Education and Skills Bill

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Clause 46

Restrictions on proceedings for offences under section 45
Mr. Gibb: I beg to move amendment No. 38, in clause 46, page 25, line 13, after ‘45’, insert ‘or an advocate of that person’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 83, in clause 46, page 25, line 13, at end insert—
‘(6A) In making representations to the attendance panel the person alleged to have committed the offence shall be entitled to advocacy.’.
No. 87, in clause 46, page 25, line 17, at end add—
‘(9) The Secretary of State must by regulations make provision setting out the rules of the proceedings of the attendance panel in relation to its functions in subsection (6).’.
Mr. Gibb: Before proceedings can be instituted against a young person for failing to comply with an attendance notice, the local authority must consult an attendance panel. The panel has to recommend to the local authority that proceedings be instituted. However, as we have discussed, subsection (6) requires the attendance panel first to invite the young person to make representations to it. The process contains a significant number of safeguards before criminal proceedings are started, but for some young people, even those safeguards might not be enough to avoid an injustice.
We have already debated the evidence of Barnardo’s about further safeguards such as that advocacy should be available where it is needed to enable a young person’s voice to be heard at the attendance panel at every stage of the process, especially for those with learning or communication difficulties. I will not repeat those arguments, except to say that even young people without special needs are inexperienced in putting their own case and may be intimidated by proceedings, regardless of how informally they are conducted.
Amendment No. 38 would put into subsection (6) a requirement that the attendance panel invite the young person or an advocate to make representations to it. That is all that I will say about that amendment. Amendment No. 83, tabled by the hon. Member for Yeovil, makes a similar point.
Amendment No. 87 would require that the Secretary of State set out the rules of the proceedings of the attendance panel in regulations. In particular, it refers to the hearing of representations from the young person against whom it is considering instituting criminal proceedings. As the panel will have a quasi-judicial, or even judicial, function along the lines of a grand jury in the United States, it is important that the proceedings follow the rules that apply to tribunals and courts. It should not necessarily follow the rules of formality, but it should certainly follow the rules of evidence. It should be made clear, for instance, whether the young person will be able to question the panel or the local authority that is instituting the proceedings. Clarification from the Minister on how the panels will operate would be very helpful.
Mr. Laws: I shall say no more other than that amendment No. 83 was tabled by the Liberal Democrats and that we want the Government to put a commitment in the Bill that gives the person an entitlement to advocacy for the reasons that we discussed earlier. It will be interesting to hear the Minister’s response to that proposal. Given that he considered for a while the possibility of granting advocacy for a particularly vulnerable group of young people, we are interested to hear his views about the wider cohort.
Jim Knight: When the attendance panel is considering whether a local authority should be able to begin proceedings against a young person, it is required to invite the young person to make representations to the panel. Under amendment No. 38, when considering that, the attendance panel would have to invite either the young person or an advocate for the young person to make representations to it. Amendment No. 83 would entitle the young person to advocacy in making those representations.
We are placing the duty to participate on the young people, so it is right that they should always be invited to make representations. I do not believe that, in reality, anyone would disagree with that. I very much agree that the young person should be able to bring someone with them to the panel if they want to, and we shall allow for that in regulations. The panel will also invite other people who understand the young person’s circumstances to make representations. Both those and the young person’s own explanation will be important in helping the panel to understand the individual circumstances of the case and the steps that have been taken to help, support and re-engage the young person, and so decide whether everything possible has been done.
How the panel invites representations to be made to it will be set out in regulations, as amendment No. 87 proposes. Clause 43(3) makes provision for that. It is appropriate to put the detail of the operation of the panel in regulations and to take time to consult on that. With those assurances, I hope that the hon. Member for Bognor Regis and Littlehampton will withdraw the amendment.
