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Lord Adonis: That might happen through Connexions or through local authority B’s direct engagement with employers in its area, which might have nothing, as I said in response to the noble Lord, Lord Lucas, to do with the Connexions database. It could come through either route.
Lord Elton: Does this raise the question of what standard of proof is required? What can an employer reasonably show to either Connexions or to the local authority in his area to say, “I, in good faith, believed that arrangements had been made”? Will it always have to be a letter from a place of education, which may take some months to require, or should there be a pro forma, a recognised means, that can be endorsed by an employer or an educator, as the case may require, which will be recognised not merely by the local authority but also by the courts?
Lord Adonis: We are now getting into enforcement. The penalty notice, under Clause 22 on the enforcement of the duty to check, must state all the factors that the noble Lord has mentioned. It must state the grounds for imposing a penalty. It must of course also include the evidence that there is a breach and the consequences of non-payment. There is a proper process for employers to contest action taken by local authorities, which will help to ensure that local authorities take only action which is reasonable in the circumstances.
Lord Elton: I was hoping that we might provide something which avoids the contest being necessary; that is, that there should be some standard, recognised evidence. For employers in those industries which still employ large numbers of workers in one place, this may be a very large job.
Lord Adonis: We covered that point in our earlier discussions. The standard evidence would be a pro forma from a learning provider. We discussed that in response to the debate on Clause 21 initiated by the noble Baroness, Lady Garden. We would work with employers to see that a standard pro forma is provided, which stipulates appropriate education and training. I believe that that would deal with the great generality of the cases to which the noble Lord referred.
He is now raising the question of what happens where the local authority believes that there is a breach. The local authority must issue a penalty notice in a recognised format, as set out in Clause 22. Clauses 23 and 29 set out how these can be contested and, if necessary, withdrawn by local authorities where there is insufficient evidence for them to have been issued in the first place.
Lord Elton: I am sorry to go on worrying at this, but the next thing is what happens to the young person? Presumably, he is also in breach of his duty under Clause 2. In the example I have chosen, they do not belong to local authority B, so, presumably, local authority A has to be alerted by local authority B in order that it may pursue the young person.
Lord Adonis: Yes, as part of the information-sharing under the provisions for the maintenance of the database that we discussed earlier.
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Lord Elton: Does it begin to occur to the noble Lord that there may be some sense in believing that a non-criminalising process might be better?
Lord Adonis: It all seems perfectly straightforward to me.
5.45 pm
Lord Lucas: I should like to come back to my question. Clause 22 requires the local education authority to be satisfied that the employer has contravened Clause 21. The noble Lord has said that it may have pretty strong circumstantial evidence that a young person is employed by a particular employer. It is also possible that it may have evidence that that person is employed for more than 20 hours a week. That would take some fairly high-grade snooping, I should have thought, or a statement by the employee that is entirely against his own interests, which seems a strange thing to ask a young person to do. That fact of employment is not the duty under Clause 21, which is to ascertain that proper education or training is taking place. How on earth can the local authority obtain any evidence as to what process an employer has gone through? It can act only on supposition, and how can supposition ever be enough to satisfy the exact terms of Clause 22(1)?
Lord Adonis: I am not sure I understand the noble Lord. The local authority has to satisfy itself that it is acting reasonably before it issues such a notice. If it was not acting reasonably, an employer would have redress through the courts.
Lord Lucas: Well, yes, there is always judicial review, if you are a flush enough employer and have 50,000 quid to spare. To be satisfied is a legal term of art. To be satisfied, looking at things internally, you have to have evidence that something is the case. You can have evidence that somebody is employed; it is marginally possible to have evidence that someone is employed for more than 20 hours a week, although I cannot see that that will often be the case. But I do not see how you can ever have evidence that employers have not performed the checks that they are required to perform under Clause 21(1), which is the duty that they are under. Employers will never provide any material and who else, other than employers, knows whether they have performed the checks?
Lord Adonis: The perfectly obvious form of such evidence would be from the young people themselves who would tell Connexions or the local authority.
Lord Lucas: So the only source of evidence against an employer would be an employee grassing him up. Since the employer is providing the young person with a job that they presumably want and enjoy, this seems pretty unlikely.
Lord Adonis: I do not know that it is that unlikely if Connexions is doing its job properly in seeking to ascertain the post-year-11 destinations of young people.
Lord Lucas: It might know or believe that the young person is there or that that is where he intended to go, but that is not the duty referred to in Clause 22(1). The duty, which refers back to Clause 21(1), is to make proper checks. Employees cannot really know what
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Baroness Howe of Idlicote: All the uncertainty and bewilderment around these clauses emphasise the importance of the wish of the CBI for an assurance that employers will not face a financial penalty if they have acted in good faith. That needs to be written into the Bill so that we do not get into the muddle we appear to be in now.
Lord Lucas: Perhaps I may also ask a question that I kept forgetting to put to the Minister in the excitement of our previous conversations. The system for inflicting a penalty has no independent appeal to it. The local authority is judge, jury and executioner in its own cause. Does this pattern have a precedent? It appears that no form of tribunal is available to an employer in front of which it might make a case. Even the poor old motorist gets a hearing of some sort.
Lord Adonis: I am informed that the jurisdiction in question is with the county court, so if an employer wished to contest a decision it would not have to go all the way to a judicial review. However, one assumes that the employer would make representations to the local authority in the event that it was unhappy with the action proposed.
Lord Lucas: I have been through that myself on parking tickets. It is a pretty uncertain process where results are concern.
