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Hamwee, B.
Hanham, B.
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James of Blackheath, L.
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Jenkin of Roding, L.
Jolly, B.

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Jones of Cheltenham, L.
King of Bridgwater, L.
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Knight of Collingtree, B.
Kramer, B.
Laming, L.
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Lindsay, E.
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Mar and Kellie, E.
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Marland, L.
Marlesford, L.
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Mawhinney, L.
Mayhew of Twysden, L.
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Williamson of Horton, L.
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6.03 pm

Clause 40 : School inspections: matters to be covered in Chief Inspector's report

Amendment 76A

Moved by Lord Northbourne

76A: Clause 40, page 36, line 39, at end insert-

"( ) in the case of any school taking in children at compulsory school age, the extent to which such pupils are emotionally, socially and cognitively "school ready" when they join the school;"

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Lord Northbourne: My Lords, this relatively modest amendment contains an important principle. It is on that basis that I shall take the time of the House to introduce it. This Bill makes major structural changes to our school system which I support. We need to recognise, however, that for many schools the burden of responsibility for delivering satisfactory educational outcomes will change. Many primary and secondary schools will themselves have to justify their success or failure much more clearly. They will have less opportunity to have the comfort of being able to pass the buck to the local authority. Education and well-being in the early years foundation stage will still remain wholly the responsibility of the local authority. So there will be an educational interface between the local authority and schools when the child reaches the age of five. My amendment is designed to draw attention to the possibility of friction-or, indeed, of unfairness-at that interface.

The amendment would ensure that there will be an objective assessment of school readiness of children as they enter their primary school-whatever kind of school that may be. This assessment could be used to estimate the extent to which any poor outcomes in any particular school arise from the school being overloaded with children who, when they joined the school, were not school-ready and thereby deflecting resources to remedial work when those resources should have been available for teaching.

The criterion for a successful school is to add value to the child's education. We need to be able to identify which institutions are failing to deliver the appropriate amount of added value: is it the schools or is it the early year settings? If we want to achieve this Government's objectives-and I think we probably all believe in them-to improve school outcomes and reduce inequality in our society, it is important that children arrive in school with their foot on the first rung of the educational ladder to be socially, emotionally and cognitively ready to settle in and to learn. Today, alas, we still have far too many children who are not school-ready at the age of five.

I thank the Minister and his department for the help that they have given to me and for the information about the current situation as regards inspection at age five. I have to say that much more is being done than I was aware of when I set down this amendment. Most children are being assessed for progress towards completing the early years foundation stage of the curriculum and those assessments are available to the public.

I do, however, have two serious concerns. The assessments are being made by the providers of the early years foundation services that the child is receiving. They are, therefore, far from impartial. If we are to have a fair assessment of the added value that a school or an early years setting is delivering, the starting point as well as the outcome must be assessed impartially. My second concern is that a small but significant minority of young children today are still not participating in the early years foundation stage programme. This is often because their parents do not want to make contact with the authorities because they are afraid of having their children taken away. Yet these are often the most disadvantaged children of all-often from

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families designated as hard to reach. They therefore tend to be the children who need most remedial help when they get to school. They are therefore heavy users of school resources. They are the most likely to fail in school, yet they are not taken into consideration in the assessment of the intake of the school.

Is the Minister prepared to give an undertaking that the arrangements for checking each child's school readiness when they join a primary school at five years old will be improved so as to be impartial and include all children joining the school, not just those who have been following the early years foundation stage programme? It would also be comforting if the Minister could confirm that, just as schools may be criticised if they do not give their pupils the educational added value they need, some way will be found to chase up recalcitrant local authorities which are failing to help those children most in need. I beg to move.

The Lord Speaker (Baroness D'Souza): My Lords, I understand that there has been agreement that Amendment 76A shall be grouped with Amendments 77, 78 and 79.

Baroness Walmsley: My Lords, I have Amendment 77 in this group. Before speaking to it, perhaps I may say how right the noble Lord, Lord Northbourne, is to emphasise the importance of the concept of "school ready", which was referred to a number of times by Graham Allen in his important report about early intervention. The noble Lord is also right to point out that some parents will take advantage for their children of the early years provision that the Government make available to them, but others will not. That is why it is very important that their stage of development is properly and professionally assessed as early as possible so that schools can help to bring them on if necessary.

My amendment is very simple. It merely adds the words "and well-being" in the Ofsted framework as laid down in Clause 40. I would prefer to see them in the Bill, but my right honourable friend Michael Gove has assured me, and assured other noble Lords in the letter to the noble Baroness, Lady Hughes, dated 14 October, that he expects Ofsted to inspect children's well-being and accepts the link between children's well-being and their achievement in their school subjects and learning. He has also assured us that Ofsted will use its programme of subject and thematic surveys to look in detail at specific aspects of pupils' personal development. That will certainly pick up issues where children's well-being is not as it should be, perhaps where equalities issues are not as they should be because, of course, children cannot have well-being if they feel discriminated against. I have tabled my amendment in the hope that it will give the Minister the opportunity to confirm those things.

Baroness Benjamin: My Lords, I thank the Minister for the letter dated 14 October that he sent to the noble Baroness, Lady Hughes, in which he gave assurances that Ofsted's inspections will consider how well schools provide the well-being of those to whom equalities issues apply and that equalities issues will underpin the whole approach to inspection and will include all protected groups under the Equality Act 2010. It is

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also good to learn that Ofsted will consider how well gaps are narrowing between the performance of different groups of pupils both in the school and nationally because, as we all know, the gap in social mobility is growing wider among certain groups. It is important that schools are judged on the quality of their teaching, which should cater for the range of needs to help all pupils to progress and to inspire them to have high aspirations in a fair and equal way and, as the Minister said in his letter, free from bullying and harassment because of their culture or background, from which so many children in our schools suffer. I am delighted that these issues are being addressed and that the well-being of all children is being taken into consideration.

How can we make sure that equality issues are delivered in schools day in, day out? What measures will be put in place if schools do not comply with these ideals? I ask these questions because just today I received an e-mail from a supply teacher with a complaint from children who feel that their equality issues have been violated in a school during a lesson. They have asked me for help and guidance, so I would like the Minister to help me with my guidance. I will be interested to hear his answer to this question.

Baroness Flather: My Lords, I shall speak to my Amendment 78, which is in this group. It is a very simple amendment to put community cohesion back on the list of items Ofsted will inspect. When I learnt that it had been taken out, I was very perturbed because if schools have responsibility for community cohesion, as I have been told, I believe that it is necessary for Ofsted to look at what they are doing for it. I think that this is more than ever an extremely important area for schools to concentrate on. It is about not racism or equality; it is about the community in which they live and being part of that.

6.15 pm

Now that we have more faith schools not of the faiths that we were used to, free schools and academies, it is more important than ever to have community cohesion in the list for inspection. Without community cohesion, young people will not understand what it is to live in a community. If somebody wishes to ask, "What is community cohesion?", Ofsted has a very good checklist of the issues under that heading. We should not deprive schools or the community of this inspection, or stop children learning about and understanding their own and other communities.

Lord Quirk: My Lords, I rise to speak to Amendment 79. Clause 40 requires the chief inspector to consider a familiar quartet: the spiritual, moral, social and cultural development of pupils. Amendment 79 would insert the word "linguistic". In other words, we would wish the chief inspector to focus upon the child's unique and very precious language faculty, and properly so, because language proficiency is not only essential for the other desiderata in Clause 40, for example social and cultural development, but, more widely, it is a precondition for the whole of education itself.

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Many thousands of our children start school linguistically impoverished and hence cognitively impaired. The numbers extend far beyond the unfortunates with pathological problems that require serious intervention by speech and language therapy. These are a tiny unfortunate minority compared with the far greater unfortunates who by reason of family dysfunction or social circumstance have little experience of parental or sibling chatter let alone bedtime stories. They have been denied the rich linguistic exposure that more fortunate children can happily take for granted.

The language faculty depends crucially upon early intervention. Language development is something that has to happen as early as possible, pre-school preferably, as we have just heard in relation to Amendment 76A, moved by my noble friend Lord Northbourne, and as we did on his very first amendment, last week, when the elegant intervention by the noble Lord, Lord Peston, was especially memorable. If serious linguistic deficiency cannot be spotted before school, and if it cannot be spotted at least in the first few terms of primary school, then the consequences are disastrous.

None of this is controversial, and it is indeed in line with Her Majesty's Government's policy. What we are talking about is language development that merely leads to the confident, competent command of English. Surely that is not a lot to ask of an English education, but at present we fall very far short of it. Employers are on record as preferring teenage recruits who learnt their English in Poland, Russia or China, because it is easier for everyone to understand their less sloppy diction and to read their better-formed sentences and clearer handwriting. We could go further. Without giving pupils a sound basis in English, how can we attract far more to go on and learn Spanish, German, even Mandarin? As noble Lords will know, one of the proposers of this amendment, the noble Baroness, Lady Coussins, chairs the all-party group on foreign languages.

Among possible objections to our amendment, let me just mention two. First, adding the word "linguistic" may invite further additions-"mathematical", for example. But language is different, and is genuinely unique. It is the precondition of all else, from the rules of maths to the rules of football. Secondly, it may be objected that the addition of "linguistic" creates a tautology, since it is implicit in "social" and "cultural". We would disagree. Doubtless some degree of social and cultural development need not depend upon language-even, perhaps, enough for inspectorial hurried box-ticking. But inspectors must in our view be required to pause and address language development as an area requiring their separate and specific consideration. Indeed, so far from being superfluous, we would argue that the omission of the word "linguistic" from the clause should be seen as a glaring oversight, so much do its neighbours "social" and "cultural" depend on it as the faculty by which all other development is both inculcated and expressed.

This brings me to a further and final point in urging this amendment. Clause 40, to repeat, requires that the chief inspector "must consider" how pupils are developing in four different respects:

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This is a quartet, of course, that is quite familiar in Ofsted-speak. It has been on Ofsted's agenda for some time. Perhaps the Minister can give us some indication of the success that inspectors have had in grading children according to their development in these four respects. What does the Minister expect the inspector actually to do before ticking, say, the "spiritual" box, thus declaring his satisfaction at the pupil's spiritual development? Then, when he moves on to the box labelled "moral", what does he actually do before ticking that all is well with their moral development?

Now, if the next box were labelled "linguistic", I know-and, more importantly, I know the inspector would know-how a professional assessment in this crucial area would be made. I would have confidence in what a tick meant and know that actual, speedy attention would be given if a tick were withheld.