Mr. Gibb: I take the Minister’s point about the wording of amendment No. 38 and the use of “or”, so I shall not press that amendment to a Division. I am also reassured by the hon. Gentleman’s firm statement that he will include in the regulations a requirement that advocates will be permitted to accompany a young person appearing before an attendance panel. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Laws: I beg to move amendment No. 183, in clause 46, page 25, line 17, at end add—
‘(9) The proceedings may not be instituted unless the local education authority is of the opinion on reasonable grounds that they have exhausted all other options for encouraging the young person to comply with their attendance notice.
(10) The Secretary of State shall make regulations providing a definition of “all other options” under subsection (9), setting out the circumstances at which this stage may reasonably be considered to have been reached.
(11) In determining whether all other options have been exhausted with an individual young person the local education authority must have regard to the statutory definition provided by the Secretary of State under subsection (10).’.
It is clear what the amendment would achieve. Proposed new subsection (9) is clearly an attempt to ensure that, given the seriousness of the measures that we are considering, every possible attempt has been made to engage with the young person and to allow them to comply. Proposed new subsection (10) would require the Secretary of State to make regulations that provide a definition of “all other options” to ensure that it is clear to local authorities what obligations they must pursue before deciding that a person is not compliant. I should be grateful for the Minister’s view on the amendment.
Jim Knight: I put it to the Committee that the amendment is unnecessary because the attendance panel is the safeguard that ensures that the local authority has exhausted all other options for encouraging the young people to comply with their attendance notice. It does that by intervening at two critical stages in the process. It has the power to dismiss or confirm the attendance notice on appeal, and it must consider the young person’s case again if a local authority wishes to begin proceedings in the youth court. In both instances, the panel is the mechanism that would ensure that the young person’s case does not progress to the next stage of the enforcement process, unless it considers that all other options for encouraging the young person to comply with the requirement to participate have been exhausted. On that basis, I hope that the hon. Gentleman does not press the amendment to a Division.
Mr. Laws: Given that the Minister has said that he is more or less happy with everything in the amendment, we would have preferred that he had accepted it. However, given his assurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 ordered to stand part of the Bill.

Clause 47

Failure to comply with attendance notice: penalty notice
4 pm
Mr. Gibb: I beg to move amendment No. 40, in clause 47, page 25, line 38, at end insert
‘provided that such penalty does not exceed £200,’.
The Chairman: With this it will be convenient to discuss amendment No. 175, in clause 47, page 26, line 20, at end add—
‘(6) Penalties issued in accordance with the provisions of this section shall not exceed £50.’.
Mr. Gibb: The interaction between clauses 45, 46 and 47 seems to be rather complicated. I may well not have understood it properly, in which case I hope that the Committee will forgive me. My understanding is that clause 45 states that a person who fails to comply with an attendance notice is guilty of an offence and is liable to a fine not exceeding level 1 on the standard scale, which is £200. Clause 46 prevents a local authority from taking action under clause 45 until a penalty notice under clause 47 has been issued and not paid. It states that the amount that can be imposed by a penalty notice is to be determined by regulation. Clause 47(4)(b) states that regulations may make
“provision as to the amount of any penalty and the time by which it is to be paid”.
Therefore, the restriction of the fine to £200—level 1 on the standard scale—that applies to clause 45 appears not to apply to clause 47. It would therefore be helpful if the Minister could set out his intentions for the amount and the time allowed to make the payment that will be put in the regulations made under clause 47(4)(b).
Barnardo’s has raised its concern about the amount of any penalty under clause 47 and wants there to be safeguards. In its briefing to the Committee, it stated that it wanted safeguards that the
“level of the penalty set at an amount that reflects the level of financial support available to the poorest young people...and that the fine will not increase if not paid within the specified time limit.”
Barnardo’s said that it
“is concerned that escalations in fines for non-payment are most likely to be incurred by those least able to pay.”
Assurances from the Minster on both points—the level of the fine and an assurance that fines will not escalate for non-payment—would be helpful.
