Clause
43
Appeal
arrangements
Mr.
Gibb:
I beg to move amendment No. 152, in
clause 43, page 23, line 28, after
‘notice’, insert
‘on the grounds of its suitability
or for any other
reason’.
The
clause sets out the right to appeal against an attendance notice. The
hon. Member for Yeovil has raised the matter of advocacy, which we will
come on to debate later. The concession that the Minister expressed
during the last debate was very welcome. Barnardo’s has
expressed strong views on the matter to the Committee, stating in its
briefing that further safeguards should be in place in the Bill to
ensure that
“advocacy is
available, where needed, to enable a young person's voice to be heard
at an Attendance Panel at every
stage”—
The
Chairman:
Order. Before the hon. Gentleman continues, I
counsel him against dilating on matters with which we have already
dealt. It is important that we do not stray back to a debate that we
have just had, and that he focuses his remarks on amendment
No.
152.
Mr.
Gibb:
I am grateful for that guidance, Mr.
Bercow. I will move swiftly on to focus on the amendment. The right of
appeal in the clause is against the issuing of the notice, or against
the education or training provisions set out in the attendance notice,
or against a variation in a notice.
This is a
probing amendment, designed to emphasise the fact that the grounds for
appeal can include the suitability of the education or training
provision. It was suggested by the NUT, which is more influential by
virtue of the fact that it is outside the social partnership with the
Government than it would be within it, given the concessions have been
made in Committee following its representations. The NUT is seriously
concerned about the extent of the grounds for appeal. It says in its
briefing:
“It is
hoped that the provision for young people to appeal against an
attendance notice on wider grounds will help encourage local
authorities to identify individual
needs.”
It goes on to cite
the National Children’s Bureau, which says
that
“young people subject
to this legal
requirement”—
to
participate in education and
training—
“and its
associated enforcement measures should have a right of
redress”.
The NUT
says:
“One way
of doing this would be to give them access to a complaints system that
is open to young people; has clear, published criteria for the issues
that it is able to address; is easy to access; has a transparent
decision-making process, and; has real
authority.”
It would be
helpful if the Minister set out the grounds for appeal and whether
those include the availability of suitable training provision in the
area.
Mr.
Laws:
I feel obliged to speak briefly on the amendment,
having raised the issue of suitability earlier and having managed to
associate myself with two NUT-inspired amendments, which are the only
things that the Minister has conceded so far. In anticipation of his
being particularly friendly towards the NUT at the moment, I will
associate myself with the amendment before he adopts it in the Bill. It
addresses very directly the issues of suitability that we raised, as
well as our concerns about the lack of clarity as to how that will be
assessed. How suitability is defined will provide the basis for
challenges that are made on the issue. This is another superb amendment
from the NUT and I look forward to the Minister conceding
again.
Jim
Knight:
Committee members are trying to encourage me to
disagree with the National Union of Teachers. However, the clause
requires that local authorities make arrangements for young people to
appeal to the attendance panel against the giving of the attendance
notice, the description of education or training that they must attend,
and any variation to the notice. No grounds are
specified so, as drafted, the provision allows the young person to
appeal against the description on the grounds of its suitability or for
any other reason. There is no need to specify grounds, and there is a
possibility that doing so would risk suggesting a restriction on the
possible grounds for
appeal.
In addition, I
remind the Committee that the description of education or training in
the attendance notice must be suitable, as we have discussed. The
provider must have been consulted. We are anticipate the thoughts of
the NUT, as expressed by their comrade, the hon. Member for Bognor
Regis and Littlehampton, but I hope that he will withdraw the
amendment.
Mr.
Gibb:
I am grateful for that explanation of the clause.
The Minister’s words, which will now form part of the law, will
be very helpful to practitioners outside the House and, in particular,
to the National Union of Teachers. On the basis of his words, I beg to
ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Gibb:
I beg to move amendment No. 86, in
clause 43, page 23, line 37, at
end add—
‘(4) Regulations
made under subsection (3) shall include a requirement that any appeal
made under this section shall be heard by the attendance panel within
one month of the appeal being
made.’.
The
amendment was tabled to ensure that there is no undue delay in the
young person being able to make their case to the attendance panel.