My point is obvious. Not only is successful development of the language faculty essential for progress in all else that education has to offer, but linguistic development is observable, quantifiable and objectively assessable to a degree that makes the inspectorate's judgment of critical value.

Baroness Warnock: My Lords, I very strongly support the amendment of the noble Lord, Lord Northbourne, as well as the amendment just spoken to by my noble friend Lord Quirk.

Linguistic deprivation is just as serious as any other form of deprivation that a child can suffer. An enormous amount of linguistic knowledge, practice and efficiency is learnt before the age of two or two and a half years. There are a vast number of children whose parents-or whose single parent, very often-are quite unable to supply the kind of stimulus that children essentially need, and from the deprivation of which they really cannot catch up. How can children start learning to read when they hardly have any vocabulary in the language they are supposed to be reading? It seems to me that before school is the crucial time, but as we have heard the most difficult and most needy children are very likely those who do not take advantage of pre-school provision.

Here I must repeat something that I have said a million times before, which is that I believe that the BBC has a huge responsibility for those children who are at home before school, and are not getting out of their home. The BBC should be providing radio programmes with songs and stories which supply what children's parents very often cannot supply, namely constant exposure to language. I was also delighted when a noble Lord-I am afraid I cannot remember which-said at an earlier stage that one of the worst things that has ever been invented is the pushchair which faces away from the parent, so that the parent who is pushing the child cannot speak continuously to the child even before the child has any language to respond in.

I think that this is of enormous importance, and should be in the Bill, more so than all the stuff about spirituality and morality. I entirely agree that that can all go, because we cannot measure it anyway. What cannot go is what can be measured, which is the vocabulary of a child and his ability to communicate and respond to other people talking and singing to him.

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Baroness O'Neill of Bengarve: My Lords, I strongly endorse these thoughts. We should not set the inspectorate the task of doing the grand and unachievable rather than the humble and achievable. Language delay is a catastrophe for a child. It is all too common. I am not talking about specific language impairments: they are very serious matters, but that is quite a separate issue. Profound language delay is disabling not just at the early pre-school or reception stage, when it can be picked up, but right through a child's education. Although it is important for children to have moral, spiritual, cultural and social development, without what my noble friend Lord Hennessy has called the chit-chat amendment it is going to be difficult to achieve development in those other areas.

Lord Alton of Liverpool: My Lords, I intend to support my noble friend Lady Flather, but before so doing I would like to support the remarks made my noble friends Lord Quirk and Lord Northbourne. My wife is a speech and language therapist who works with autistic children. Although they fall into the special category that my noble friend Lady O'Neill has just referred to, my wife would emphasise-and I would too, from my own background working in education-that the noble Baroness, Lady Warnock, is right: it is a catastrophe if a child does not have language in place. Earlier today, there was a Question during Question Time about restorative justice. Anyone who goes into any prison and meets some of those who are now in prison because of their participation in the riots earlier this year will know that there is a link with language deficiency and with literacy as well. If we are ever going to get these things right, we will have to spend a lot more time and energy on language, literacy and the early years development that my noble friend Lord Northbourne has made a personal crusade for so long.

I particularly want to speak in favour of the amendment tabled by the noble Baroness, Lady Flather. My reason for doing so is that I drafted the original amendment on community cohesion which was incorporated in the previous education Bill. My noble friend Lord Sutherland and my noble friend the late Lord Dearing were other signatories. We took the amendment to the Government. I personally went to see the noble Lord, Lord Adonis, and I was very pleased when he accepted the amendment, which included that this matter should be inspected by Ofsted. That was put forward 24 hours later, in place of the amendment which we had drafted, as a government amendment, and was accepted in the legislation. I think that the House took the right decision, because it was not singling out one category of schools and saying that they may be a problem with community cohesion; it was saying that all schools have to promote community cohesion. However, that has to be measured, and it is right that it should be measured by Ofsted.

I find it extraordinary that this is being removed at this stage from the legislation. I therefore hope that the Minister can give an undertaking that it will be reviewed. This is too important a question just to leave to one side. That amendment was passed because of concerns that people raised about specific schools where there might be ideological or narrow agendas, and it was to ensure that such things did not happen that this was included in the legislation.

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6.30 pm

The Lord Bishop of Ripon and Leeds: My Lords, first, I agree with the noble Baroness, Lady Walmsley, in preferring to have well-being specifically in the Bill in addition to achievement. That would be a much more balanced and appropriate way to look at the whole task of Ofsted and what we are looking for in the Bill. Indeed, it might help some of the other contributions made to this debate in terms of the well-being of a child, which would include their linguistic ability and development. But if the noble Baroness is convinced by the Minister's letter, who am I to dispute that?

My main reason for contributing is to say that I hope that the noble Baroness, Lady Flather, will push Amendment 78 on community cohesion. For many of the reasons put forward by the noble Lord, Lord Alton, this seems to be a key to the whole life and work of our schools, which should be in any Ofsted inspection. One of my tasks which I find most fulfilling and of most value is to be the vice-chair of Leeds City Council's safer and stronger communities board, which seeks to provide community cohesion over the whole life of the city. A key to that work is the contribution made by schools to community cohesion across Leeds. If we are to continue to affirm and assert the need for social cohesion within our country, it is crucial for schools to be included. People from different backgrounds with different abilities and perspectives need to work together in order to have a cohesive society.

I recognise the point that we must not give Ofsted too many individual tasks to pursue. But this is the only one of those tasks which looks beyond the school gates. It is vital that schools do that. I very much hope that the noble Baroness, Lady Flather, will press her amendment. I perhaps even hope that the Government might accept it as a crucial part of how schools should operate within our culture and society.

Baroness Howe of Idlicote: My Lords, all the proposed amendments are more than worthy of acceptance, whether that is in the Bill, by us all or in guidance to schools and communities. They clearly set the sort of society that we are trying to achieve; that is, the big society, community involvement, or whatever one likes to call it. I agree entirely with the points made by my noble friend Lady Flather in speaking to her amendment. Of them all, it perhaps sums up the whole feeling that the school, and the arrangements of the school in what it sets out to achieve for the children, also involves the community, which is a sort of two-way process.

I should like to make one further point at this stage. When we look at all these additional changes and responsibilities that schools will have to cope with as a result of this Bill when it becomes law, one area that perhaps gets less attention is the role of the school governors. They are being asked to play an increasingly important role-I declare my interest as president of the NGA-on well-being and other issues. Whatever the issues are, these are added responsibilities. If I were to add anything, I would include something about the importance of not just management of the school but the whole way in which it operates under its governors. With that, I hope that we will get a favourable

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response from the Minister and perhaps even an acceptance of something of what has been said to go in the Bill itself. We shall have to wait and see.

Lord Lucas: My Lords, I very much hope that my noble friend will pay attention to the speeches he has heard on Amendment 78. I well remember the debates that led up to and followed the inspired amendment in the name of the noble Lord, Lord Alton, which got us out of some emotional difficulties. It expressed all our intentions well. This Government realise that measuring schools and setting them objectives has an effect on schools, which is why they introduced the EBacc, which is having an effect. Ofsted looks at community cohesion not because we expect Ofsted to go galumphing all over this territory but so that schools know that attention is being paid to whether they do it or not, and that, therefore, it will come within the list of things that they have to do. The noble Lord, Lord Quirk, made some pretty good fun of the provisions in the Bill about social, moral and cultural development, as if there was a way of measuring these things or a tape measure that could be run over them. But having that in the Bill means schools know that this is something they have to do and that, therefore, they have to give time to it and spend money on it. If schools are not given any mind in these sorts of areas, they will start not doing it in the way that they have been not doing foreign languages. Hence, the need to row back on that with some vigour, which I am delighted my right honourable friend is doing. These things matter and these particular words matter. The noble Baroness, Lady Flather, has my total support. I very much hope that in the Minister's consideration of what might be done to improve this Bill, she will focus on those two words.

On the other amendments in the group, I support what the noble Lord, Lord Northbourne, is aiming at. It seems to me that we are moving children between two regimes-that of the social services and that of the school, or the family and the school, whichever may apply. In terms of understanding what is going right and what is going wrong, it is important to make a measurement at the point when a child moves from one to the other so that we know whether the problems of literacy are being generated in the community or though a lack of attention in the school. I am not saying that this is the right place to put it but if we are doing value-added in a school, we should take an initial measure at the beginning and not two years in. A lot of value-added goes on in those two years in a good school. We should be doing that. I very much support the spirit of the amendment.

I also support my noble friend Lady Walmsley in her wish to see well-being included. The Prime Minister has been right to support that as a concept of wide application and it really should find its way into something as central as education. I look forward to the speech of my noble friend the Minister.

Lord Elton: My Lords, I had hoped to speak in support of the noble Lord, Lord Northbourne, but I cannot do so because the debate has taken place in my absence. So I rise only to say in a very plaintive way that I left with a list of groupings which made it clear

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that I had time to attend to other business but having attended to the other business, I find that the business I wished to be here for had already been dispatched. I hope that is not going to become a regular feature of our proceedings because it is exceedingly inconvenient.

Baroness Jones of Whitchurch: My Lords, I have listened carefully to the debate. We have a great deal of sympathy with those noble Lords who fear that Ofsted's role is diminishing to concentrate on academic achievement and behaviour at the expense of some of the wider social and personal development issues. As has been pointed out, these have an equal status in the classroom and they are sometimes a necessary precursor to the learning process itself. There is also quite rightly some concern that if these issues are not a key part of the Ofsted inspection regime, they will be given diminished status by teachers. I am sure the Minister will say that this is not the intention but we should be realistic about human nature and the pressures that teachers are under to deliver on so many different fronts. The Ofsted report is an essential guide for parents and schools are desperate to score highly on what they perceive to be the core measures of inspection. It is important that these measures are kept in the legislation.

We support the amendment moved by the noble Baroness, Lady Walmsley, which puts children's well-being at the heart of the school mission. We supported a similar amendment in Grand Committee and we reiterate today that schools should not be simply about academic achievement. Schools should have a responsibility to provide a safe and happy environment where all children can thrive. That should include covering issues such as nutrition, exercise, relationships, respect for each other and tackling low self-esteem. In Committee the Minister, the noble Baroness, Lady Garden, said:

"Ofsted recently commented that well-being will be at the heart of the new framework, because it will require inspectors to consider the full range of experiences for pupils".-[Official Report, 20/7/11; col. GC 491]

These themes were repeated in the Minister's letter to my noble friend Lady Hughes. If this is the case and we are all in agreement, I see no reason why the Minister should not accept the amendment moved by the noble Baroness, Lady Walmsley, so that the requirement can appear in the Bill.

