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Lord Northbourne: My Lords, I support all three amendments. I did not have the benefit of seeing the letter sent to the noble Lord, Lord Judd—there is no
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Baroness David: My Lords, I support these three amendments too. Yesterday, I received a letter from UNICEF reminding me that next year, 2007, a report has to be produced on how we conform to the convention on human rights. I should have thought that we would get a good mark if we could say that we had enshrined this provision in a Bill. I hope that the Minister will take that important issue into account.
Baroness Buscombe: My Lords, these Benches think Amendment No. 7 unnecessary for two reasons. First, a duty already exists under Section 19(1) of the Education Act 1996 for local authorities to provide,
- “suitable ... education at school or otherwise ... for those children ... who ... may not for any period receive suitable education unless such arrangements are made for them”.
Secondly, Section 7 of the Act places a duty on parents to secure that every child receives efficient and suitable education. A parent receives support in the exercise of this duty from local authorities relating to the promotion and provision of education.
We understand that Clause 4 will be supported by new statutory guidance. In producing the draft guidance, we have listened carefully to the important issues raised by noble Lords in Committee, and it has been considerably strengthened in the areas of placing children identified as not receiving suitable education.
3.30 pm
The Parliamentary Under-Secretary of State, Department for Education and Skills (Lord Adonis): My Lords, I hope that I am not guilty of becoming a prisoner of institutional Whitehall. Most of my Whitehall colleagues would certainly not convict me of that offence, although they might convict me of others. I have given a very great deal of consideration to Amendments Nos. 1 and 2 since my noble friend first raised them in Committee, including extensively quizzing my department’s legal advisers. I say frankly to my noble friend that I am attracted to simplicity in the law, and to calling a spade a spade. I was instinctively attracted to a simple clause at the outset of the Bill which provided for a positive duty to secure the right to education on the lines that he has set out.
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However, having explored the issue exhaustively over the summer, I am persuaded by the arguments that we should not change the law in the way proposed by this amendment. While at best it would not confer any new rights over and above those which currently exist, although I accept that it would declare them more clearly, it might—for me, this is the decisive argument—have the perverse effect of requiring the state to make available types of education which we do not favour on grounds of equity, values or standards. I set out these points at length in a letter to my noble friend, to which he referred. I am sorry that he did not receive it longer before the debate, but let me summarise the arguments.
Rights to education are already guaranteed in England through Article 2 of the First Protocol to the European Convention on Human Rights, for children by Article 28 of the UN Convention on the Rights of the Child, and in national law by virtue of the Human Rights Act 1998. The Act also sets out in detail the procedure for making a claim that a right has been infringed and the remedies available for a breach. To legislate along the same lines in an education Bill is at best superfluous and at worst might undermine the regime set out in the Human Rights Act 1998.
However, the more substantial concern that I want to address to my noble friend is that the “right to education” in Article 2 of Protocol 1 of the European Convention on Human Rights, as given effect in national law by the Human Rights Act 1998, is phrased negatively. It states that,
The fact that the right is phrased negatively has crucially influenced the way in which the courts have construed the right. It has been held that the negative formulation does not require that member states establish at their expense, or subsidise, education of a particular type or at any particular level, but rather implies for those under the jurisdiction of a member state the right to—to cite the European Court of Human Rights in the Belgian linguistics case—
Its primary objective has therefore been held to be to guarantee a right of equal access to the existing educational facilities.
A positive right along the lines of that envisaged by this amendment would, I am advised, be likely to be construed differently by the courts. It might be interpreted as imposing an obligation on local authorities to ensure that children could receive education of a particular type or standard which the authorities were unable to provide, or which they considered it positively undesirable to provide. Taking, for example, the Belgian linguistics case, the European Court of Human Rights held that the right to education, as phrased negatively, did not give rise to a right to be taught in the language of the child’s or their parent’s choice, nor was there a right of access to a particular school of choice. Logically, therefore, a positive right might be held to require the state to make provision for teaching in, or schools for, languages other than English, or in any type of faith or cultural school—an issue which of course goes to the heart of debates we will have later, where I believe
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In the case of Scotland, my noble friend is right—there has been no case so far but, to some extent, that supports my argument. We simply do not know where such a right might go if cases were brought under it requesting types of education that the state thought undesirable.
Existing rights to education of a character which we believe worthwhile appear to me entirely robust. They rest on a fourfold foundation: Section 7 of the Education Act 1996, which requires parents to cause their children to receive efficient and suitable full-time education; Section 10 of the Education Act 1996, which imposes a duty on the Secretary of State to promote the education of the people of England and Wales; Section 13, which requires local authorities to secure that efficient education is available to meet the needs of their populations; and the duty on each school’s governing body to conduct the school with a view to securing high standards of achievement.