Amendment No. 40 would set the level of the fine at £200 as a probing amendment to extract the Minister’s intentions. The Children’s Rights Alliance said that fines can be counter-productive and might lead many young people “into debt and crime.” It also stated that this will be
“yet another trap door through which the most alienated children may be brought into contact with the criminal justice system and spiral into debt.”
Finally, the Local Government Association has expressed its concern about clause 47, saying:
“From a practical enforcement perspective, this provision assumes ability and/or willingness to pay, apart from other matters, notably costs to local authorities pursuing the payment of penalties.”
It would be helpful to the Committee if the Minister answered those concerns in his response.
Mr. Laws: Amendments Nos. 40 and 175 deal with similar issues and are living proof that life would be cheaper and people would be better off under the Liberal Democrats. Although the hon. Member for South Holland and The Deepings talked about social justice earlier, here we have proof that, were the Liberal Democrats to get their way, instead of setting the maximum level of the fine at an extortionate £200, we would set it at the more modest level of £50.
That is a way not only of trumping the Conservative party on the amendment paper, but of drawing attention to the fact that the income of young people is often very slight indeed. The level of benefit paid to young people has been gradually eroded in relation to average earnings over many years. There are often differentials between the levels of benefits paid to young people compared with those paid to adults. Although £200 might not sound like much to many of us in this place, it is a lot for many of the young people who will be affected by the provision. That is why I would suggest to the Minister that the Government should be contemplating a much lower maximum penalty. I would like to hear the Government’s thinking on the matter.
I would also like to support the comments made and the questions raised by the hon. Member for Bognor Regis and Littlehampton. He was good enough to indicate that he was expressing some of the concerns raised by Barnardo’s about the fact that the fines and the way they will operate will be left to regulation. Therefore, we do not know what the absolute level will be or how those fines will be recovered from people. The hon. Gentleman raised most of the issues covered in the Barnardo’s memorandum and he specifically asked for the Minister’s confirmation of what he has in mind for the maximum amount for the fine. I second his request for clarification on that matter. He also asked the Minister to indicate whether the fines will escalate over time if they are not paid; that was the second question asked by Barnardo’s.
The hon. Gentleman referred to two other points, but he did not ask the Minister specifically to clarify them. I would be grateful if the Minister responded. One of those points was whether there would be a sliding scale of penalty notices based on a young person’s income. I do not know whether the Government have ruled that out, or are considering that it would be useful not merely to leave that to guidance. The final point on which I request a response from the Minister is whether young people would be able to make the payments in instalments, and whether they would be financially penalised for doing so.
It is evident from the representations made by the local authorities on the clause that they are worried about taking large amounts of money from this group of young people, how the fines will operate, how collection will operate, and what the cost of collection will be. They are acutely aware of the low incomes of the young people we are talking about. Although the Minister will be tempted to say that that it is all up to guidance and is a minor administrative matter, it is not. It will be fundamental to how the Bill operates, how just or unjust it is, and whether young people will be able to pay the penalty notices or will be dragged further in to the criminal justice system.
Jim Knight: I will try to set out as quickly as I can but in sufficient detail how some of the process will work, as legitimate questions have been asked.
The clause provides the power for the Secretary of State to make regulations about penalty notices to be issued in the event of failure to comply with an attendance order. The regulations relate to the form and content of the penalty notices, their amount and the procedures for them to be issued and paid. The scope of the regulations is limited to the operation and administrative details of issuing a penalty notice, and will therefore be consulted upon.
We will consider having a sliding scale, but based on subsequent penalties rather than income. It is worth saying that it would be dependent on a young person being in employment and so able to afford to pay the penalty notices continuously—going through the process and paying them off one after another. The penalty could potentially be raised with each subsequent occasion that they have gone through the process and paid the penalties off. However, we have no plans for the amount to increase with non-payment, as the case would simply proceed to the next step, for obvious reasons.
Mr. Heald: Will the Minister tell us roughly what the rate of payment is for penalty notices generally? Is it correct that about 60 per cent. of them are paid?