In an earlier debate, the noble Lord, Lord Northbourne, made a powerful case for improved early years provision. He has echoed those themes today. He is rightly challenging us to identify the mechanisms that will ensure investment in early years so that every child, when entering school, has a capacity to learn and succeed. Again, these themes were echoed by the noble Lord, Lord Quirk, and other noble Lords. This is particularly significant when we read in the past few days that the Institute for Fiscal Studies calculates a 20 per cent cut in funding of early years provision. We have every sympathy with the position that he is pursuing, although it might be unfair to ask Ofsted to report on how school-ready pupils are on first arrival when the receiving school will not have had much opportunity to influence this. He is in effect making a case for more rigorous independent inspections of early years provision and this we would wholeheartedly support.

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Finally, I share the concern of the noble Baroness, Lady Flather, about the removal of social cohesion from the core list of issues to be inspected. She is right to identify that this goes much further than measuring the cultural development of pupils. We are blessed with living in a diverse, multicultural society, but it has its tensions, suspicions and hostilities, and we are not short of volunteers who stoke up conflict at any slight or perceived unfairness. Young people need to understand the roots that have brought us together and the advantages of strong communities living in tolerance. The school's role in the community and its influence as a community leader cannot be underestimated so I hope to hear more details from the Minister about how this is going to be achieved in the curriculum and measured by Ofsted. In the absence of a convincing explanation, we will support the amendment of the noble Baroness, Lady Flather.

I understand Ofsted's concern that it is being asked to measure too many aspects of education. I also understand that at times of limited resources, choices have to be made. But this is about getting the balance right. It is about what parents can expect from their children's education and how we want to shape and nurture the next generation of citizens. I do not think we have the balance right just yet.

6.45 pm

Baroness Garden of Frognal: My Lords, the current reporting areas for school inspections of maintained schools and academies have evolved over the years in a piecemeal way with new requirements being bolted on for the best of reasons but without there being any overall consolidation. Over time the arrangements have become crowded, with inspectors having to make numerous judgments and schools feeling that they have to jump through multiple and sometimes overlapping hoops. Clause 40 consolidates and refocuses the arrangements around core issues related to education in its widest sense, covering pupils' academic and personal development. It specifies four high-level areas that must be reported on; namely, pupils' achievement, the quality of teaching, leadership and management, and pupils' behaviour and safety. It requires inspectors, in reporting on these, to consider pupils' spiritual, moral, social and cultural development and how the school is meeting the needs of the range of pupils. The new approach will mean inspectors spending more time in classrooms, observing teaching, listening to pupils read, and talking to pupils and staff. The space provided in the new framework will mean that inspectors can drill down more effectively into difficult areas. Ofsted has developed, piloted and now published a new draft framework built around these provisions and the proposals have been welcomed by both schools and inspectors. Ofsted is currently training inspectors in the new approach which, subject to the passage of this Bill, will be introduced in January.

The specific terms "well-being" and "community cohesion" in Amendments 77 and 78 are not included in the consolidated provisions set out in Clause 40. But as my noble friend Lady Walmsley pointed out, that does not mean that they are to be absent from the new arrangements. There will be good coverage of these matters but they will be approached in an integrated

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way, linked to the core areas and underpinning considerations. This comes across clearly in the draft framework documents that Ofsted published at the end of September which were circulated to Peers in the open letter to the noble Baroness, Lady Hughes, on 14 October. For example, the new arrangements will give prominence to aspects such as behaviour, attendance and pupil safety-all of which are fundamental to well-being. Inspectors will spend more time looking at absence and reasons for this and at how the needs of any pupils who are educated partly off site are addressed. The wider safeguarding of pupils remains a key part of the assessment of leadership and management and noble Lords have rightly emphasised the importance of safeguarding. That also looks at how the school is working in partnership with other schools, external agencies and the community to increase the range and quality of learning opportunities for pupils. Inspectors will be considering pupils' participation in activities to develop their social skills. Inspectors will look at how schools manage safeguarding arrangements, including effective identification of children at risk of harm. They will also conduct case studies looking at the experience of vulnerable pupils, including those with special educational needs, looked-after children or those with mental health needs.

There will also be good coverage of issues related to community cohesion. I can reassure the noble Baroness, Lady Flather, and others who spoke in support of this that inspectors will focus on how well performance gaps are narrowing between different groups of pupils when assessing achievement. They will also look at how teachers ensure that all pupils have equal access and a fair chance to learn in an atmosphere of respect and dignity when assessing behaviour, at how the school helps pupils prepare for life in modern democratic Britain and a global society when addressing leadership, and at the extent to which pupils understand and appreciate the range of different cultures within the school and further afield, as the right reverend Prelate pointed out, as an essential element of preparation for life when considering pupils' spiritual, moral, social and cultural development. This is in the draft evaluation schedule published by Ofsted which is available to all schools and the public, so I can also reassure my noble friend Lord Lucas that all schools will indeed know about it.

My noble friend Lady Benjamin asked how we would ensure that equalities issues were addressed. I reassure her that equalities are at the heart of the inspection system. Under the teaching limb, inspectors will assess the extent to which the needs of all pupils are being met. Under behaviour and safety, inspectors will look at whether all pupils have an equal and fair chance to thrive and learn. On leadership, they will assess whether there is a broad and balanced curriculum that meets the needs of all pupils. Where schools are not meeting the needs of all groups of pupils, this will be reflected in inspectors' judgments about the school. In addition, schools of course have duties under the Equality Act.

Amendment 79 would amend the underpinning requirement for inspectors to consider pupils' spiritual, moral, social and cultural development to add linguistic

26 Oct 2011 : Column 806

development. I assure the noble Lord, Lord Quirk, that I agree that linguistic development is highly important. That is reflected both in Ofsted's new approach and in the early years foundation stage. The starting point for assessment of communication, language and literacy development is the early years foundation stage profile assessment, which sets the standards for learning and development from birth to age five. My noble friend the Minister met the noble Lord recently and shared with him the full detail of the assessment that is made on communication and language. I say for the benefit of the House that the assessment includes checking the extent to which children speak clearly and audibly with confidence and control, and show awareness of the listener. It assesses how they use language to imagine and recreate roles and experiences, and how they use talk to organise, sequence and clarify thinking, ideas, feelings and events. It checks that children hear and say sounds and words in the order in which they occur; that they link sounds to letters, naming and sounding the letters of the alphabet; that they use their phonic knowledge to write simple regular words and make phonetically plausible attempts at more complex words; and that they explore and experiment with sounds, words and text, and retell narratives in the correct sequence, drawing on language patterns of stories.

We have recently consulted on revisions to the early years foundation stage. One proposal that we are looking to take forward is a new assessment for all children at age two. This would include personal, social, and communication and language development. The aim is to identify where children are doing well and where additional support may be necessary. The intention is to introduce this from September next year.

I turn to the new inspection system. In evaluating teaching and pupil achievement, inspectors will draw on the EYFS profile assessment in considering how well pupils develop skills in reading, writing and communication, and the extent to which pupils develop the skills to learn for themselves. Inspectors will listen to children reading, with a particular emphasis on weaker readers, and consider opportunities in the curriculum and through interactions with teachers and other adults for pupils to engage in a range of activities-for example, developing an appreciation of theatre and literature.

As the noble Lord has noted previously, social and cultural development presupposes linguistic development. We do not think that it is necessary to identify linguistic development separately from social and cultural development and, more generally, we do not believe that there is a pressing case to add to the legislation in this respect. The phrase "spiritual, moral, social and cultural development" has been with us since the start of Ofsted inspections in the early 1990s and continues to be just as useful and relevant today. To provide some additional assurance, we have agreed with Ofsted that linguistic development will feature explicitly in the training being provided for all inspectors in the coming weeks. We have asked that this important area be considered within the new framework for initial teaching training, on which Ofsted will shortly consult.

26 Oct 2011 : Column 807

Amendment 76A from the noble Lord, Lord Northbourne, would introduce a fifth core area on which Ofsted would be required to report, covering the extent to which pupils of compulsory school age are "school ready" when they join the school. We have already had a useful debate during the first session about the importance of good parenting and support through the first five years of a child's development, so I will not repeat the points that were made on this. However, I fully acknowledge that parents and early years providers have an important role to play in preparing children for school.

School inspection is concerned with holding schools to account for performance in educating their pupils. Inspection reports are therefore focused on the extent to which pupils progress and develop and not on reporting information about aspects of pupil intake, but I assure the noble Lord that inspectors will be interested in pupils' starting points. The evaluation schedule that inspectors will use makes reference to the important assessment that is required to be made by schools under the early years foundation stage profile, the scores that inspectors will check as part of assessing what progress pupils have made at the end of each key stage relative to their starting points. Put simply, inspectors will look at the value that schools add while not lowering their expectations.

I know that the noble Lord is concerned also with what happens in other early years settings, the extent to which they are required to follow the early years foundation stage and how they are held to account. EYFS is mandatory for all early years settings, including reception classes in schools. The EYFS profile is an observational assessment of all children in the summer term of their reception year at school, the academic year in which they turn five. The reception class, of course, is attended by nearly all children. In addition, all children at ages three and four are entitled to 15 hours' free early years education for 38 weeks a year, as are the most disadvantaged children at age two. For the most vulnerable children in need, we have debated previously the duty on local authorities to consider providing services which meet their needs.

The assessments are undertaken by teachers, supported by evidence gathered during the child's time in reception year. It is based on practitioners' ongoing observation and assessments of children's progress in all six areas of learning and development. Parents are given a written report on their children which reflects the judgments of their child's teacher based on the evidence that they and others have gathered. The information is used by the parent and the school to understand the child's development needs and to help plan for their future learning.

Data from EYFSP assessments are collected by local authorities, and they provide aggregate data to the department. The department publishes data annually at local authority and national level-these have been sent to the noble Lord. Last week we wrote to the noble Baroness, Lady Howe of Idlicote, detailing the various ways in which we collect information on the early years. We would of course agree with what she said in today's debate about the importance of school governors in the whole pattern of these developments.

26 Oct 2011 : Column 808

On holding local authorities to account, we are making data available about how children are developing at the end of the early years in each local authority area. We would expect schools and parents to use this to challenge the authority on its performance.

Ofsted inspects all early years providers against the EYFS. Where settings fail to meet the EYFS requirements, inspectors take action, instructing improvements as needed. Where improvements are needed, settings are inspected again, more quickly than they would otherwise be.