The effectiveness of this fourfold foundation was set out only this year by the noble and learned Lord, Lord Bingham, in the case of Ali v Lord Grey School. He said:
“This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child. Depending on age, maturity and family background, the child may or may not share that interest. But the parent has a statutory duty. Secondly, the regime recognises that for any child attending school it is that school through which the education provided by the state is in practice delivered. The relationship between school and pupil is closeand personal: hence the restrictions on its interruption or termination. It is a relationship resembling, but for the want of consideration, a contractual relationship. But, thirdly, the regime recognises the need for a safety net or longstop to ensure that the education is not neglected of those who for any reason (whether ‘illness, exclusion from school or otherwise’) are not being educated at school in the ordinary way. It is plainly intended that every child of compulsory school age should receive appropriate education in one way if not another, and that responsibility rests in the last resort with the LEA”.
Those are the unambiguous words of the noble and learned Lord, Lord Bingham, and, on that basis, I hope I may have persuaded my noble friend that the status quo is supportable. I will, however, continue to reflect further on his arguments.
We believe that Amendment No. 7, too, in the name of the noble Baroness, Lady Walmsley, is unnecessary for two reasons. First, a duty already exists under Section 19(1) of the Education Act 1996 for local education authorities to,
- “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”.
Secondly, Section 7 of the 1996 Act places a duty on parents to ensure that every child receives efficient and suitable education. Parents can choose to send their children to school or ensure that they receive education otherwise. A parent receives support inthe exercise of this duty by virtue of duties placed on
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Clause 4 will be supported by new statutory guidance, a draft of which is currently available and has been published for consultation. In producing it, we listened carefully to the important issues raised by noble Lords in Committee. The draft guidance has been considerably strengthened in the area of placing children identified as not receiving suitable education. There is now clear reference to local authorities having a statutory duty to ensure that suitable education is provided for children who might not otherwise receive it.
I hope that I have managed to reassure the noble Baroness that the effect that she seeks to achieve is fully covered by existing legislation.
Lord Judd: My Lords, I am very grateful again to the Minister for his considered and full reply to the points that we have just made. I am encouraged that he is prepared to think about it more. I am sorry that it took up so much of his Summer Recess, but I am sure that a little more time spent on it would be well used.
I shall make just two points. First, I remain convinced that, if we believe that every child in our society has a right to an education, we should say so loudly and clearly. It seems odd, to say the least, to be producing a Bill of this magnitude that is so far-reaching without spelling out in it that we take that right seriously and are committed to it.
After quite a number of years in political life, there are occasions on which I get angry when decisions do not go the way I think they should. There are also occasions on which I become very sad. One of the things that makes me the most sad is when there is a lot of common ground between people about what is attempted, and not very much is dividing them, but a great historic opportunity clearly to spell out something that we see as central to our society and to the values that we hold dear is missed. That is where political management gets in the way of political leadership. We have a task and an opportunity to spell out to the nation in the legislation that we are approaching on its behalf the cause which we are espousing.
Naturally, I take very seriously all the points that my noble friend has made. However, my second point is to emphasise that in Clause 1(1) the local education authority is required to do all sorts of things, but nowhere in those injunctions is the duty to secure the right to education of every child explicitly spelt out. The implicit arguments may be in the convention and elsewhere, but it seems rather strange that that duty is not explicitly included in the injunctions to the local education authority.
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In writing to me, my noble friend generously said that he would be happy for me to meet his Bill manager and the department’s legal advisers to discuss what is at stake. He has also said that he is prepared to think about the matter again. I would now like to take the opportunity of having the discussion he suggests, but I give warning that my approach will be to enlist the support and expertise of his legal advisers in finding the right way of spelling out this strategic cornerstone rather than avoiding spelling it out. If it is acceptable to my noble friend and if the noble Baroness is willing, I would be delighted if she would accompany me. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas moved Amendment No. 3:
The noble Lord said: My Lords, I should like to speak to Amendment No. 5 as well. The time has come to take the opportunity of the Bill to broaden schools’ focus a little. We have had several decades of focusing ever more closely on examinations and achievement to the point where examinations have become an end in themselves and have started to damage the real educational progress that we hope pupils will make. Over the past year or two, a lot of people in the educational establishment have started to look again at the wider purposes of school and what we hope they will do for our children. We can use the opportunity of the Bill to signal that in a couple of small ways.
First, Amendment No. 3 would delete the word “educational” where it is essentially repetitive, because it is a subsidiary clause to a statement that clearly focuses on education and its provision. Schools ought to have regard to the whole potential of children—not just whether they will pass Maths and English but what sort of people they will turn into. Whatever their potential, in whatever sphere, and whether or not the word “educational” can be stretched so elastically that it covers everything from football to character, it would do no harm to the Bill to remove that word and to make clear that we expect schools to focus on the child as he or she is, not on some narrow aspect of that child. Amendment No. 5 merely repeats that sentiment in an earlier Bill where it would find a good home.
I hope that the Government will feel, as I do, that this is how schools should operate and that it is therefore a change worth making. I beg to move.
