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The judgment made on failure or unsatisfactory performance will not be imprecisely defined. The LSC’s published intervention policy will make clear precisely what is meant in practice. The precursor to that document, Identifying and Managing Underperformance, which I have made available to noble Lords, refers to providers who have been awarded a grade 4 by Ofsted inspectors, which is the most unsatisfactory inspection grade, and to situations where an area of provision is deemed to be unsatisfactory or where the LSC’s analysis of learner success rates shows that more then 25 per cent of provision falls below the minimum level of performance. The definitions we have in place now, as set out in the guidance document Identifying and Managing Underperformance, will, no doubt, be extensively debated during the consultation process that the LSC will be required to conduct as a result of government Amendment No. 29. We will take full account of the consultation undertaken as a result of that amendment.
We expect that, in the vast majority of cases where failure is identified under the procedures I have just set out, the governing body would take the necessary action to improve performance before any intervention was needed. The LSC would continue to work with the governing bodies and to respect their autonomy during that process. I also reassure noble Lords, and reiterate for the record, that the LSC would only be able to direct dismissal where the governing body already has the power to dismiss under its own articles of association, so the role of the LSC would be akin to that of a local authority in a case of extreme failure on the part of a school. The corporation of the institution, which is normally the governing body, being the employer of the staff in an FE college, would continue as the employer, and this would not change that relationship.
Where the LSC has invoked its power to direct a governing body to dismiss a member of staff, there will be a very clear evidence base for such a decision. That should provide sufficient evidence for governing bodies to successfully defend any claims of unfair dismissal under employment law. The Secretary of State’s retention of the powers to direct the LSC where he is satisfied that it would be appropriate to do so is also important in this matter.
The noble Baroness, Lady Morris of Bolton, wished to press the principle of Clauses 17 and 18. I entirely respect her decision. However, on the point by the noble Baroness, Lady Walmsley, if Clauses 17 and 18 remain in the Bill, we would be prepared to look sympathetically at her Amendment No. 26, which sets out a requirement for a further formal statutory process to be gone through. We would consider bringing back amendments at Third Reading to ensure that there is a further, formal statutory process whereby the principal of a college of further education has to be written to, along with the governing body, by the Learning and Skills Council. We would further require that that report must set out
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I have given a good deal of reassurance about how these powers will be exercised. As I say, they are for cases of extreme failure. In that context, I hope that the House will feel able to continue to support Clauses 17 and 18.
Lord Roberts of Conwy: My Lords, the Minister’s Amendment No. 38 provides that Welsh Ministers must prepare a statement of their policy and so on, but it makes no reference to the necessity to secure approval from the Assembly for the statement.
Lord Adonis: My Lords, my understanding is that they would need to secure that approval. I need to come back to the noble Lord to explain precisely what the arrangements would be.
Baroness Walmsley: My Lords, I am grateful for the Minister’s reply and for the support of the noble Baroness, Lady Morris of Bolton. I welcome the Government’s Amendments Nos. 27 and 33. The noble Lord, Lord Walton of Detchant, asked a question that was also asked in Grand Committee, when he was not in his place. The Minister’s reply was the same, and I will give the Minister the same response now: local authorities are elected bodies. That is our main objection to giving these powers to the LSCs—they are not elected bodies. The Minister asked the noble Baroness, Lady Morris of Bolton, whether she might think differently if she were sitting in his position. We accept that there are hard decisions to be made sometimes, but if I were sitting in the noble Lord’s position when these hard decisions had to be made, I would much rather recommend to the Secretary of State that he or she made those decisions than leave them to the unelected learning and skills councils.
Like the noble Lord, Lord Roberts of Conwy, I am concerned that the Assembly for Wales should have the same powers of review of this policy that Parliament has on the English side.
Lord Adonis: My Lords, I have now found the relevant page in my notes and can tell the noble Lord, Lord Roberts, that Welsh Ministers must consult as appropriate when preparing or revising their intervention policy statement. They must lay the document before the National Assembly for Wales and publish it. The Assembly will play a formal part in the process.
Lord Roberts of Conwy: My Lords, where is that statement?
Lord Adonis: My Lords, it is in my explanation of the various amendments. I cannot point to the precise place, but I assure the noble Lord that it is there.
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Baroness Walmsley: I am relieved to hear it, my Lords. As a resident of Wales, I would be drummed out otherwise.
I am most grateful to the Minister for his comments about Amendment No. 26 and the Government’s undertaking to look kindly upon it, should Clause 17 remain in the Bill. In the light of his words, I will not press any of my amendments today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 to 26 not moved.]
Lord Adonis moved Amendments Nos. 27 to 33:
( ) if it considers it appropriate in consequence of a review, prepare a revised statement of its policy.” (a) undertake such consultation as it thinks appropriate; (b) consider any representations made to it about the policy to be set out in the statement.”“(4A) The council must send a copy of the statement or revised statement prepared by it to the Secretary of State.
(4B) If the Secretary of State approves it he shall lay a copy of it before each House of Parliament.
Clause 17 , page 12, line 43, leave out “its policy” and insert “the statement most recently published under subsection (4C)”
On Question, amendments agreed to.