Finally, local authorities have a duty to provide information, advice and training to childcare providers in order to raise quality. To support this, the Government provide a substantial funding stream through the early intervention grant to enable local authorities to act more strategically and target investment where it will have the greatest impact, with greater flexibility to respond to local needs and to drive reform.

I hope that the noble Lord will agree that the EYFS profile is the right mechanism to provide the information about school readiness that he is seeking, and that the focus in school inspection should continue to be on the progress that pupils are making and the value added by the school.

The provisions in Clause 40 offer a coherent set of high-level reporting areas that have enabled Ofsted to put together a new approach to inspection that will be clearer for schools and inspectors and drive improvement.

I apologise if I have spoken at some length, but many important points have been raised in this debate. I hope that I have offered reassurance about coverage of well-being, community cohesion and linguistic development within the framework documents, and wider assurances about EYFS and how school readiness is monitored. I hope that, with those reassurances, the noble Lord will feel able to withdraw his amendment.

7 pm

Lord Lucas: Before my noble friend sits down, will she agree to write to me saying exactly where community cohesion is dealt with in the draft framework document or the evaluation schedule? I must be reading the words wrong, missing them or misunderstanding how they work.

Baroness Garden of Frognal: I will certainly write to my noble friend.

Lord Northbourne: My Lords, if you were setting up a business to manufacture and sell bicycles and you were going to subcontract the construction of the wheels and maybe the bell to another provider, would you not inspect the wheels and the bell when they came in? Would you rely entirely on the provider to give you the inspection that you need to ensure the quality of the pieces that you were bringing in and putting together and on which your life's work would depend?

The Minister has kindly given us a great deal of detail about what the EYFS does and all the inspections that take place, and it is very exciting that that is happening, but I am looking at it from the point of view of the school in this particular case. I think that

26 Oct 2011 : Column 809

the school needs to have an independent assessment to ensure that the input into the school is up to standard; and if it is not, then extra funding perhaps needs to be provided to enable the school to give special support, rather than having to take money away from its educational work in order to have to pay for restorative work to bring children up to speed.

I will read the reply carefully, but I am sorry to say that I do not honestly think that the Minister has covered the point that I tried to address. That may be my fault for not addressing it sufficiently clearly. Under the circumstances, I certainly do not intend to take the matter any further and I beg leave to withdraw the amendment.

Amendment 76A withdrawn.

Amendment 77 not moved.

Amendment 78

Moved by Baroness Flather

78: Clause 40, page 36, line 43, at end insert-

"( ) the contribution made by the school to community cohesion."

Baroness Flather: I thank the noble Baroness, Lady Gardner, for her comprehensive statement, but I regret very much that I did not get from it the flavour of community cohesion as I perceive it. I perceive it to be cohesion within the community, not just within the school. The school must promote that by teaching children about the community that they are in.

We now have free schools which will be very different from state schools. They will be free schools, so they will need that particular provision even more. We also have faith schools that will definitely be single faith schools, not schools where half the pupils or two-thirds of the pupils are from other faiths. It is extraordinarily important not only that those schools have responsibility for community cohesion but that Ofsted has the responsibility to check them for it. I am not satisfied that that point has been sufficiently accepted, so I wish to test the opinion of the House.

7.03 pm

Division on Amendment 78

Contents 141; Not-Contents 181.

Amendment 78 disagreed.

Division No. 3


Adams of Craigielea, B.
Alton of Liverpool, L.
Andrews, B.
Bach, L.
Bakewell, B.
Bassam of Brighton, L.
Beecham, L.
Best, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Carter of Coles, L.

26 Oct 2011 : Column 810

Clancarty, E. [Teller]
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Crawley, B.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Dear, L.
Desai, L.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Flather, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Gould of Potternewton, B.
Grenfell, L.
Grey-Thompson, B.
Harries of Pentregarth, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
McAvoy, L.
McConnell of Glenscorrodale, L.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Monks, L.
Moonie, L.
Morgan, L.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Bengarve, B. [Teller]
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Quirk, L.
Ramsay of Cartvale, B.
Rea, L.
Reid of Cardowan, L.
Richard, L.
Ripon and Leeds, Bp.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Touhig, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Wheeler, B.
Whitaker, B.
Wigley, L.
Wilkins, B.
Williamson of Horton, L.
Young of Hornsey, B.
Young of Norwood Green, L.


Addington, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Bannside, L.
Berridge, B.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.

26 Oct 2011 : Column 811

Browne of Belmont, L.
Browning, B.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Carlile of Berriew, L.
Carrington, L.
Cavendish of Furness, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Deech, B.
Dixon-Smith, L.
Doocey, B.
Dykes, L.
Eames, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Faulks, L.
Feldman, L.
Fellowes of West Stafford, L.
Ferrers, E.
Fink, L.
Finlay of Llandaff, B.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Glendonbrook, L.
Goodhart, L.
Goodlad, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Newby, L.
Newlove, B.
Newton of Braintree, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Paisley of St George's, B.
Palmer of Childs Hill, L.
Plumb, L.
Popat, L.
Randerson, B.
Razzall, L.
Redesdale, L.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Spicer, L.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.

26 Oct 2011 : Column 812

Thomas of Winchester, B.
Trefgarne, L.
Trimble, L.
True, L.
Ullswater, V.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Wheatcroft, B.
Wilcox, B.
Younger of Leckie, V.
7.17 pm

Amendment 79 not moved.

Amendment 80

Moved by Baroness Massey of Darwen

80: Clause 40, page 37, line 8, at end insert-

"(5C) In reporting under subsection (5), the Chief Inspector's report must consider the wellbeing of the children in the school and, in particular, must report on-

(a) school policies on bullying and healthy eating;

(b) the delivery of citizenship education;

(c) the delivery of personal, social and health education, including sex and relationships education; and

(d) child protection measures.

(5D) In reporting on the matters listed in subsection (5C), the Chief Inspector must take into account the age and stage of development of the pupils.

(5E) The Chief Inspector's report must also consider-

(a) how the delivery of the matters listed in subsection (5C) is coordinated across the school curriculum and in pastoral care; and

(b) how many parents, pupils and members of the wider community are involved in the delivery of the matters listed in subsection (5C)."

Baroness Massey of Darwen: My Lords, Amendment 80 refers again to inspections in schools. It follows seamlessly from the previous discussion. As a former teacher of foreign languages and English, I appreciate the remarks of the noble Lord, Lord Quirk, about linguistics. Of course, community cohesion and safeguarding appear in my amendment. It is focused on the well-being of children; that is surely something that every parent and grandparent wants for their own children, and I speak as both.

The advantage of inspections of any school practice, however frequent, is that they can do two things: they can report on good practice, which can be shared between schools, and they can address poor practice, including teaching weaknesses and the appropriateness of materials. I will come to this shortly.

Let me first summarise the amendment. It is about the chief inspector reporting on school policies on bullying and healthy eating; the delivery of citizenship education; delivery of personal, social and health education including sex and relationship education; and the child protection measures. This should take into account the age of development of pupils, and should involve parents, pupils and members of the wider community. The amendment follows debates that were held last week on exclusion and searching.

Many noble Lords were concerned about a positive ethos being fostered at school. They were concerned about an emphasis on enriching learning experiences in an atmosphere where children can flourish. I believe that schools can help teach children to be good learners, good friends, good parents, and good citizens, and I

26 Oct 2011 : Column 813

believe Ofsted could comment on this. I am aware of school inspection guidance. I am aware of self-evaluation schemes. I am aware that every school is not inspected every year, but having well-being included in the inspection guidance would signal that it is important.

As my noble friend Lady Morgan said earlier, the threat of inspection can improve things even if it is several years ahead. Inspections are now on websites so others can see what good examples there are. I talked to an inspector the other day who was full of praise for a school where there was volunteering with senior citizens, and older pupils were helping with sports clubs for younger children. All this was contributing to pupils' sense of responsibility for others, improving their communication skills and well-being.

I am aware that well-being is a nebulous term, which is why I have tried to divide it into some of the areas that can be inspected. Ofsted is already charged with reporting on schools' spiritual, moral, social and cultural development. There are many other areas that could be included as part of well-being. I could have included physical education, which encourages collaboration, sharing and team spirit, or music, where singing or playing together enhances harmony and understanding of how separate parts blend into a whole. I could have included literature which, whatever the age of the child, encourages exploration of morals, ethics and behaviour, as well as a love of language. All this is about well-being.

Well-being helps children to learn and improves the outcomes referred to by the noble Lord, Lord Northbourne. Children learn best when they feel secure and valued and have clear boundaries for behaviour. Schools are places where children can learn to respect themselves and others. UNICEF's Rights Respecting Schools programme-and I declare an interest as a trustee of UNICEF-has been well evaluated and found to have a positive influence on behaviour and learning outcomes.

I turn briefly to the separate parts of the amendment. I know that the Government are very concerned about bullying. Schools should have a clear policy on this and should ensure that it is implemented. Bullying is a destructive act, for whatever reason-appearance, disability, ethnicity or whatever. It is destructive mainly for the bullied but also for the bully themselves.

On school meals, another policy area, we know about the rising tide of obesity. Schools can help by providing and encouraging healthy, nutritious food. I ask the Minister if the National Healthy School Standard will be preserved.

Let me now touch on citizenship as a part of well-being. Children from a very early age can learn about how democracy works. It is partly about how pupils behave in a classroom. Do they listen to each other? Do they help each other and share? Such skills can be learnt and practised at school. Many schools have elected school councils that comment on discipline and school policies. I have seen them working very well in primary schools.

Personal, social and health education-PSHE-is important. It is sometimes called life skills. Parents of pupils want young people to learn about relationships

26 Oct 2011 : Column 814

and about health and keeping safe. This should be appropriate to age and stage of development. PSHE will include topics such as diet, smoking, drugs, exercise and saying no to unwanted pressure from adults or other children. It will include teaching resistance to internet dangers, such as pornography or illegal sales. The Government's concern about sexual consent is an element of this for older pupils.

I met an Ofsted inspector recently who said that PSHE was not taught as a separate lesson anywhere in the curriculum. It was covered across the curriculum and in pastoral care, in assemblies, visits to the school and out-of-school activities. The school ethos was one of respect and co-operation, led by a senior staff group. The staff were aware of the importance of PSHE and a senior teacher co-ordinated it. The inspector said that it was brilliant.

I am aware that there has been a campaign to discredit myself and the noble Baroness, Lady Walmsley, which has made dangerous assumptions about our intentions. I have a letter here from the Christian Institute, circulated to many noble Lords, which states:

"At Report stage there will be votes on amendments to require schools to teach sex education".

