Education and Skills Bill

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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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