Jim Knight: The hon. Gentleman may be correct. In the back of my mind is a figure of around two thirds, but I will correct that if I need to.
The regulatory power will be subject to the negative procedure. The regulations may also make provision for penalties of different amounts to be payable in different cases or circumstances, as I have just set out. The amount of the penalty must be prescribed in regulations to provide the flexibility to increase the amount to respond to changing costs, rather than put in primary legislation.
Mr. Gibb: Could that not be covered by inserting “level 1” or “level 2” on the standard scale, as is done in clause 45?
Jim Knight: I am not aware of whether there are standard levels for fixed penalty notices. If wisdom comes me on that point, I will pass it on. The levels set are in respect of the youth court, which is a criminal court, as we have discussed. There are therefore levels that apply to it.
It appears that 37 per cent. of 16 and 17-year-olds issued with fixed penalty notices do not pay them, according to the Ministry of Justice. I hope that that helps the hon. Member for North-East Hertfordshire.
Mr. Heald: It looks as though both the Minister and I were about right. According to those figures, how many young people will not pay these penalty notices and what will happen to those who do not?
Jim Knight: We have made some assumptions on that matter. We have assumed that half of that figure—18.5 per cent.—will not pay their fixed penalty notices; they will subsequently go to a youth court and receive a fine. A lower rate of non-payment is assumed for the reasons that I outlined in relation to fixed penalty notices and attendance notices; those reasons relate to the nature of the offences and the way in which the discussions about support will work.
As I have said, the amount of the penalty must be prescribed in regulations to provide the flexibility to increase the amount to respond to changing costs. The provisions relate to the operational arrangements and so are not specified in the Bill. A similar model is in operation in the case of penalty notices issued to parents of pupils of compulsory school age under section 444 of the Education Act 1996 and section 105 of the Education and Inspections Act 2006.
The figure of £50, which has been used and commented on, was used by the last Secretary of State for Education and Skills when the Green Paper was launched. It has no more status than that. As we consult on the regulations, we will consult on the figure and bear people’s views in mind when the regulations are drafted. It may be a little while before that happens.
Mr. Laws: The Minister mentioned the figure of £50, but I do not understand the point that he is making. Is he indicating that the level of the penalty notice is more likely to be at or around £50 than £200?
Mr. Laws: I apologise for detaining the Committee at this late stage, but unless I have missed them, in which case I apologise, I am not sure that we have had the answers to all of the questions that were put to the Minister. We asked whether there will be a sliding scale of penalty notices based on a young person’s ability to pay. I think he said that there will not, but that if people do not pay them, they will rise for those who can afford to pay because they are in employment and will not rise if people are not paying for reasons that are acceptable due to their income.
4.15 pm
Jim Knight: I said that the penalty could increase, not if a person did not pay the fixed penalty notice, but if they paid it and subsequently came back before the attendance panel because they continued not to fulfil their duty under clause 2. In that case, they would potentially face a higher fixed penalty notice. Otherwise, they could keep paying off the penalties because they were in employment and could afford to pay off the fines.
Mr. Laws: I am grateful. So, when there are repeat fines to pay, there would be differential treatment of people in employment versus those not in employment?
Jim Knight: I am not saying that there would be differential treatment for people in employment. I used that as example of someone who, because they are employed, could afford to keep paying off the fines. That scenario centres on people who persistently come before the attendance panel for fixed penalty notices but who simply keep paying them off.
Mr. Laws: So for repeat offenders there will, as I understand it, be an ability to pay-related element in the level of the fine?
Jim Knight: It is not an ability to pay-related measure; it is a different rate. We are talking about fixed penalty notices, not sliding penalty notices. It would be a fixed penalty notice, and if the person came back, it would be fixed at a higher level.
Mr. Laws: I am grateful to the Minister for his patience. So his answer is that there would be no separate treatment of any type in the Bill in relation to fines based on ability to pay. I thank the Minister for clarifying that.