There is always a tendency in bureaucracies for a lack of urgency to
creep in, but it is important for the young person who is subject to
the pressure of a written notice from a local authority and then an
attendance notice that the issue is resolved swiftly. If the
enforcement procedures are to be real from the point of view of the
Government and of those in favour of compulsion, the appeals process
must not become bound up in delay and obfuscation. The amendment
therefore seeks to ensure that appeals are heard within one month of
being made. Swift action on all the measures in the Bill is important
for its efficacy, given the short period during which the duty to
participate will apply. It would also be helpful if the Minister said
something about the procedures of the attendance panel and whether the
rules of natural justice and those that apply to tribunals will also
apply to the hearing of appeals on
attendance.
The
Minister expressed the view that arrangements for those appeals should
be informal so that the young person can engage with them. However,
tribunal and court rules, which have evolved over the centuries, did so
for a purpose, the principal one being to protect the interests of the
person appearing before them. Informality is all very well, but rules
are required so that the young people are protected and have the
benefit of advocacy, and so that we can ensure that the principles of
natural justice still apply, notwithstanding the formality of the
occasion.
Jim
Knight:
The attendance panel is crucial to the
effectiveness and fairness of the enforcement system, and it needs to
operate with as little bureaucracy as possible, so that it can be fully
effective. Of course, we
want appeals to be heard quickly, but it is not appropriate to specify
in primary legislation how quickly. It is usual to deal in secondary
legislation with operational details such as the code of practice for
school admissions appeals, which specifies time limits for hearing such
appeals.
What is more,
it would not be right to determine those details without thorough
consultation, given that the legislation will not come into force for
another five years. It is more appropriate to deal with this matter in
detailed guidance, which we will provide to panels to assist them in
carrying out their functions, such as those provided for in clause
43(3). That guidance will be developed by my Department in full
consultation with local authorities, children’s charities and
young people themselves.
May I remind the hon. Member for
Bognor Regis and Littlehampton that article 6 of the European
convention on human rights ensures that all appeals are heard within a
reasonable time? Naturally that will apply to the provisions in the
Bill, and it implies that the associated principle of natural justice
will have some application as well. On that basis, I urge him to
withdraw his amendment.
Mr.
Gibb:
That was a disappointing reply. Essentially, the
Minister said, “We have not really thought about it. It will be
provided for in detailed guidance, on which we will consult, and human
rights legislation will always apply”. That is not good enough.
I shall not press my amendment to a Division, as it purpose was to
probe the Minister and to raise the matter in Committee. However, his
response reveals a lack of preparation on the Bill’s enforcement
procedures, which is disappointing for the Committee, given the
paramount importance of the attendance notice and the panel. However,
the point has been made, and on that basis I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Laws:
I beg to move amendment No. 167, in
clause 43, page 23, line 37, at
end add—
‘(4) In considering
an appeal the attendance panel must invite the young person who is
appealing against the attendance notice, or the young person’s
nominated representative, to make representations to
it.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 168, in clause 48, page 26, line 30, at end
add—
‘(4) In considering an
appeal the attendance panel must invite the young person who is
appealing against the penalty notice, or the young person’s
nominated representative, to make representations to
it.’.
Mr.
Laws:
The amendments are important, and I thank
Barnado’s, both for inspiring them and for its excellent
briefing note, of which other Committee members have had sight. I must
confess that when I first read the Bill I did not pick up the point
made by Barnardo’s that the rights of appeal and the rights of
advocacy are rather different at the three stages of the process set
out in chapter 5 of the Bill.
2.15
pm
At present, the
attendance panel can consider the young person’s case at three
points in time. First, it can do so on appeal against the attendance
notice, as set out in clause 43. Secondly, it can do so on appeal
against the penalty notice, as set out in clause 48, to which amendment
No. 168 applies. Thirdly, it can decide whether the local authority can
commence proceedings against the young person for failure to comply
with an attendance notice, as set out in clause 46.
Barnardo’s has pointed
out that only at the third stage of that process is the young person
given the right to attend the attendance panel to put their case. That
is covered under clause 46(6). There is no equivalent requirement set
out in the Bill at either of the earlier appeal stages, and so the
amendments would address that anomaly. Barnardo’s supports the
approach in the Bill as a
whole:
“Barnardo’s
believe that a young person should be entitled to nominate a
representative to make representations on their behalf. This could be,
for example, a parent friend or key worker; or in some circumstances an
independent trained
advocate.”
