
It probably is
necessary.
Mr.
Heald:
It is true that there are regulations under clause
42(1), but they are under the negative procedure, so there is no
guarantee that there would be a debate on them. I do not know whether
my hon. Friend the Member for Bognor Regis and Littlehampton feels that
the Minister might look at the concession of making that part of the
affirmative
procedure.
Mr.
Gibb:
My hon. Friend makes a valuable intervention. If the
Minister were to promise to change that particular regulation and make
the power into an affirmative resolution power, I would seek leave to
withdraw the amendment. About 2,000 or 3,000 negative resolution
statutory instruments go through the House every year and I suspect
that few of those have a fully costed
report attached to them. Given that it is not mutually exclusive to have
a regulation and a report setting out the Secretary of State’s
estimate of the costs of those regulations, I see no reason on the
basis of that intervention or the general debate we have had not to
press the amendment to a Division at the appropriate
time.
Mr.
Laws:
The amendment deals with cost issues, but we are
entitled to ask what is included in the cost estimate. As a consequence
of probing that issue, rather disappointingly, we have found that
advocacy services will not be a requirement for local authorities. I
appreciate that the Minister’s natural instinct was to discuss
advocacy under clause 43, when we will deal with other advocacy issues,
but it is under clause 42(1) that the Government will provide guidance
to local authorities in relation to duties under the
provision.
I have had
a representation from Barnado’s that covers not only some of the
later clauses, but clause 42(1) and therefore the costing of it. In the
context of a group that supports the Bill as a whole, Barnado’s
makes it clear that it would like Ministers to provide clear assurances
that statutory guidelines under clause 42(1) will require local
authorities to make available independent advocacy services. When the
Minister was challenged on that, he said that he would encourage local
authorities to provide those services. Therefore, presumably his cost
estimates are based on the assumption that only a proportion of local
authorities will do so. If he is assuming that they will all do so, one
wonders why the necessary provision cannot be put into regulations or
the Bill.
Barnado’s
makes the point powerfully that it wants to ensure that independent
advocacy services are available, particularly for young people who have
learning, communication or sensory difficulties and in other specific
circumstances. We can all imagine that young people who appear before
such a panel under the circumstances that are envisaged would find the
situation incredibly difficult, may have serious communication
difficulties and may find it intimidating. Is it good enough to
encourage local authorities to provide advocacy services in those
circumstances? Given the Minister’s generosity in relation to
the previous clause, when he said that he would reflect on some of the
issues, will he reflect on the possibility of obliging local
authorities to provide advocacy services for a prescribed number of
conditions? If local authorities have financial constraints, it will
not be good enough if, on the grounds of cost, some local authorities
chose not to make advocacy services available to young people with the
learning and communication difficulties to which Barnado’s
refers. That seems to be a powerful point to which the Minister could
usefully respond or on which he could
reflect.
Jim
Knight:
I will say two final things. We continue work on
the estimates of the cost of attendance panels and at this stage we
intend to have those ready in order to include more detailed estimates
in the revised version of the impact assessment that will be published
when the Bill is introduced in the other place.
Regulations will not provide for
an entitlement to independent advocacy, but they will state that the
young person should be invited and allowed to bring someone with them
to assist with the process. However, as I have said, it is not a formal
court hearing. I have
also said that guidance would indicate that it is good practice where
there are specific needs. I shall consider whether in that guidance we
should define things carefully, leaving some flexibility for the
authorities, along the lines described by the hon. Member for
Yeovil.
Mr.
Laws:
I welcome that response and make a brief
intervention in order to reinforce the concession that we might get
from the Minister on the matter. I am grateful to him for saying that
he will at least consider placing a duty on local authorities relating
to young people with particular learning and communication needs. That
would satisfy some of my concerns about the
clause.
2
pm
Mr.
Gibb:
Notwithstanding the concession on advocacy that we
will come to in the following two clauses, I remain highly concerned
about the panel’s cost implications. Given that the Minister has
indicated that the estimates are still being worked up, I believe that
we should see them before the legislation comes in to force. Therefore,
I press the amendment to a
Division.
Question
put, That the amendment be made:—
The
Committee divided: Ayes 6, Noes
9.
Division
No.
21
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly negatived.
Clause 42 ordered to stand
part of the
Bill.
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