Baroness Morris of Bolton moved Amendment No. 34:
The noble Baroness said: My Lords, while I thank the Minister for his usual courtesy and reassurances, we believe that this clause sends out the wrong message, and I would like to seek the opinion of the House. I beg to move.
5.30 pm
On Question, Whether the said amendment (No. 34) shall be agreed to?
Their Lordships divided: Contents, 187; Not-Contents, 135.
Addington, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
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Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Bell, L.
Biffen, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Burnett, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Chadlington, L.
Chidgey, L.
Chorley, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Dean of Harptree, L.
Dearing, L.
Dholakia, L.
Dundee, E.
Dykes, L.
Eccles, V.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkland, V.
Fearn, L.
Feldman, L.
Ferrers, E.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Garden, L.
Gardner of Parkes, B.
Glentoran, L.
Goodlad, L.
Greaves, L.
Greenway, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Peckham, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kerr of Kinlochard, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Lewis of Newnham, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E. [Teller]
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Murton of Lindisfarne, L.
Naseby, L.
Neuberger, B.
Newby, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Palmer, L.
Palumbo, L.
Patel of Bradford, L.
Patten, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Prashar, B.
Quinton, L.
Ramsbotham, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
St. Edmundsbury and Ipswich, Bp.
St. John of Bletso, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Sheikh, L.
Shutt of Greetland, L.
27 Feb 2007 : Column 1538
Smith of Clifton, L.
Steinberg, L.
Stern, B.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wakeham, L.
Waldegrave of North Hill, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warwick of Undercliffe, B.
Williamson of Horton, L.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
27 Feb 2007 : Column 1539
Snape, L.
Soley, L.
Stevens of Kirkwhelpington, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
5.41 pm
Clause 18 [Intervention: Wales]:
Lord Adonis moved Amendment No. 35:
The noble Lord said: My Lords, I am not sure that these amendments will still apply, but I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 36 and 37 not moved.]
Lord Adonis moved Amendment No. 38:
(a) prepare a statement of their policy with respect to the exercise of their powers under section 57, (b) keep it under review, and (c) if they consider it appropriate in consequence of a review, prepare a revised statement of their policy. (a) undertake such consultation as they think appropriate; (b) consider any representations made to them about the policy to be set out in the statement.(3) The Welsh Ministers must lay before the National Assembly for Wales a copy of any statement or revised statement prepared by them under this section.
(4) The Welsh Ministers must publish any statement or revised statement prepared by them under this section.
(5) The Welsh Ministers must have regard to the statement most recently published under subsection (4) in exercising, or deciding whether to exercise, any of their powers under section 57 in relation to an institution.””
[Amendment No. 39, as an amendment to Amendment No. 38, not moved.]
On Question, Amendment No. 38 agreed to.
Baroness Morris of Bolton moved Amendment No. 40:
The noble Baroness said: My Lords, I have already spoken to the amendment. I beg to move.
Lord Adonis: My Lords, I do not propose to divide the House because the clause refers to the same powers in respect of Wales as the noble Baroness has
27 Feb 2007 : Column 1540
On Question, amendment agreed to.
Clause 19 [Power to award foundation degrees]:
Lord Adonis moved Amendment No. 41:
“( ) In subsection (5) (powers comprised in the power to grant awards), for “Any” substitute “Subject to subsection (5A) below, any”.
“(5A) An order under subsection (1) above specifying an institution as competent to grant in pursuance of this section only the kind of award mentioned in subsection (2A) above may provide that the institution’s power to grant such awards does not include the power described in subsection (5)(a) above.””
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 42 and 44. The amendments relate to Clause 19, which concerns the foundation degree-awarding powers of further education colleges.
There have been many hours—indeed, days—of discussion in and outside the House on Clause 19. These government amendments reflect those long discussions. I hope that they will enable us to establish a consensus across the House and I thank all noble Lords who have helped us to find a good way forward, including both opposition Front Benches. Perhaps I may mention also John Hayes, from the opposition Front Bench in another place, my noble friend Lady Warwick and her colleagues in higher education, including many Members of this House, and the noble Lord, Lord Dearing, who I know will speak after me to Amendment No. 43.
In our discussions, my honourable friend the Minister for Lifelong Learning, Further and Higher Education and I have reflected on three issues in particular, in relation to which we are now proposing amendments to Clause 19. The first issue is whether further education institutions should be allowed to authorise other institutions to award foundation degrees on their behalf. The second issue is whether the use of the new foundation degree-awarding powers should be subject to scrutiny after a fixed period. The third is whether there should be a formal review of the effects of FE colleges awarding their own foundation degrees.
In all our discussions, the needs of learners and quality control have been paramount. We must take every precaution to protect not only the proud reputation of the UK’s higher education brand, but also the prestige of the foundation degree both at home and abroad. We have worked closely with the Quality Assurance Agency in drawing up a draft criteria document, which has been made available to your Lordships. The document is a cornerstone of our rigorous quality assurance mechanism and will form the basis of the QAA’s assessment of any further education institution in England applying for foundation degree-awarding powers.
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