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As the noble Lord, Lord Thomas of Gresford, said, the orders appear to give considerable additional powers to the police. It concerns me that the necessary monitoring is not there to ensure that the provisions are applied in a consistent and just manner to those involved. I look forward to the Minister's response.

Lord Bach: My Lords, I am grateful to the noble Lords who have spoken in this short debate. Our starting point is that the law-abiding majority want to see crimes, no matter how small, dealt with effectively and efficiently, and for a long time cautions have been part of that process. They allow the police to deal swiftly with low-level offending, freeing them up to spend more time on the front line and dedicate more time to more serious offences. They also free up court time for more serious offences.

We believe that conditional cautions can have a positive effect in addressing the reasons behind some offences, perhaps particularly anti-social behaviour. The use of rehabilitative conditions, such as attending an alcohol awareness course, combined with a financial penalty, can help to tackle some of the root causes of the crime as well as delivering a fitting penalty. The Criminal Justice Act places no restrictions on the types of offences for which conditional cautions may be administered but we have made it clear, as has the Director of Public Prosecutions in his guidance, that they should be used only for low-level offending. Indeed, his guidance restricts their use to summary and certain either-way offences. A conditional caution cannot be administered for indictable-only offences, hate crimes, offences involving domestic violence and-here I am replying to the noble Baroness-offences using knives or offensive weapons. Youth conditional cautions put in place rigorous conditions to address bad behaviour while ensuring that the person admits his wrongdoing and makes amends to the local community by repairing damage that may have been caused, paying compensation or having restrictions placed on his movements.

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The noble Baroness spoke about a broken society and crime generally. I am sure that I do not have to remind her and the House that, for the first time in living memory and beyond, this is the first Government to have presided over a considerable fall in the number of crimes that have been committed. That is a proud record and contrasts clearly with the record of the previous Government.

Before coming on to financial penalties, perhaps I may say that the point about youth cautions-this is something that I should have thought would be generally approved of across the House-is that they keep young people away from being prosecuted. However, you cannot keep young people away from being prosecuted for ever, and there is, as noble Lords will know, a hierarchy in youth offending. The reasons for our approach of saying that you could not get a conditional caution if you were a youth who already had a conviction were explained fully when the Bill was debated. The short answer is that there are various out-of-court disposals for a young person. There is a reprimand or a warning and a youth restorative disposal, which are not available for adults. The system is essentially hierarchical. Once the matter is so serious that a young person is convicted before a court, the other, less serious out-of-court disposals should, in our view, no longer be used. Such a system does not apply to adults.

A criticism has been made by the noble Lord, Lord Thomas of Gresford, that the new financial penalty, which will be piloted rather than brought in across the country, is somehow a step too far for prosecutors to be able to award. There has been no youth conditional caution until now, but for adults that same prosecutor has been able to make rehabilitative orders, which is something that the court would normally do, or reparative orders, which in some ways are punitive, such as payments of compensation, letters of apology, reparative unpaid work, restorative justice, and so on. All those matters are under the original conditional caution that the noble Lord said his party supported in the 2003 Bill. The prosecution is able to impose them, as it were, on someone prepared to accept a conditional caution. The noble Lord's party was happy that the prosecutor should do that. It seems that the point beyond which it is not happy is when there is a financial penalty as well. Any defendant can refuse to be cautioned and can ask for his or her day in court. They are entitled to do that, which is an essential safeguard under our system.

There is a limited discretion to set levels of financial penalties. They can be set at either a standard or mitigated level. I have already referred to the point about knives. Conditional cautions are paid or prosecution will follow. Penalty notices have issues with payment. Means are taken into account unlike what happens when there is a penalty notice in its stead.

There are virtues in having conditional cautions as they prevent young people being prosecuted for offences. We do not want them to be prosecuted unless it is necessary. The youth conditional caution is not a new power of summary punishment, representing a fundamental constitutional change. We know that the police already issue fixed-penalty notices and other

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on-the-spot fines to offenders either on the street or at the police station. Others who accept these notices have to pay the set amounts required and are automatically diverted from prosecution in the courts when they do so. This is a logical extension of powers that already exist and which work pretty well.