There
are two aspects to this double set of amendments. First, the power to
appeal and to be present for that appeal should be available at all
three stages, and not simply in one of them. Secondly, the rights of
the young person to advocacy should be strengthened. We touched on that
issue in when we debated clause 42, because Barnardo’s has
rightly pointed out that under clause 42(1), regulations will be issued
to make clear what rights young people to advocacy and other matters.
Barnardo’s rationale relates not only to the rights and freedoms
of young people as set down in article 12 of the United Nations
convention on the rights of the child, but to some of the rights of
young people as set down in the Government’s own Human Rights
Act 1998 and the Children Acts of 1989 and
2004.
Barnardo’s
goes on to point out that there is another powerful reason to include
rights of presence in the appeal process. Not only are communication
rights set down in law and in the UN convention, but young people may
be more likely to co-operate with the whole process if they feel part
of it and believe they have a chance to express their concerns. They
may learn to respect other people’s rights and to take on a
sense of social responsibility. They may understand more clearly what
the local authority and the Government are seeking to do in pursuing
this process, which may otherwise seem draconian and threatening. They
may gain some confidence in dealing with other people in the settings
in which they are placed, as they have to appeal against the
panel’s decisions, and they will develop other interpersonal and
practical skills.
There
is a good case for making sure that young people are involved at every
stage, as that could be helpful in ensuring that they take a more
constructive view of the process than would be the case if they were
involved only at later stages. I should like to return to the issue of
advocacy. It would be highly beneficial to young people and the
Government if the Minister considered stronger advocacy powers in the
Bill, as set out in the two amendments, which would not only allow
young people to determine that someone else should represent them at
the panels but would make
sure that a duty is placed on local authorities to provide independent
advocacy access when the young person is unable to represent their own
needs and requirements confidently or might not be able to call on
another person, such as a parent, relative or friend, to do so
effectively. Some of the young people we are discussing fall into that
category. I understand
the Government’s lack of enthusiasm for opening the door to an
enormous process of expensive semi-legal appeals, but young people with
particular problems would form a much smaller group and thus the costs
would be much smaller. The Minister has said that he is willing to
reflect on that particular issue. That is helpful, but I hope that he
will show flexibility and allow the voice of young people to be heard
at the other stages in the appeal process.
Mr.
Gibb:
We support amendments Nos. 167 and 168, which were
tabled by the hon. Member for Yeovil. The absence of guidance on the
procedural rules of the attendance panel is an issue that I have
already raised. That is a worry, so it is right to put such matters
into primary legislation to ensure that the panel acts in accordance
with the principles of natural
justice.
As the hon.
Gentleman said, under clause 46(6), a young person against whom
proceedings are taken for failing to comply with an attendance notice
must be invited to make representations to the attendance panel before
proceedings begin. Why does the same right not apply when a young
person appeals against the issuance of an attendance notice? Giving a
young person the right to attend to give evidence at their own appeal
is the right thing to do. We do not want the panels to become like the
primary care trust appeal panels to which members of the public can
appeal if they are refused funding for a particular treatment. The
panels hear a raft of cases all on one day; they do not hear from the
patients themselves. They read through the notes and reach a verdict.
Decisions often take less than 15 minutes, but they can be a matter of
life and death to some people. It is therefore important that the
appeals panel can at least hear from the young person before it
confirms the issuance of an attendance
notice.
Jim
Knight:
When the attendance panel is considering whether
it is appropriate for a local authority to begin proceedings against a
young person, clause 46 states that it is required to invite the young
person to make representations to the panel. In that case, the
consequences in respect of a panel’s decisions about the failure
to comply with a fixed penalty notice are serious for the young person,
which is why we have set it out in primary
legislation.