This is untrue. A further letter states:

"Amendment 80 would ratchet up the pressure on schools to teach children about matters which they are simply too young to deal with".

Again, that is untrue. As I said earlier, a duty of inspection is to ensure that teaching and materials are suitable for the age and stage of the child. My amendment protects children.

I am aware also that some colleagues will have been the subject of a public letter-writing campaign fuelled by the letter that I have just quoted. One lady wrote to someone saying:

"An Education Bill is being forced through Parliament which would result in compulsory sex education for school children from the age of five years".

Where is this Bill that is being forced through Parliament? Where is the intention? My amendment is about well-being and protecting children. The public have been fed dangerously misleading information, which implies criticism of myself and, to some degree, the noble Baroness, Lady Walmsley. We were not informed that such information was to be sent and it is only by the kindness and concern of other Members of this House that we have sight of it. Incidents such as this letter-writing campaign happen when misinformation is unleashed, and people make what they will of it. It is particularly worrying when a charity is involved.

Never in the time that it has been my honour to serve in your Lordships' House have I known such a sinister and vicious campaign, which has sought to misinform others. Noble Lords will receive hundreds, maybe thousands of letters, taking up their time and energy, and I find this most regrettable. I also deeply regret the fact that it is ironic that the noble Baroness, Lady Walmsley, and myself have been two of the people in this House most concerned for the welfare of children. My own work has included child internet safety and child trafficking. The noble Baroness, Lady Walmsley, has been consistently involved in work on the rights of the child. I am deeply shocked and

26 Oct 2011 : Column 815

offended by this attack on my and the noble Baroness's integrity, and I am very saddened that a colleague on the Benches opposite has also been involved in circulating misinformation to other colleagues. A letter from her states:

"Amendment 80 ... would be to encourage the use of the kind of primary school sex education materials which have caused such concern".

This is simply not true. This amendment safeguards children.

I briefly move to child protection, which includes safeguarding. This concerns us all. We have had horrendous examples of children falling through all the nets that can protect them. Problems can sometimes be picked up in school, whether it is physical or other forms of abuse. But there must be mechanisms in place so that a child in difficulty can be spotted and referred for help. Children can be taught how to protect themselves; they also have a right to protection.

The whole school community-here we have community cohesion again-of parents, school governors, agencies in the community, voluntary sector organisations, welfare agencies and outreach work such as sport or volunteering groups all contribute to well-being. Children can be encouraged to get involved in activities outside school, such as clubs and award schemes. Some sports clubs are actually linked to schools. This also is well-being.

Inspection reports can highlight how well-being is encouraged in schools. Such reports can be shared and others can learn of good practice, and they can pick up shortcomings, as I have said. Well-being is a vital aspect of what goes on in homes, schools and communities, and we know it when we see it. Children are entitled to school policies, to education and protection, which enhance and safeguard their well-being. I beg to move.

Baroness Walmsley: I am grateful to the noble Baroness, Lady Gould of Potternewton, and the noble Lord, Lord Layard, for graciously allowing me to speak next, for obvious reasons. Before I get on to the substance of this amendment, I would like to say a few words about the events that have led up to our debate today. As the noble Baroness, Lady Massey, said, the Christian Institute recently sent out a letter in which it claimed that I would be laying an amendment to make PSHE compulsory. As your Lordships see from the Marshalled List, this is not true. It also claimed, in a subsequent letter, that my fictional amendment, and that of the noble Baroness, Lady Massey, which we are now debating, would force schools to teach five year-olds about sex. That is also not true. There have been wicked insinuations that we would want to do something that would harm children and their innocence. The noble Baroness and I have spent our whole parliamentary lives, much of what went before and a lot of what goes on outside, working to promote the well-being of children, and to suggest that we would harm them is outrageous and very un-Christian.

7.30 pm

Not satisfied with this, they have got a whole lot of people to send e-mails and to make phone calls to a number of Peers, including myself, asking us not to vote for teaching five year-olds about sex. Well, since we had no intention of doing so anyway-which a

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polite inquiry to either of us would have discovered-this is both time-wasting and cruel. Some of the people who made contact were very upset. So we have a so-called Christian organisation telling lies and being both uncharitable and cruel.

Some of the callers mentioned an exhibition of materials, which they claimed would be used in schools while forcing sex education on young children. Of course, the noble Baroness, Lady Massey, and I were not invited to that exhibition in case we asked sharp questions about which schools had used these materials, for which age groups and on which dates. From what I can tell, these materials would have been entirely inappropriate for use with young children. So there has been a very nasty little campaign of misinformation going on. It has even taken in some of your Lordships. I heard one Peer come in and ask, "When are we going to debate sex for five year-olds?". My answer was, "We are not". It is not all right to go around spreading misinformation about the serious work of this House.

I would like us to debate what the noble Baroness is really proposing, rather than what she is not. I think I can be confident in saying that her intention in proposing that Ofsted should inspect how well schools inspect bullying policies, healthy eating, citizenship, PSHE and safeguarding is to make sure that schools do these things well. Apart from citizenship, they are not in the national curriculum, but they do matter. It would not be doing PSHE well for schools to introduce young children to matters that are inappropriate for their age and stage of development, and please note that Amendment 80 says the chief inspector, and therefore teachers,

and how well parents are,

I would say this is very good practice, which is what we seek to encourage.

I would also point out that the amendment is not just about sex. Why are these people so obsessed with sex? I do wonder who they want their children to get their information from if they are not willing, as many parents are not, to give it to them themselves. Do they want them to get the information from their friends behind the bike shed or from TV, magazines, advertising hoarding, or somewhere else in the world? Or do they want it delivered at the right time, in a sensitive manner by a well trained teacher? I know which I would choose.

A good PSHE curriculum contains a lot of valuable things that enable children to grow up safe and confident, but it is always the sex and relationships bit that gets people hot under the collar. Note that I say "sex and relationships". Properly delivered SRE does not start at five years old with the mechanics of sex; it starts with the relationships that all children have. It teaches them to understand their relationship with their parents or carers, and to respect the love and responsibility their parents have for them. It teaches them about the importance of friends, and how to be a good friend-we all know how important friends are to children; friends make them happy-and it teaches them to value all their other relationships. When the time is right, it teaches

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them that there are other kinds of beautiful relationship that bring great joy and fulfilment to human beings. What it does not do is stuff sexual information down their throats until they are ready.

Talking of throats, I am pleased that the noble Baroness, Lady Massey, has included the matter of healthy eating in her amendment because I am concerned that if all schools become academies, as the Government intend, all the work done to ensure high standards of nutrition in school meals will go out of the window because they do not have to adhere to them. If academies are expected and encouraged to admit a lot of children on free school meals, which are paid for by the taxpayer, it is only reasonable to expect that they provide a high standard of nutrition for those and other children. Good food helps children to learn so of course it is relevant to these schools' educational purpose.

I hope that my noble friend the Minister will be able to reassure the House that Ofsted will report on these important matters for those schools that it continues to inspect, and say how he will ensure that all the other schools that are no longer inspected will do them well, too. All these things matter to children and they deserve them to be done well.

Baroness Gould of Potternewton: My Lords-

Lord Hylton: My Lords-

Noble Lords: Cross Bench!

Baroness Gould of Potternewton:My Lords, my name is on the amendment if your Lordships would do me the courtesy of letting me speak. The value of this amendment is that it brings together the different elements of well-being, the interventions schools can make and the inspectorate regime. As the two previous speakers said, it is a great tragedy that such an important amendment has been usurped in this way, and actually been depicted in a completely false light.

I would like to start by quoting from a head teacher in a school in my home town of Brighton and Hove about the advantage of well-being being taught in schools. She says that,

That is what this amendment is about, and that view is actually reinforced by the Government's Healthy Schools toolkit, which says that,

Again, that is what this amendment is calling for. This amendment would be a significant factor in providing the necessary framework to improve outcomes for our young people. Crucially, it ensures that the chief inspector's report provides the evidence that determines that the outcomes have been achieved; that the school creates an environment of health and well-being; that the teaching is age-appropriate; that the school community has been involved; and that the programme can be sustained by the school.

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The well-being of a child underpins the ability of that child to learn, fulfilling their potential, increasing their educational attainment, and improving their life chances. Young people need to be safeguarded against the consequences of risk and the consequences of some of their actions, so they can gain the knowledge and skills they need to be aware, healthy and safe.

The Government in the PSHE review makes all the arguments for the value of PSHE: that there needs to be room in the life of the school for an exploration of wider social issues that contribute to the well-being and engagement of all pupils. It goes on to say that Ofsted stated in 2010 that the weaker areas of provision were sex and relationships, drugs and mental health, and that there was ineffective assessment and tracking of pupils' progress.

Again this amendment will help to overcome those weaknesses, and it should be seen as a package. For instance, citizenship is not only about the structure of our society and where we all fit in, but also about how we behave in our own communities. It is about tolerance and understanding diversity, and very often it is that lack of understanding that can be the cause of bullying in schools and sexual harassment-the latter a subject that many schools fail to recognise. Unwanted sexual contact is often a specific form of abuse that girls suffer routinely, and it really needs to be monitored.

This brings me to PSHE and SRE. The commitment by the Government to teaching sexual consent has to be welcomed, but it cannot be dissociated from the questions of how to avoid risk and the dangers of alcohol and drug-taking, which require specific education that gives young people self-esteem and the confidence to be in control. Yet self-esteem so often relates to image. We have to empower young people to be media-literate and to be able to cope with and challenge the bombardment of inappropriate images which often create bad eating habits.

To be effective, the interrelationship requires a level of co-ordination across the school to have a real impact on the well-being of the child. Health and well-being should be supported by the whole school community, with a well-being school group whose membership should include every aspect of the school: teachers, governors, students, the school nurse, the school cook, parents and carers. We can then ensure high-quality Ofsted-inspected lessons that range from personal finance to awareness of and sensitivity to diverse faiths and cultural beliefs, understanding discrimination, the wrongness of prejudice and bullying, the consequences of risky sex, drugs and alcohol misuse, and the importance of staying healthy. I genuinely believe that not to do so is failing this generation of children and young people. The Government, quite rightly, want young people to be responsible members of society. That can be achieved if they are prepared to provide the necessary framework to make it happen. This amendment is that framework.