Of course, there will be many cases that can be dealt with only by the courts and, as I have said, the offender always retains the option to be prosecuted by the court rather than accept a caution. We believe that adult conditional cautions have worked pretty well so far. Parliament was happy that a youth conditional caution was one of the arrows that could be used to try to divert young people away from further crime. On that basis, I invite the House to accept these statutory instruments.

Lord Thomas of Gresford: The Minister has not referred to the monitoring that was mentioned by the noble Earl, nor has he referred to publicity. There is a public element to this. These conditional cautions will be issued by the prosecutor without any element of publicity, which is possibly one of their attractions, as opposed to going to court. Does the Minister think that anything can be done in that regard?

Lord Bach: I do not think that it is possible to do anything in terms of young people, and I am not sure that the noble Earl would want that. We are prevented from naming the young person involved. All we can say is that "a young person" received a youth conditional caution, which would not assist anyone. For adults, I suppose that it would be possible to publish the names of people who had not been prosecuted but who were subject to a conditional caution. I understand that they would be rehabilitated within three months of that caution in any event. Again, I suppose that it would be possible, in theory at least, for such a caution to be mentioned in a local newspaper, but I am not sure that that is what we want.

Lord Thomas of Gresford: I am concerned not so much with publicity but more with monitoring to ensure that there is some parity in their use across the country. That issue was raised by the Magistrates' Association in its letter.

Lord Bach: I understand that point. There should be parity in how these cautions are implemented and there is no reason to believe that there is not. There are strict conditions on what can be awarded, in terms of financial penalty at least, against someone who is subject to a conditional caution. I think the noble Lord is asking whether some areas use these rather more than others. I do not have information but will write to all those who have spoken in the debate if I can get some further information on these issues.

Baroness Seccombe: With regard to the release of the latest offender management statistics, is there a problem? Can the Minister give us any further information today?

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Lord Bach: I am sorry not to have replied to the noble Baroness earlier on that point. I do not know whether there is a problem, and neither do my officials. In the letter that I will be writing, I shall try to give the latest information. I beg to move.

Motion agreed.

Criminal Justice Act 2003 (Conditional Cautions, Code of Practice) Order 2009

Copy of the Order
21 Report from the JCSI

Motion to Approve

2.04 pm

Moved By Lord Bach

Motion agreed.

2.05 pm

Sitting suspended.

Apprenticeships, Skills, Children and Learning Bill

Committee (8th Day) (Continued)

2.33 pm

Schedule 8 : Sixth form college sector

Amendment 215A had been withdrawn from the Marshalled List.

Amendment 216

Moved by Lord De Mauley

216: Schedule 8, page 188, line 23, leave out "five" and insert "two"

Lord De Mauley: My Lords, Amendments 216 and 218 are derived from concerns raised by the Association of Colleges in relation to Part 6, which gives separate legal status to the 93 sixth-form colleges and places them under the control of the DCSF. Those concerns arise from the fact that the clause will require sixth-form colleges to have a closer relationship with their local authorities than is proposed for other colleges.

Perhaps your Lordships will forgive me if I deal with Amendment 218 before Amendment 216. Amendment 218 would mean that the responsible local education authority could use its proposed power to appoint a member to a governing body of a sixth-form college after,

We believe that that would allow sixth-form colleges to retain the independence and autonomy that have been integral to their success. We are concerned that, without that provision, sixth-form colleges may be

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encouraged to become overly centred on the needs of the local authority and the so-called home centre. We suggest that that would be damaging, because part of the success of sixth-form colleges is due to their ability to recruit across local authority boundaries and become centres of excellence. Although the Bill does not prevent that, we are concerned that too many ties to the local authority may result in the sixth-form college becoming home-centric and reduce its freedom and desire to recruit from further afield.