Baroness Verma: I think that the Minister recognises the absolute mayhem this area has created. There is so much uncertainty about it. A couple of days ago I tried to be helpful to the Minister by asking him to look at the pro forma that colleges and training centres are supposed to provide. Perhaps all the questions that have been raised in Committee today could be addressed on that form so that we know which local authority and which training college or institution will make the provision, so that the employer has the evidence in his hands and does not face the difficulty of having to prove that he is not satisfied with the fact that the young person has gone to the institution or training centre to receive the training required under the Bill.
Lord Adonis: I confirm again that I said in response to the debate initiated by the noble Baroness, Lady Garden, on this precise issue that we will work to ensure standard pro formas which I believe will cover the generality of the case. I do not believe that there is anything like the confusion referred to by the noble
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Baroness Verma: It should not be a standard pro forma, because it would not address the question of which local authority and which training organisation was involved. It would have to specify the training provided.
Lord Adonis: By “standard” I did not mean that it would say the same thing on every form, but that it would be in a standard format, which of course would need to set out the relevant information, which would vary with each student.
Baroness Sharp of Guildford: This debate probably indicates that a wise local authority, since it has discretion over whether to bring in enforcement action, would not do so because it would open such a can of worms that it really would not be worth pursuing. The Minister might ponder on these issues because it seems that the contortions and difficulties raised by these clauses are hardly worth it. From that point of view, perhaps the Government need to think seriously about whether there is a simpler way of ensuring that employers allow young people the right amount of time off the job for their education and training.
The Minister said that Clause 25 applies only after the young person is in employment. My understanding of the Bill is that the duty lies upon the young person to fix up their education and training for themselves. They may go into a job where training is supplied by the employer—obviously this applies in apprenticeships—but, in so far as the employer does not provide training, it is the duty of the young person to fix up for himself the requisite amount. Therefore, if a young person comes into employment, under Clause 21(2)(b),
- “the employer must not permit the employment to commence, at a time when the employee is a person to whom this Part applies—
that is, a person who has fixed up some training—
- “without being satisfied, having taken all such steps as are reasonable to ascertain, that the employee has made appropriate arrangements for training or education”.
The young person concerned may well say, “I have fixed up to go to the college on such and such days”, and then these arrangements somehow fall through. I take it that that is when Clause 25 kicks in and there are let-outs for the employer. Very often the employer may not know precisely what the arrangements are until after the young person concerned has entered into employment. Perhaps the Minister would like to ponder on this and come back on it.
Lord Adonis: I return to the point raised by the noble Lord, Lord Lucas, about the rights of employers to appeal against any enforcement action taken. That
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The noble Lord, Lord Goodlad, wrote to the department on this issue in his capacity as chairman of the Select Committee on the Constitution. I replied to him on 1 July and said that, in the light of his comments on that specific issue:
“I will certainly consider carefully whether there is more we need to do to strengthen the provisions in this area, to make clearer that employers will be able to challenge decisions and local authorities will be able to review the process and that there is a satisfactory appeal route. If necessary I will table government amendments at the next stage in Parliament’s consideration of the Bill to effect changes”.
The specific issue of appeal underlies many of the related issues because, if there is a satisfactory appeal process, it will give greater confidence that local authorities are acting on a sound evidence base. I will come back on the issue later and I hope that that will allay other concerns that have been raised on this group of amendments.
Lord Elton: As we are on Clause 25, I ask what the significance is of subsection (5). It states:
“Such a notice need not be given in writing but, if it is not, the employer may, on the occasion when the notice is given, require it to be given in writing”—
- “and, if the employer does so, the notice is not to be treated as having been given until given in writing”.
That suggests that it is perfectly in order for him not to ask for it in writing and, if he does not ask for it in writing, it will be accepted as having been given when it was given verbally.
That places a very odd legal interpretation on the evidence of the word of the employee. Will the employer have to give evidence as to why he trusted the word of the employee without asking to have it given in writing? If the employee is tardy in giving it in writing, should the employer suspend the employment in order not to be in breach of his duties under Clause 22 by employing him when he has no assurance that the arrangements the notice refers to have been made?
6 pm
Lord Adonis: The employer must then reach a reasonable decision as set out in subsections (2) and (3):
“The employer must, so far as is reasonable having regard to the matters mentioned in subsection (3), permit the person to participate ... Those matters are ... the needs of the person in order to fulfil the duty imposed by section 2 ... the circumstances of the employer’s business ... the effect of the person’s absence from work on the running of that business”.
The employer must act so far as is reasonable, whether the notice is given in writing or orally. It is not affected either way.
Baroness Verma: If there is no physical evidence, how will it stand up in court?
Lord Adonis: There would have to be evidence for a notice to be issued. The point about the appeal, which the noble Lord, Lord Lucas, raised, is that this would enable a much easier form of testing of that evidence
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As I said in response, it might have been helpful if I had copied my letter to the noble Lord, Lord Goodlad, to Members of the Committee. I copy almost everything that I send to Committee Members. I will circulate that letter because it deals with precisely this point in response to the concerns of the Select Committee on the Constitution on the specific point about employers having adequate redress where they believe a local authority is acting unreasonably.
Lord Elton: For the purposes of our procedures, as the effect of Clause 25(5) has now been discussed, I would like to consider between now and Report whether that is something that we should speak to.
Baroness Sharp of Guildford: We have touched on many issues regarding these clauses. There are still many unanswered questions, but we have had enough time and it is appropriate that at this point I should beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 116 not moved.]
Clause 25 [Duty to enable participation: arrangements subsequently notified]:
[Amendment No. 116A not moved.]
Clause 27 [Contravention of section 24 or 25: enforcement notice]:
[Amendment No. 116B not moved.]
[Amendment No. 117 not moved.]
Clause 34 [Parenting contracts]:
Baroness Morris of Bolton moved Amendment No. 118:
“( ) Prior to entering into a parenting contract, the local education authority shall ensure that parents’ needs are assessed by the appropriate local authority adult services.”
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