The
amendment would introduce a similar requirement when the panel is
considering either an appeal against an attendance notice or an appeal
against a penalty notice. It would entitle the young people to attend
the hearing considering their appeal or to nominate a representative to
attend in their place. I very much agree that the young people should
be allowed to attend the appeal hearing and to bring someone with them
if they want to, and I will ensure that that is covered in the
regulations governing the panel’s operations. I have considered
whether such provisions should be made under primary legislation as the
consequence of the third item in Barnardo’s list to which the
hon. Member
for Yeovil referred. I hope that the Committee will accept my
reassurances that it is sufficient to act under secondary legislation
in respect of the first two items, but the consequences of the third
item are markedly different and much more serious, which is why we must
have the justification under primary
legislation The panel
will invite people who understand the young person’s
circumstances to make representations. They could include, for example,
the Connexions personal adviser, the youth worker, a teacher or a
tutor, depending on individual circumstances. Those representations and
the young person’s explanation will be important in helping the
panel understand the individual circumstances of the case. It is
difficult to envisage a circumstance where the panel could meet and do
its job as set out in the legislation without hearing from the young
person about the steps that have been taken to help, support and
re-engage them, and decide whether everything possible has been done to
help them.
It is
appropriate to put the detail of the panel’s operations in
regulations, and to take time to consult on that. The regulations will
be laid before the House. As for independent advocacy, we discussed
that at some length in relation to the previous clause. I have very
little to add except to clarify that I do not intend to make it a duty
on local authorities. However, I will look sympathetically at what we
can set out in guidance regarding the promotion of advocacy for young
people who would otherwise struggle fully to represent themselves.
Given that assurance, I hope that the hon. Member for Yeovil is fully
reassured and will withdraw his
amendment.
Mr.
Laws:
I am grateful to the Minister. It has been a long
afternoon, but I thought that he was slightly more enthusiastic earlier
about reflecting on the advocacy issue and whether local authorities
should have a duty to a particular category of high-needs youngsters.
He appears to be rowing back, having cleared the relevant clause. I
will look at his words more closely later, or we may seek to return to
the issue at a later stage in our proceedings.
On the bigger issue that the
amendments raise, I am reassured by the Minister’s
comments—on a scale of 10, he scores eight. He said that he will
allow the regulations to take into account the proposal in the
amendments that the young person be invited along to all stages of
appeal, including those set out in clauses 43 and 48, as well
as clause 46. I think he was also saying, as is implicit in the
amendments, that a young person’s nominated representative could
also go in place of the young
person.
Mr.
Gibb:
I am baffled as to why that provision should be made
in secondary, rather than primary, legislation. I do not buy the
argument that proceedings under clause 46 are more serious. The only
argument for using secondary legislation is that it changes frequently
or is of less importance generally. Attending an appeal is in the same
category in either case, and if provision is made for attendance in
clause 46, it should be in primary legislation in other instances,
given that the Minister wants to make it a
requirement.
Mr.
Laws:
I was about to come on to my two reservations, but
the hon. Gentleman quite rightly got there before I had a chance. In
the Minister’s response, there were three warning notes that
made me a little edgy. First, he did not say, “These amendments
are so fantastic that they will be enshrined in the Bill in your name
and in Barnardo’s name for the rest of time.” We know
that Ministers do not like to do that very often with Opposition
amendments.
More
seriously, the Minister began by talking about “allowing”
young people to attend, which is not quite the same as
“inviting”. Later, he used the word
“invite”. As the hon. Member for Bognor Regis and
Littlehampton indicated, the Minister also drew attention to clause 46
as “markedly more serious” than the other two clauses and
the appeals against the attendance and penalty notices. That rather
hinted at some uncertainty in his mind as to whether it would be
sensible to provide those rights of attendance and make sure that
someone was invited.
I
would much rather see amendments made to the Bill. I am inclined to
press my amendments to a Division, but I do not want to do so
unnecessarily. Will the Minister reassure me, notwithstanding the not
very strong argument for leaving the measure out of the Bill, of two
things? First, can he assure be there will be an invitation to attend
under clauses 43 and 48? There must be no doubt—the Government
must not change their mind later—that they are committed to an
invitation under those clauses. Secondly—and I am extending my
comments to allow the Minister to reflect on the issue in
detail—will he reassure me that there will not only be an
invitation and an undertaking, but that the invitation will extend to
the young person’s nominated
representative?
2.30
pm
Jim
Knight:
I am very happy to clarify the fact that in the
informal and friendly atmosphere of the panel, it will be appropriate
for the young person not only to be allowed but invited to bring
someone with them, and indeed, to attend
themselves.
Mr.
Laws:
I think that that is good enough for me. I regret
that the measure will not be in the Bill, but again, I would appear
churlish if I failed to accept the Minister’s reassurance, so I
beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 43 ordered to stand
part of the Bill.
Clause 44 ordered to stand
part of the
Bill.
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