Amendment 216 is in the same vein of flexibility. New Section 33D(3) in Schedule 8 means that an application to convert a sixth-form college corporation into a further education corporation cannot be made by the governing body of the relevant body for a period of five years after the body has been declared a sixth-form college corporation. Does the Minister agree that that is somewhat restrictive? Does she not agree with the assessment of the Association of Colleges that a period of two years might be more suitable? We suggest that that would allow much more flexibility, which is especially important given that much of the reason behind the success of those institutions is their ability to innovate, adapt and utilise the flexibility that their independence gives them. We think that it is important to nurture those traits, which help to develop centres of excellence, not constrain them. I beg to move.

Baroness Garden of Frognal: My Lords, we have some reservations about Amendment 216. We recognise that a sixth-form corporation, as specified in new Section 33E, may have much the same provision as an FE college, so in many cases the conversion may be straightforward. However, two years is a very short time in the life of an academic establishment to test the market and to prepare for and implement organisational and institutional changes. Five years seems a reasonable timescale. As for the governors, one would hope that there would be consultation in every case between the governing board and the LEA. The LEA is proposing to appoint only one person to the board, so we agree that consultation would be desirable, but the Bill could stand as it is drafted.

The Parliamentary Under-Secretary of State, Department for Children, Schools and Families (Baroness Morgan of Drefelin): My Lords, I start my brief remarks by saying that we would like to consider Amendment 218 and to accept Amendment 216, so that those who need to prepare can do so. I am grateful for the interest of the noble Lord, Lord De Mauley, in the issue and am pleased to see that there is agreement around the House, taking into account our discussions earlier in Committee, about the strong and distinctive contribution that our sixth-form colleges make in this country. This is a great opportunity for us to put on record the tremendous work that they do.

The scrutiny that the amendments have prompted has been extremely valuable in challenging some of our initial assumptions. As we have heard, Amendment 218 would amend new Section 56F, which will give local authorities the power to appoint one or two additional governors to the governing body of a sixth-form college. That is a power that the Learning and Skills Council currently holds. It has used the

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powers to appoint 51 governors to 33 further education colleges-but always, importantly, as the noble Baroness, Lady Garden, commented, with the agreement of the institution. I recognise the importance of consultation, especially in such an important matter, so I am happy to reflect further on whether a local authority should be required to consult the governing body of a sixth-form college before making an appointment and will return to that on Report.

As I said, I am also happy to accept Amendment 216, which will reduce the number of years before redesignation can occur from five to two. In response to the noble Baroness, Lady Garden, the point is that redesignation can occur after two years; it does not mean that it must. I note her comments about the need for experience to bed in before a college makes a decision, but it is an interesting proposition to have a two-year rather than a five-year limit. Still, we maintain that the designation process should not destabilise the college sector.

This short debate has been helpful and important. We know that the sixth-form colleges are broadly supportive of the new arrangements. They believe that giving local authorities, which are primarily responsible for the strategic direction of schools, a major responsibility for the strategic direction of colleges will promote coherence. That view has been voiced by the Sixth Form Colleges' Forum. With that, I am optimistic that noble Lords will accept my approach.

Lord De Mauley: My Lords, I thank the noble Baroness, Lady Garden, for her contribution. Noble Lords will be unsurprised to hear that I am even more grateful to the Minister for her gracious words in accepting Amendment 216 and for saying that she will think further about Amendment 218. We look forward to what she comes up with on Report.

Amendment 216 agreed.

Amendment 217

Moved by Baroness Howe of Idlicote

217: Schedule 8, page 195, line 19, leave out paragraph 8

Baroness Howe of Idlicote: My Lords, paragraph 8 of Schedule 8 is five pages long so, if it were removed, it might reduce the Bill a bit. It sets out new powers for local authorities and the Young People's Learning Agency to enable them to intervene in the business of a sixth-form college when it is judged to be failing. This probing amendment would remove all the intervention powers for the YPLA and local authorities.

The Association of Colleges, which represents sixth-form colleges, points out that they are among the most successful institutions within the education sector; the Minister underlined that in her answer in the debate on the previous amendment. Sixth-form colleges produce excellent exam results, often for the most deprived young people and in the most disadvantaged areas. This is demonstrated by the fact that, between October 2006 and January 2009, 81 per cent of the 80 sixth-form colleges inspected by Ofsted received an outstanding or good grade.