Lord Layard: My Lords, this is a most important amendment because when surveys are done asking parents what they want most from a school, the majority say it is that their children should be happy. If this is so, it should surely be a major objective for our schools-it is as simple as that. Yet the existing pressures

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on our schools are in a very different direction and we are in danger of turning our schools into nothing much more than exam factories. We must surely do something drastic to reassert the importance of the development of character and of the personal well-being of children within the school. This is a matter not of either/or but of both/and: exams and academic achievement are extremely important, but so too is well-being.

On top of that, as the noble Baroness, Lady Walmsley, pointed out earlier, there is very strong evidence that happier children do better in terms of academic achievement. How can we get the rebalancing? I would be surprised if there were anybody in this House who did not believe that some rebalancing was needed in the objectives of our schools. I assume that we all feel that. The only way we can do that is by incentives, and the reality is that schools do what they think Ofsted wants them to do-it is as simple as that. Surely, Ofsted should be reporting on the ways in which schools are promoting the well-being of the pupils as well as the other objectives on which they already report. Should they not be reporting on what parents want for their children? If this is one of the things that parents most want for their children, if should surely be a major feature of Ofsted's reports. Parents want their children to develop as rounded people who are learning not just how to earn a living but how to live.

In this year of youth riots, I find it extraordinary that the Government cannot add pupil well-being to the priorities for Ofsted in Clause 40. We have been told of a reassuring letter from the Secretary of State, but he is just one Secretary of State. We are debating legislation, and it is not enough to have that reassuring letter; it has to be in the Bill. If it cannot be within Clause 40, which apparently it cannot, I urge the Government to find some way of having this ancillary sanction that strengthens the rebalancing in the direction in which I think all your Lordships would like to see movement.

7.45 pm

Lord Hylton: My Lords, after four speeches in favour of Amendment 80, the amendment still appears both overprescriptive and unnecessary. I say "unnecessary" in the light of the proposed new subsection (5B)(a) to the 2005 Act, which appears at the top of page 37 of the Bill. It lists,

As if that were not enough, proposed new subsection (5B)(b) talks about,

in the school. In addition, the chief inspector and all the other Ofsted inspectors will have to take account of the guidance already issued by the Secretary of State in July 2000. Finally, if this amendment were to be accepted, it would seem to fly completely in the face of the policy of localism quite rightly adopted by this Government.

The Lord Bishop of Ripon and Leeds: My Lords, I speak with a certain degree of trepidation, not least because in one of the briefings that I received about tonight's debate there was the suggestion that Bishops

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might like to keep their heads down on this amendment. I have no intention of doing that and while I have no responsibility for the Christian Institute, I want to apologise for any errors or false accusations made in the name of Christianity. I also want to affirm, as clearly as I possibly can, the enormous contributions made by the noble Baronesses, Lady Massey and Lady Walmsley, to the interests of children in successive debates within this House. I am grateful for all that they have done in the cause of children here.

Perhaps I might ask the Government Front Bench whether they would affirm, in summarising, that nothing in Clause 40 or in the noble Baroness's amendment could possibly alter the law so as to make sex education compulsory for anyone, whether that child is five or at any other age-and that if somebody were to desire that, it would involve new statutory provision and a quite separate procedure to that which we are involved with today.

That said, I welcome and have considerable sympathy for the propositions which the noble Baroness, Lady Massey, has put before us. I am particularly concerned with bullying. It seems to me that although it is inevitably very difficult to get any sort of figures in this area, bullying is not obviously decreasing within our schools. That is one reason why I was so enthusiastic a few moments ago to affirm the importance of social cohesion, and why I am grateful to the Government for the way in which they have continued to stress social cohesion-even if they are not prepared to have it in the Bill. Bullying can be extraordinarily insidious in the life of a school. I have been involved in enough instances and discussions, previously as a governor and with some responsibility for schools within my own patch, to know how dangerous bullying can be and what a need there is within schools, which on the whole do an excellent job in seeking to ensure that bullying does not happen. A number of times this afternoon, however, we have spoken of the way in which things can develop in a school, without anyone intending them to and sometimes without people noticing. I hope that the framework that has been referred to on a number of occasions makes it very clear that Ofsted inspectors need to be alert to the possibility that bullying is developing within a school.

I welcome the stress here on personal, social and health education. This is crucial to the development of young people, whether it is done formally, through PSHE classes, or through the whole ethos and being of the school, in the way that the noble Baroness, Lady Massey, described earlier. I, too, bring examples of PSHE being integral to the whole life of the school, so that through assembly, through behaviour in the playground and through the whole way in which staff, governors and students operate and relate to each other in the school, PSHE is continually invoked and spread among the members of the school.

I am pleased that the reference to PSHE in the amendment in the name of the noble Baroness, Lady Massey, stresses the need for it to be appropriate to the age and stage of development of pupils. The noble Baroness, Lady Walmsley, also made that point strongly. If we were to pass this amendment, that would be one way of indicating that we believe that it is part of the

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task of schools, therefore of Ofsted, to deal with inappropriate sex education literature in the case of young children. I sympathise with the view that we are getting an overprescriptive, long list for Ofsted through the amendments we are exploring. That may be so, but these four areas are crucial to the life of schools and I trust that, whether or not we go with this amendment, they will all be part of the work of Ofsted and, more importantly, of the work of all the schools in our country.

Lord Eden of Winton: My Lords, the speech by the noble Baroness in moving the amendment gave much reassurance to many in this place who may have been overwhelmed by some of the correspondence that we have been receiving. I am extremely sorry that both she and the noble Baroness, Lady Walmsley, have been subject to abuse on the grounds that they have been apparently promoting activities in schools, in the teaching of the classroom, which have no place there, or should not be there. The fact that we have been receiving so many letters is an indication of the widespread distress that has come about as a result of what has been said. Therefore, I hope that the Minister, in replying to the debate, will make certain matters very clear indeed. What needs to be made very straightforwardly clear is that there is no intention at all of forcing the teaching of sex education in primary schools for children of the age of five upwards. That would be very wrong indeed. Having seen some of the material that has been put about that is apparently available in schools, I can say that it is totally inappropriate for young children.

The trouble with teachers, or well wishers, trying to embrace a subject of such sensitivity is that they become too explicit and nothing is left to any imagination at all. Worse still, in some of the documentation that I have seen, children are actually encouraged to experiment and to find out what they might enjoy. That is insane. We really cannot tolerate that sort of thing and I hope that my noble friend will make it abundantly clear that this is something that he and his colleagues in Government equally will not tolerate. I have had many years of being able to observe children in school, having been the owner, a long time ago, of a private preparatory school, and I know that in some cases-very rarely-a child is very susceptible and vulnerable and open to all matters of persuasion and influence. However, the majority-I can say this with some certainty-are not.

Children, small children in particular, are extraordinarily resilient and they have a facility to bypass the sorts of issues and experiences that trouble older people. They can absorb them. They are, after all, at an early age, on a journey on a voyage of discovery. They are learning something new every day, they see things every day that are either exciting or alarming and they can overcome issues of distress and anxiety very quickly, on the whole. I generalise, I know; of course, there are exceptions. I very much hope, therefore, that we will not try to force feed sex education to children in our schools, because that would be totally wrong and I know from what has been said that neither the noble Baroness, Lady Walmsley, nor the noble Baroness, Lady Massey, have any intention of doing that. In fact, I find their amendment wholly unexceptional, albeit I do not think it is right to have it

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in the Bill. The inspectors, as has been said, should not have all this detailed material put in front of them; there are issues that need to be taken into account, but I do not think that it should be in legislation. However, I find their objective in stating these various points to be totally praiseworthy and I thank them very much for having brought these issues to the attention of this House.

Lord Hill of Oareford: My Lords, it may be for the convenience of the House to be clear-since I know that many noble Lords want to speak, since I do not want any hares, or anything else, to get running, and since we should debate this amendment on its merits, as the noble Baroness, Lady Massey, said at the beginning-that the Government do not have any proposals to bring forward or change any legislation in the context of sex education. I hope that that will help to speed up our debate.

Baroness Howarth of Breckland: My Lords, I want to engage in a discussion about the actual amendment and the issues that the noble Baroness, Lady Massey, more broadly raises, rather than getting into a debate that we said we were not going to have about sex education for the under-fives. I support the thrust of this amendment, in that it is about the kind of ethos that we want our children to be brought up in. I know that some noble Lords think that it is overprescriptive and that there are other ways of getting this into the regulations, the legislation or the way that Ofsted inspects, but it is crucial that this ethos is through schools.

Noble Lords will know that I spent many years setting up and establishing Childline. I spent the years I was not doing that working with children who are severely deprived or have been seriously sexually abused. I will come to that in a moment. These children are not a small minority; there is quite a sizable group of children who do not have the benefit of good, middle-class families-indeed, some families that are middle class have extraordinary difficulties, as any parent who has faced having children who are into drug or alcohol abuse will know. The one important issue for all these children is that the school can make a difference.

I am involved with a group of children at the moment who have all had extraordinarily difficult backgrounds. They have been before the court either because their parents are splitting up or because they have come into care. The one thing that has made a difference to those children is their school. They are all doing well. They have the sort of starred grades at GCSE that I could only have dreamt of. They are doing well because their schools have focused on their well-being.

8 pm

That is why I wish the Minister and the Government would not set their minds against using the word "well-being". After all, I gather that the Government are looking at what makes up well-being; there is a whole piece of work that tries to analyse the elements. The noble Lord, Lord Layard, was right when he said that it was something to do with happiness, but I do not think we are supposed to encourage children to be happy in schools these days. As the right reverend

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Prelate pointed out, one of the main elements is the prevention of bullying, which was one of the issues that Childline dealt with most. It impedes learning substantially. All the research on bullying shows that you will not learn if you have that impediment.

I know that Ofsted has child protection very high on its list because in another capacity I have been relentlessly inspected on it. I am very grateful for that; it keeps the standards up. It illustrates that having that inspection keeps those standards moving forward. When you think that you are doing well, that inspection will tell you where you are failing. That is why I have some real anxieties about schools not being inspected on their child protection measures.

I was intrigued at Question Time today when we were talking about a register of electors becoming voluntary. I tried to get to my feet but did not manage it. If we are to have a voluntary register of electors, it is even more essential that we deliver good citizenship training. Only if children know that they have to register, and about voting, will they become engaged in our democracy. Therefore, I am also very keen on that.

On child protection and sex education, it is absolutely crucial that children learn enough to protect themselves. If you had talked to as many children as I have who have been subject to serious grooming and abuse, in which they had no understanding of what was happening to them, you would understand that children should learn in an appropriate way-I am all for being appropriate-that that is not the kind of relationship that they should be engaged in. I just wish my colleagues would talk about relationships and sex, rather than sex and relationships. What matters is the relationship and the child understanding that relationship.

