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Lord Tope moved Amendment No. 236A:


(" . The governors of an institution incorporated under section 15 of the Further and Higher Education Act 1992 or under section 112 of this Act shall not incur any personal liability in respect of anything done reasonably and in good faith in the exercise or purported exercise of their powers under section 18 of the Further and Higher Education Act 1992 as amended by this Act.").

The noble Lord said: I rise to move Amendment No. 236A, which stands in my name and that of my noble friend Lady Sharp. I am pleased to see that the noble Baroness, Lady Blatch, has also added her name. This amendment seeks to address an issue of great concern to college governors: that of their personal liability. Since colleges were incorporated in 1993, there has been great concern that in certain circumstances governors might face claims that they were personally liable for problems resulting from some action or default on the part of the governing body which led to a college entering serious contractual or other difficulties. As the law stands at present, governors of further education colleges have significantly less legal protection than school governors, company directors and charitable trustees in such situations.

This question has been raised by the representative bodies in the further education sector on a number of occasions, both under this Government and their predecessor. It has been the consistent view of the DfEE that provided individual governors act honestly and without ulterior motive, showing reasonable care and common sense within the scope of their functions and procedures, they will in practice be protected by existing law against any risk to their own assets as a result of the governing body's decision.

However, the department has acknowledged that there could be exceptional circumstances under which a question of personal liability might arise. More significantly, legal advice from outside the department casts considerable doubt on this interpretation of the law.

I move to another aspect. The Committee on Standards in Public Life was sufficiently concerned about the potential problems in this area that it drew attention to the issue in its second report and subsequently commissioned a legal study on the comparative position across a number of public bodies. That study--entitled Personal Liability in Public Service Organisations, published in summer 1998--confirmed the anomalous position in relation

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to college governors in particular. The conclusions to that study made clear the need for legislation to ensure equal legal protection for all appointees to responsible bodies of public service organisations in the form of a statutory discretion to grant relief equivalent to Section 61 of the Trustee Act 1925 and Section 727 of the Companies Act 1985.

In conveying the recommendations of the committee to the Prime Minister, the noble Lord, Lord Neill, made it clear that the committee regarded the need for legislation as pressing--that was in the summer of 1998--in order to ensure that all appointees had a right to seek relief from the courts if potential liability arose. To date, the Government have not seen fit to act on those recommendations. I hope that the Minister will either accept this amendment in his reply tonight--in which case I shall be very pleased, as will many college governors--or, at the very least, tell the Committee how and when the Government will act to implement those particular recommendations of the Neill committee.

It is becoming increasingly evident that the question of personal liability being raised in the courts is rather less remote than the DfEE has imagined. This is an issue of considerable importance to college governors up and down the country. Those of us who meet college governors, as many of us do, will have heard it raised by them on many occasions. I beg to move.

Baroness Blatch: The noble Lord, Lord Tope, has covered the ground extremely well. The normal defence in such situations has been that one was acting reasonably; the defence of reasonableness has been so long as governors, or those who sit on the boards of charities, act in good faith, but the world has changed. Personal liability, particularly in the area of governors, as has been well recorded by the noble Lord, Lord Tope, is giving cause for concern. There are very firm recommendations that legislation is needed in this area. It will not be enough for the Minister simply to say that, provided people act reasonably and in good faith, they will receive full protection. Therefore, it will be interesting to hear what the Minister has to say. In the mean time, I support this amendment.

Lord Bach: We have much sympathy with this amendment. We do not resist it. We ask the noble Lord to withdraw his amendment so that we can consider what he and the noble Baroness have said. I do not think that he can expect very much more than that.

We agree with the previous government that if individual governors act in a way that the noble Lord described, honestly and without ulterior motive, showing reasonable care and common sense within the scope of their functions and procedures, as they invariably do, they will be protected against any risks to their own assets as a result of a decision of a governing body. We do not believe that the real risk is anything more than minimal. We do not know of a case where a further education governor has been affected.

We believe that the one group of governors at slightly greater risk is that comprising those in designated institutions because they act as individuals

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rather than through a corporation. We are taking steps to reduce that risk in Clause 112 by allowing for the incorporation of such institutions.