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Sixth-form colleges therefore have a proven record of high performance, so it is, one hopes, extremely unlikely that any sixth-form college will fall victim to the circumstances listed in subsection (2) of proposed new Section 56E of the Further and Higher Education Act 1992. New Section 56E(2)(d) states that a local authority may intervene if,

This wording reflects the wording that will apply to the Skills Funding Agency's intervention powers in relation to further education colleges. It would therefore be useful if the Minister could clarify whether the SFA and local authorities are using identical criteria when they determine whether to intervene. How will these criteria relate to those that may be used when local authorities assess the performance of school sixth forms? All three types of institutions will be educating the same age group, so it seems fair that they should be judged on the same basis before the relatively serious step of intervening in the affairs of an autonomous institution is taken.

As I understand it, when intervening, local authorities will be able to remove all or any of the members of the governing body, appoint new members and give directions to the governing body. New Section 56H also allows the Young People's Learning Agency the opportunity to intervene in the business of sixth-form colleges and take the same steps. It would be useful if the Minister could clarify when she envisages it would be appropriate for a local authority to intervene and when the YPLA should intervene. If she could produce some illustrations of the sorts of situations that might produce that, it would be helpful. I beg to move.

2.45 pm

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): I should inform the Committee that, if this amendment is agreed to, I cannot call Amendment 218 by reason of pre-emption.

Lord De Mauley: My Lords, it will come as no surprise to the Minister that we share the concerns of the noble Baroness, Lady Howe, about the intervention powers of LEAs and the YPLA in sixth-form colleges. Of course we agree that action must be taken should a sixth-form college's governing body be responsible for unreasonable action or mismanagement of its affairs. Nevertheless, like the noble Baroness, Lady Howe, our concern is that sixth-form colleges should be allowed to be flexible and independent.

The Association of Colleges has stated that it thinks it imperative for sixth-form colleges to,

Does the Minister not accept that the powers of intervention by the LEA and the YPLA may operate to reduce the flexibility and independence of sixth-form colleges? As I said on the previous group of amendments, it is important to ensure that the possible influence of the LEA and/or the YPLA must not mean that sixth-form colleges become overly centred on their immediate

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locality. Part of the reason for the success of these colleges is that they can attract students from far and wide across the boundaries of the LEA. Given that resources are finite, we share the colleges' concern that the powers awarded to the LEA by the Bill may lead to sixth-form colleges becoming more limited in their scope and therefore reduce the level of specialisation that has helped to make them such a success.

Paragraph 8 of Schedule 8 appears effectively to give LEAs the authority to manage the performance of sixth-form colleges and, therefore, interfere when they consider necessary. Further powers of intervention are awarded to the YPLA and, additionally, LEAs and the YPLA are given the right to appoint members to thegoverning body of a sixth-form college. It would appear that the intention is to confine independent sixth-form colleges quite strictly within the remit of the local authority. I appreciate that there are limitations-for example, the LEA must give notice to the Secretary of State and the YPLA before exercising its powers of intervention-but I hope that the Minister appreciates the concern of the Association of Colleges that the specifics of these powers have yet to be laid out in any detail. I hope very much that she will be able to inform your Lordships exactly how these powers will work and offer reassurance that this will not infringe the independence of sixth-form colleges, which we should be helping to support, rather than limit.

Lord Campbell of Alloway: My Lords, having heard what has been said, I support my noble friend on the Front Bench. Education is not my main subject in the House, but having listened to the debate I believe that independence for colleges-Oxford or Cambridge or any of them, although I admit that I happened to be at Cambridge-is crucial. That is the point that my noble friend is making. I do not know anything about education, but it seems terrible that the independence of the universities should be put at risk.

Lord Lucas: My Lords, my main quarrel is with the wording of new Section 56E(2), which is the test that must be passed before a local authority can intervene. The level has been set quite extraordinarily low. For instance, paragraph (b) states,

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