I do not want to delay the House any longer; I know that we have been going on for a long time. However, I hope that the Minister and his colleagues will find some way of ensuring that these elements, which make a great difference to how children learn, can be included. He has heard me say time and again that unless a child has a secure environment, either at home or in school-where it can be made up if it is not there at home-he or she will not learn. All the research on issues to do with thriving shows it. That is what we are about: getting children a good education and making them happy.

Baroness O'Cathain: My Lords, I wish to speak against the amendment for two reasons. First, I am concerned that, as has already been mentioned, it will add to the range of issues that already exist for assessment by school inspectors. In Clause 40, proposed new subsection (5A) indicates that Ofsted must focus on,

and so on. I will not read it because we do not have the time but I refer to new paragraphs (a), (b), (c) and (d). The noble Lord, Lord Hylton, drew our attention to the fact that Ofsted must also consider the overarching framework, encompassing,

The same proposed new subsection also expects schools to provide for a,

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That is all in the Bill. It is all good and I am sure nobody would disagree with any of it.

My second reason for opposing the amendment is that, according to the amendment, it would require Ofsted to assess sex and relationships education in every state primary school. This is strange because, until now, primary schools have not been required to teach sex and relationships education. It is not a statutory national curriculum subject for primary schools. However, the amendment refers to all state schools, which encompasses primary schools.

I have a seriously worrying concern. Even now local councils and other public bodies are promoting wholly unsuitable resources for primary schoolchildren. At least, I take it that they are primary schoolchildren because the materials say that they are suitable from the age of five and a half. To my mind, that means primary schoolchildren. These materials are often recommended by the Sex Education Forum. Many noble Lords have already said that they have seen excerpts from this material. I have received e-mails reporting that where such material has been used, the children have been traumatised. Amendment 80 does not directly make sex and relationships education a national curriculum subject; it takes a different approach. Instead, it requires Ofsted inspectors to report on the delivery of PSHE, including sex and relationships education.

The amendment will apply unfair pressure to primary schools. Conscientious teachers and governors may feel under pressure to teach sex education when they would otherwise judge that it was not in the interests of their pupils. Primary schools will obviously fear being marked down in their Ofsted report if they are not using materials recommended by influential bodies such as the Sex Education Forum. How can they know-

Baroness Massey of Darwen: My Lords-

Baroness O'Cathain: Please let me finish my argument. How can they know what view a particular inspector will take? The amendment refers to assessing,

but is that practical for Ofsted in this contentious area? With everything else that is involved in an inspection, how can inspectors closely examine the sex education resources of any individual school? At present, local school governors and head teachers are responsible for making such decisions; they should be allowed to continue to do so.

I note that Amendment 80 would require Ofsted to report on how many parents are involved in the delivery of sex and relationships education but this is not the same as consulting parents as a whole. We genuinely need to empower parents. The government guidance issued in 2000 strongly advocates consultation with parents, yet all too often this does not occur. Yesterday there was a debate in the other place, in Westminster Hall; I recommend reading Commons Hansard, cols. 40 to 41WH, in which a lot of disquiet is expressed about this. Parents are busy people and trust schools to get on with teaching. However, many of them are unfamiliar with the sort of sex education resources being used. They need to be given a legal right to be consulted and

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to view resources in advance. This should not just be in guidance-it should be a legal right. In the mean time, this amendment is definitely a step in the wrong direction.

Baroness Massey of Darwen: Could I make two comments? First, would the noble Baroness agree that school governors have a significant role in overseeing teaching materials? Secondly, would she also agree that school inspections would protect children and prevent the materials that she describes getting into and being used in schools? That is the purpose of my amendment.

Baroness O'Cathain: I am very glad that the noble Baroness has said that. On the first point, I know quite a few school governors who will not have the time to look at these things in depth, so I am not sure that we could guarantee that some of these materials will not pass them by. On the second point, we know how infrequently Ofsted carries out the inspections in some of these areas so I would not want to leave it to that. There should be a legal requirement for parents to be able to see those materials.

Lord Clarke of Hampstead: My Lords, I hope that, at this late hour, the Government will firmly reject this amendment. I have no reason to quarrel with the integrity of the people who have proposed it, some of whom I have known for many years. I believe that they are blessed with the intelligence to put forward what they think is the right thing. Like wider roads, stronger beer, motherhood and apple pie, you could say snap to most of the amendment. What has been said about bullying and civic learning is absolutely clear. However, I have been here long enough to know that when someone says that something should be included in a Bill you have to be careful.

The amendment is actually saying that a school inspector "must", not "could" look at the type of school and what its policies are. That is where we have a problem. There will be some schools that do not have a policy on the subject that has exercised us for most of this debate. Most schools make up their minds through the governors and parents, or through whatever consultation they have, and they make their decisions. If the amendment is carried, the chief inspector must ask those schools the questions and will have to report on them. In most areas the report would be clear.

The right reverend Prelate the Bishop of Ripon and Leeds referred to the Government's intention. However, it was only two days ago that the Minister was able to tell the House, at col. 543 of the Official Report, that the Government had no intention of changing the policy on sex education. I thought to myself, "That is good. There is no need for the proposed new paragraph because we have heard a clear statement from the Government". I welcomed that at the time.

I am not influenced by hundreds of letters. I was not influenced by them on fox hunting and all the other issues that attract a deluge of correspondence. I admit that I did not receive much teaching because I left school at the age of 14, but I was taught to think

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for myself. It is wrong to put words in the Bill that could force people in certain circumstances to do things that they do not want to do. Therefore, in the event of a Division, I shall vote against the amendment-although reluctantly, because I recognise the integrity of those who are proposing it.

Lord Lingfield: My Lords, all of us sympathise with the noble Baroness, Lady Massey, regarding the appalling letters she and others of us have received from time to time and which completely miss the point of this debate. I do not think that any Member of your Lordships' House would think that a school ought not to have clear policies on bullying, the aspects of life dealt with in citizenship education, personal social, health and sex education, and even healthy eating. However, where I part company with the noble Baroness is that if these issues are a matter for close inspection by Ofsted, then the global views of that organisation-it has global views, although that may alter-become written in stone. Once these policies are apparent, schools often are scared to deviate in any way from what they come to believe is the letter of the law. The grades given by Ofsted to schools are very talismanic. The school is outstanding, satisfactory or merely good. Heads and governors become hugely anxious that an Ofsted report will say something detrimental and, if the buzz from other local schools already inspected is that it is important to tick the right boxes by adopting certain policies on sex education, certain aspects of discipline, citizenship education or even on the consumption of hamburgers and chips, sadly they will have those policies. We have seen far too much evidence of that.

We should leave these decisions entirely to individual schools. We should not want to take from the hands of heads, teachers and governors the right to make professional decisions in these areas of school life. Of course, every one of the items mentioned by the noble Baroness, Lady Massey, in her amendment is absolutely important, but we should trust the staff on the spot to deal with them and not impose upon the staff, as inevitably this amendment would, an Ofsted view-and that, sadly, means a government view-about these matters.

Professional teachers and their governors are best equipped to know of the appropriateness of, say, certain aspects of sex education, certain specifics for bullying, and dietary needs in their own schools, and it is the whole thrust of the coalition's schools policy that schools should be free to take the decisions that the situation demands. I ought to add that Ofsted entirely lost its way by trying to inspect-and, therefore, inevitably setting into concrete-so many areas of school life, with something like two dozen criteria. I welcome the Government's new view that schools should concentrate broadly on teaching, learning, discipline and leadership. If you get those right, everything else falls into place.

I should like to leave noble Lords with one thought. A paragraph or two that is passed by your Lordships can quite literally lead to 1,000 pages of bumph for an individual school. That is true. It is not necessary for Ofsted to inspect all these matters. I therefore oppose the amendment.

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8.15 pm

Baroness Northover: My Lords, I remind noble Lords that we are now on Report. We should not be exploring in enormous detail issues that were looked at in Committee. We should have just the distillation of where we have got to on this matter. I also remind noble Lords that we have some very important business to consider following this debate. I therefore hope that we can expedite things and reach a conclusion.

Lord Elton: Perhaps I may distil what my noble friend has just said with the Latin phrase-"expressio unius est exclusio alterius": if you have a list, the things that are in it matter and, by inference, the things that are not in it do not matter. Lists are very dangerous things.

Perhaps I may distil a parent's view on the particular aspect of the amendment on which your Lordships have chosen to concentrate. I think that the parent has the best idea of when a child is ready for the various stages of his or her understanding of sex, and the best way is to answer truthfully every question when it is asked and at the age at which it is asked-sometimes wrapped up a little. I do think-and your Lordships have generally expressed a view-that to teach advanced sex, if one may call it that, in primary school is entirely inappropriate. I add my name to the list of those who admire greatly what the noble Baroness, Lady Massey, has done in Parliament for young people over many years, and I have been rather feeble in supporting her. However, what she was not asked to do was a demonstration of the material that is not only available but recommended to be used in classrooms; and recommended not only by non-government bodies but by local authorities, sometimes at an age less even than that recommended by the publisher. It was hair-raising. I hope your Lordships will understand that for that reason anything that tends to open the door to that is to be resisted.

The noble Lord, Lord Clarke of Hampstead, put it succinctly-he distilled it. He said that the inference in paragraph (c) of proposed new subsection (5C) is that this subject should be taught in all schools. It is for that reason and with great reluctance that I oppose the amendment. Its intention is good and if it could be tweaked at Third Reading to exclude that inference, I would be friendly to it.

Baroness Crawley: My Lords, I rise in support of my noble friends in their amendment and acknowledge their tenacity in pursuing these important and sensitive matters. It is a welcome opportunity for me to leave the substitutes' bench, even for a brief period, in the passage of the Bill and to take part in this significant debate. A colleague said that timely substitution can often win matches. However, looking at our recent voting form, I am not going to hold out too much hope.

In Amendment 80, my noble friends Lady Massey of Darwen, Lady Gould of Potternewton and Lord Layard have called on the chief inspector to report on school policies on bullying, healthy eating, the delivery of citizenship education and the delivery of personal, social and health education, including sex and relationships education. In proposed new subsection (5D) in their amendment, they say:

"In reporting on the matters listed ... the Chief Inspector must take into account the age and stage of development of the pupils".

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That is very important for us to remember in the context of our debate tonight. There is no question in the amendment of any compulsion for inappropriately aged children.