3.45 pm
Baroness Walmsley: My Lords, I shall speak to Amendments Nos. 55 and 56, which are grouped with those of the noble Lord, Lord Lucas. These amendments highlight the fact that educational and wellbeing outcomes are closely linked and must be made mutually reinforcing in the Bill. They would ensure that the Bill and the role of the governing body it outlines work towards improving all five well-being outcomes for children as set out in
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We want the Bill to ensure that schools help to deliver improvement on all five well-being outcomes for children. Local authorities have embraced the provisions in the Children Act 2004 that create integrated children’s services and give them a duty to improve outcomes for all children. More than 130 now have directors of children’s services, and all over the country authorities are developing children’s trusts to deliver better, more integrated services for children. The development of those integrated services is being reflected in inspection methodology through joint area reviews. The current schools inspection framework, introduced last year, and the creation of the single inspectorate in this Bill are movement in the same direction. If that approach is to be embedded within all children’s services, the Bill needs to support the Children Act 2004 and to reflect in schools the joined-up approach being taken at local level.
Through SI 2149/2005 and government guidance there is a clear onus on local authorities to ensure that schools are consulted and have full input to developing well-being outcomes locally. At present, however, that onus is only in one direction. Given schools’ obvious importance in delivering the educational fulfilment and wider elements of well-being for children, the onus on governing bodies to promote well-being must be strengthened to ensure coherent and effective local delivery for children and young people. We tried to persuade the Government of that in 2004 but did not succeed, so I am trying again today.
When amendments on Every Child Matters were moved in Committee, the Government countered that the Children Act 2004 was sufficient to ensure schools’ co-operation in its delivery. I dispute that. Certainly, some schools are working well with other partners to ensure delivery of wider well-being outcomes, yet others are not and do not see matters beyond educational attainment as related and part of their core business in children’s development. Indeed, the more independent schools become, the more difficult it will be to keep well-being at the heart of all their activity unless there is a clear duty.
The Bill should therefore complement and provide coherence by including provisions to ensure that education outcomes reinforce well-being outcomes and vice versa, for they are inextricably linked. The amendment is well supported by many organisations in the Every Child, Every School coalition.
In Committee, there was considerable support for this point of view across your Lordships’ House. The noble Lord, Lord Dearing, said:
“The purpose of our amendment is formally to underlinethat the Every Child Matters agenda, as set out in the Children Act 2004, is directly relevant to the educational attainment of every child, and that the educational purposes of the Bill will not be fully achieved unless the agenda is part of its provisions”.—[Official Report, 5/7/06; col. 269.]
The noble Baroness, Lady Massey of Darwen, said:
“We really will not get higher standards in our schools unless we focus on wider issues of welfare and well-being”.—[Official Report, 5/7/06; col. 272.]
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The noble Lord, Lord Adonis, pointed out that,
- “the law does not need changing to achieve those objectives; it achieves them already”.—[Official Report, 5/7/06; col. 274.]
However, practitioners tell me that unless we have a clear duty, that will not always happen. It already happens in many cases and I am sure it will continue to do so. But this Bill is about putting clear duties on people. I believe that the law does not make it clear if it excludes schools. Let us rectify that today.
Lord Northbourne: My Lords, I support all the amendments in the group. This raises a fundamental question about what education is for and is about. The insertion of the word “educational”, which the noble Lord, Lord Lucas, would like to take out, suggests that education is about only academic education. Do we believe that? I think that most noble Lords would agree that education is about much more than that. It is a crucial issue. The removal of “educational” would leave a perfectly satisfactory clause; its inclusion unnecessarily raises all sorts of difficult issues.
Even if the amendment tabled by the noble Baroness, Lady Walmsley, does no more, it would celebrate or establish the coherence between the Children Act and this Bill. That in itself is a most important objective. I support both amendments, subject to what the noble Lord has to say.
Baroness Morris of Yardley: My Lords, I support the amendments, particularly Amendments Nos. 55 and 56. In doing so, I declare an interest as chair of the Children’s Workforce Development Council and president of the National Children’s Bureau. The Minister may persuade me that the law is sufficient to achieve what we want, but I would not want to miss an opportunity. This is a very important debate, which is a tribute to the Government’s achievements in Every Child Matters and the five outcomes. The delivery of the five outcomes into legislation was a key moment in moving towards an integrated service for children in workforce reform. In acknowledging that in serving children well and in bringing them up and preparing them for life, everything is important, but by themselves they are not sufficiently important and have to be integrated.
These old debates about our schools, education and caring, and whether we should find time to look for the personal development of children or whether education is always about passing exams were, to some extent, put to one side. The Every Child Matters outcomes were a very proper acknowledgement that what we want for children is the development of all their abilities—certainly academic but others as well. We want an integrated service in which to deliver that. That does not take away from the very special talents that teachers have and from the very particular purpose of schools but, as I have travelled around the country, I have seen education delivered best when it has been integrated with other children’s services.
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