I point out, in passing, that college corporations may be, and have been, incorporated under both Sections 15 and 16 of the Further and Higher Education Act 1992. The powers are provided under both Sections 18 and 19 of that Act.

This amendment is so drafted--which is why we cannot accept it--as to exclude many governors from the protection it seeks to give. However, we are aware that the issue of liability is, as has been said by representatives of all parties here, of concern to many governors in the FE sector. We should not wish such a perception to affect the valuable work of the governors or to serve as a disincentive to new governors entering the sector.

We are certainly prepared to reconsider this issue, how best we can give some reassurance to FE governors, and to come forward with our own proposals at a later stage. With that assurance, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Tope: I am grateful to the Minister for his reply. I accept the assurance that the Government acknowledge that there is just a viable concern. We all hope that if college governors act reasonably and so on, they will not suffer for it; but the strong possibility exists. They are, in law, in a different position. They do not have the protection of, for instance, school governors. There is an issue here that was addressed by the Neill committee. It is not just my opinion or that of college governors.

I am pleased to hear--perhaps a little belatedly, but better late than never--that the Government will address the issue. I hope that they will be able to return with their amendment so that we know not only that they will address it, but how they will do so. I look forward to that, as will all college governors. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 110 [Assessments relating to learning difficulties]:

Baroness Darcy de Knayth moved Amendment No. 237:

    Page 49, line 41, after ("1996,") insert--

("( ) a person is identified by the school as someone who will qualify as a student with a learning difficulty or disability (or both) within the meaning of section 13(2), (3) and (4);").

The noble Baroness said: In moving Amendment No. 237, I should like to speak also to Amendment No. 241. I say immediately that these are probing amendments. As they stand, they are alternative ways of achieving the same end. I think that one of them is defective, in any case.

Their aim is to ensure that in their last year of school, students with learning difficulties are assessed so as to identify their individual support needs and arrangements irrespective of whether those students have a statement of special educational need. The

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disability consortium welcomes the fact that under this Bill all young persons with statements must be assessed. It is concerned that those without statements simply may be assessed. Thorough assessment has often been identified as a major factor in the subsequent successful performance of students and trainees with learning difficulties and/or disabilities. The Tomlinson report recognised that.

My noble friend Lord Rix, who apologises for his non-attendance today, spoke at Second Reading on 17th January, at cols. 921 to 922, about a London study into the transition experiences of people with severe learning difficulties, which demonstrated not only the problem young people had in obtaining a proper assessment but also the quality of those assessments when they were carried out.

A young person may well have a learning difficulty but no statement; he may be one of the 18 per cent as opposed to one of the 2 per cent mentioned by the noble Baroness, Lady Blatch. As the Committee knows, the number of statemented pupils varies enormously between LEAs. Many statements are resource-led but, on the other hand, an LEA may cope so well with pupils with learning difficulties that there is no need to issue a statement of special educational need.

The problem is that those young people without statements are not required under the code of practice to have a transition plan so it is those young people who experience most difficulty during transition. Some may have quite significant impairments and some may have less obvious ones such as a mild learning difficulty or dyslexia which is not sufficiently severe to have triggered a statement. They will often have attended a mainstream school but when they move on to an FE college or training programme, they find that, because their needs have never been properly assessed, they cannot cope with their learning programme. They become disenchanted and may drop out.

The FEFC additional support funding mechanism has often been praised for the way it can respond flexibly across the whole spectrum of disabled learners. I am sure that we should regret it if the Bill created a divided entitlement between those who have statements and those who do not.

As I said at the beginning, these are probing amendments and I understand that it would not be practical to accept them, thereby imposing a duty to assess all school-leavers with a learning difficulty as defined in Clause 13. In fact, it would not even be necessary in some cases. But we are looking for a clear recognition that many of those school-leavers without statements but with learning difficulties will benefit hugely from proper assessment and may well go under if their needs are not assessed. I look forward to hearing the Minister's response but I hope that she will say something about guidance and that she will recognise how crucial it is for many school-leavers without statements to have an assessment before they leave. I beg to move.

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7.30 p.m.

Baroness David: I want to add my support to these amendments. I think it is a difficult stage for a lot of children--moving from one stage of education, school, to further education. An assessment may be of great help to them. They need some help at this stage if they have been missed out before and their disability has not been recognised. I hope that we can have some reassurance.

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