On the first point about the level of the penalty fine, I was a little reassured when the Minister spoke about a lower figure or the amount of the EMA. That indicates that the Government may have a more realistic amount in mind for the penalty than the figure of £200, which is in one of the amendments that we are considering. On that basis, I shall not press my amendment to a Division, but I would be grateful if the Minister was able to clarify the two other points that were raised.
Jim Knight: Perhaps the hon. Gentleman could look at clause 47(4)(c). Regulations may make
“provision as to the methods by which penalties may be paid”.
We can certainly look at whether there are good grounds to allow people to pay by instalments—for example if the attendance panel confirmed the fixed penalty notice and thought that that was appropriate.
Mr. Laws: The Minister is saying that he will consider it, but that the Government have no position on it at the present time. He has not mentioned escalation of the penalty notice over time and about what happens if that is not paid, but I will not press the amendment to a Division.
Mr. Gibb: That was an interesting response from the Minister. As I mentioned at the outset, this was a probing amendment to ascertain the likely parameters of the fixed penalty notice. The Minister indicated that the sort of figure being looked at is around £50—perhaps slightly more because of the time that has elapsed since the publication of the Green Paper, but certainly not in the realms of the figures that Barnardo’s was concerned about. That is very welcome.
I was slightly taken aback by the Minister’s assumption that only 18.5 per cent. of people would not pay the fixed penalty notice. In his interventions, my hon. Friend the Member for North-East Hertfordshire made the point, using information obtained from the National Audit Office report, that about 37 per cent. of people do not pay, as the Minister confirmed. That assumption is rather an odd one, but as Alison Wolf has pointed out, there are a number of odd assumptions about cost in the regulatory impact assessment on the measures in the Bill. Given the Minister’s assurances, I shall not press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Gibb: I beg to move amendment No. 39, in clause 47, page 26, line 16, at end insert—
‘(4A) Any provision made under subsection (4)(g) may not include appearance before any court of law other than the Youth Court.’.
The purpose of this amendment is to put into the Bill an explicit prohibition on taking legal action against a young person who does not pay the penalty notice in any court other than the youth court. As the Minister has said, that is the court where the matter will be dealt with. The Government’s document, “Raising Expectations” states in paragraph 4.34:
“If the FPN”—
financial penalty notice—
“is unpaid the local authority could bring the case before the Youth Court, where the penalty on conviction would be a fine... If a fine is unpaid, the Youth Court cannot use custody as a means of enforcing it, although it has a number of other options, including taking the money from wages or imposing an unpaid work requirement.”
It would be helpful if the Minister explained why there is no explicit reference to the youth court in the clause and why he cannot accept the amendment.
Jim Knight: Hopefully, the hon. Member for Bognor Regis and Littlehampton and I can reach an understanding on this. I agree with the intention behind the amendment. I think it right that the most appropriate forum where such enforcement action is required, except in one or two rare cases that I shall specify, is almost always the youth court. Under the current youth justice system, a person below the age of 18 would not appear before an adult criminal court solely because they had failed to pay a fine. The amendment is therefore unnecessary. Enforcement action other than that in the youth court would be taken only where a young person was being prosecuted for other offences alongside the offence of failing to pay a fine.
Magistrates courts may deal with cases that involve people under 18 but only if they are tried with an adult. Young people may appear in the Crown court if they are jointly tried with an adult whose case needs to be heard in that court or where the charge is very serious and the sentencing powers of the youth court are felt to be inadequate. Homicide and rape cases, for example, are always be heard in the Crown court. Because it is right that there should be flexibility in our court system to deal with the most serious offences, or those involving young people together with adults, in courts other than the youth court, I cannot accept an amendment and I hope that the hon. Gentleman will withdraw it.
Mr. Gibb: I am sure that that exception could have been incorporated into an amendment to the Bill. However, we have aired the issue, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 ordered to stand part of the Bill.
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