Education for Life, with a capital "L", is crucial in our modern, complex, choice-led, resource-scarce society, but I know that the force of my noble friends' arguments will not be lost on the Minister, who carries his brief with enthusiasm and compassion. To quote the noble Baroness, Lady Walmsley, in Committee:

"Children may not go on to get first-class degrees but they will all have families, relationships, friends, personal finances, responsibility for their own health and safety ... and jobs".-[Official Report, 13/7/11; col. GC 344.]

Also in Committee, my noble friend Lord Layard quoted, at cols. GC 349 and 350, some revealing international evidence that personal, social and health education assisted children in their academic achievements. He said that it was not a case of either life skills or academic attainment but of both. Many noble Lords around the House are convinced by evidence such as this, by what parents themselves have said about PSHE and by the experience of PSHE in schools over recent years. I know that there has been a patchy nature to some of that teaching. One reason why my noble friends have tabled this amendment is to ensure that there is monitoring by Ofsted of the quality of that teaching and of the kind of training that must be given to those who deliver PSHE, whether it be generically through the school or as a separate subject.

Although we on these Benches welcome the end-of-consultation date for the department's internal review of PSHE-which I believe is 30 November, as elicited through an Oral Question from my noble friend Lady Gould of Potternewton-we still have a slight suspicion that this review set out to be one that featured a certain acreage of long grass. In that context, I ask the Minister why PSHE was removed entirely from the original independent review.

We do not have a lot of time tonight. I want to say simply that we have a generation of children who face enormous and complex problems when it comes to sexual and personal health pressures. These are young people who come up against enormous problems, such as HIV infection, drug abuse, teenage pregnancy, alcohol abuse, obesity and smoking-the list goes on. It cannot be the role of a responsible Government overseeing education to allow chance, discretion or benign neglect to be the official response to the bewildering array of problems that face young people. I was as shocked as I am sure many noble Lords were at the recent evidence of sexual cyberbullying and the increasing amount of cyberbullying that goes on, particularly of young girls. It is imperative that we give young girls all possible confidence to resist such pressure. How do we do that? We do it by arming them with clear and rational argument. As the noble Baroness, Lady Howarth, said, schools can make a difference. We also need to give young boys-here, I look towards the noble Lord, Lord Northbourne, and the work that he does-the confidence to act in a responsible way and to resist their own peer pressure. This is where PSHE comes in. The correct teaching of PSHE, with proper training, can only be a good thing for the next generation.

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Lord Hill of Oareford: My Lords, I start by welcoming the noble Baroness, Lady Crawley, from the substitutes' bench. As I am sure that she knows far better than I do, that is not all it is cracked up to be. There have been many times this afternoon when I would very happily have been sitting on the substitutes' bench. However, it is very nice to hear from her in such an important debate.

We have discussed these broad issues many times in this House, even in my short time here, but I think that we have covered the ground well again today with a great deal of thought and passion. It has been a good discussion, in which I hope we have managed to clear the air on some issues.

On the amendment, as we heard in the debate on the previous group, Clause 40 consolidates and refocuses the arrangements around core issues related to education in its widest sense, covering academic and personal development. The point has been well made that education is not solely about academic achievement but is about everything that makes children develop and, indeed, be happy. On the specific issue of children being happy-a point raised by the noble Lord, Lord Layard-inspectors seek the views of parents and children about the school, and in both cases views are sought on whether children are happy in school. It is right that that should be so, and this will continue to feature as a question to parents and children. I believe it is also the first question that is put to parents in Ofsted's new online questionnaire, which gathers parents' views outside inspections. I agree that it is important that those points are picked up.

The amendment moved by the noble Baroness, Lady Massey, seeks to add well-being to the main reporting areas for school inspections, including some specific aspects of well-being, which she set out for us. As I hope my noble friend made clear in her response to Amendment 77, although well-being is not included in the consolidated provisions set out in Clause 40, that does not mean that it is absent from the new arrangements. Indeed, we argue that having behaviour and safety as one of the four core areas-areas that we are trying to slim down so that there is more attention on a smaller number-shows how important well-being will be within the new arrangements. Child protection measures, which we have also talked about, will be a key element of the assessment of the effectiveness of leadership and management of a school. Safeguarding will be picked up there as well as through thematic surveys, as we discussed on the earlier group.

The reason that the Government are keen to change the focus of inspection is illustrated by Ofsted's inspection findings for 2009-10. In that year, teaching was judged outstanding in only 5 per cent of primary schools and 4 per cent of secondary schools. That is one reason why we are keen to make sure that inspection focuses on teaching quality. Schools that perform strongly in terms of pupil achievement also do well on wider aspects of well-being. However, the reverse is not always the case. For example, last year all primary schools that were judged outstanding for achievement were either good or outstanding in terms of healthy lifestyles, but for primary schools that were inadequate in terms of achievement, over half were good or outstanding on healthy lifestyles.

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I stress that inspection will focus on those key aspects of well-being. For example, inspectors will be checking to ensure that all pupils have an equal and fair chance to thrive and learn in an atmosphere of respect and dignity. Inspectors will consider pupils' behaviour towards and respect for other young people and adults, including freedom from bullying, and will also consider pupils' ability to assess and manage risk appropriately and keep themselves safe, including from some of the risks that we have discussed-those associated with new technology, substance misuse, knives and gangs, and those associated with relationships, including sexual relationships. This is set out specifically in the new evaluation schedule that inspectors will follow.

8.30 pm

Turning to the delivery of citizenship and PSHE, as the noble Baroness, Lady Massey of Darwen, will know better than me, those subjects are not routinely reported on in the current inspection framework. Like other subject areas, they are covered separately through subject surveys and that will continue to be the case. Aspects of PSHE and citizenship will also be picked up as part of the requirement to take into account the spiritual, moral, social and cultural development of pupils and in considering the breadth of the curriculum that is being offered by the school. In response to the question asked by the right reverend Prelate the Bishop of Ripon and Leeds, as I think I said earlier, there is nothing in the clause that changes the position on the legislation regarding sex education.

As the noble Baroness knows, we are seeking to remove areas of prescription from inspection so that the process of inspection can itself be more focused and rigorous. That point was first made by the noble Lord, Lord Hylton, and then argued very persuasively by the noble Lord, Lord Clarke of Hampstead. I agree with them. My noble friend Lord Lingfield reminded us of the effects of piling lots of words into legislation that can translate into thousands of pages of bumph. Although I cannot vie with my noble friend Lord Elton in speaking as easily as he can in Latin, I agree with the substance of his point about the sometimes unintended consequences of putting things in lists. We strongly agree that pupils' well-being is vital and we believe that the arrangements set out in Clause 40 will enable Ofsted to pick that up in an effective and proportionate way. I ask the noble Baroness to withdraw her amendment.

Baroness Massey of Darwen: My Lords, I thank the Minister for those words. As ever, he is sensible, courteous, wise and thorough. I know that he is well aware of the importance of these issues. Perhaps, yet again, he could meet a small group of us informally to talk about how well-being is to be delivered in a guaranteed way. I am happy to organise a group to do that.

We have had a very interesting, wise and dedicated debate on this issue, most of which I agree with and some of which I do not, but that is fine. I want to raise one or two issues. There is the issue raised by the noble Baroness, Lady Morgan, not in this debate but in the one before: if something is to be inspected, schools will be aware of it and will look at it. I have enormous respect for the noble Lord, Lord Lingfield. I was the

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person who welcomed him to this House, in very difficult circumstances-he knows what I mean. He made some very astute comments. Schools have to teach some things and I think that this should be one of them.

I say to the noble Lord, Lord Elton, for whom I have enormous respect, that parents sometimes feel somewhat uneasy about dealing with issues of sexual relations. He is nodding, so he must know, and I think schools can back that up. I am all for parental consultation and involvement, but I dealt with this myself when I was teaching and I agree that sometimes parents have difficulties dealing with the issue and children have difficulty talking to their parents about it. Let us leave it at that.

The quality of teaching materials and the fact that they are age-appropriate is important, as my noble friend Lady Crawley said. I have no intention of calling a Division at this time of night, when there is other important business to come. However, while I am sorry to end on a sour note, the noble Baroness, Lady Walmsley, made a very impassioned and indignant speech and I, like her, still feel indignant and distressed by letter-writing campaigns that impute things to us that we never intended. I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

Baroness Garden of Frognal: My Lords, I beg to move that further consideration on Report be now adjourned for the day. The usual channels have agreed that Report stage should continue on Tuesday 1 November and not later tonight.

Consideration on Report adjourned.

Community Legal Service (Funding) (Amendment No. 2) Order 2011

Motion to Annul

8.34 pm

Moved By Lord Bach

Lord Bach: My Lords, in moving this Motion, I make it crystal clear that we on this side believe that there must be cuts to the legal aid budget. Over the past 30 years or so, perhaps until a few years ago, the amount spent on legal aid went up a great deal, year on year, and that was particularly true in the criminal legal aid field until the amount spent on criminal legal aid, compared with civil legal aid, was totally out of kilter.

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As part of the necessary cuts, we, when in Government, took action to reduce legal aid spending and I do not apologise for that. Almost the last act we took in government, before the general election of 2010 was called, was to cut criminal legal aid advocates' fees in the higher courts over a three-year period. It was not popular but it was necessary. Incidentally, that gives the lie to the present Government's claim that we, the previous Government, were not prepared to tackle the deficit. If we had won that election, we would have cut further. My personal view is that there are large savings indeed to be made in our whole criminal justice system. In any event, we had published a White Paper, Restructuring the Delivery of Criminal Defence Services, which, if followed through, would have made considerable savings.

However, there are two considerable differences that exist between our proposals and those of the Government. First, Her Majesty's Government are intent on cutting legal aid much too far and much too fast. They have not given any-certainly not enough-thought to the consequences of their policies, either in human or in financial terms. That leads me on to my second point. One of the areas in which they have chosen to axe legal aid, take it out of scope altogether and make savings in fees, is precisely the wrong area of law. They intend to remove welfare benefits advice and representation at all levels, including up to the Supreme Court; employment advice; much housing advice and even more debt advice; and some community care advice and education advice-in other words, advice to the poor and the vulnerable. They intend to save the sum of about £50 million per year through those cuts. Today, of course, we are not strictly debating the rights and wrongs of such an approach, but we shall be able to do that in short order when the Bill, currently in another place, comes to this House.

Tonight we are debating an order that in one fell swoop cuts 10 per cent from all-I repeat, all-civil fees, including family fees. To describe it as a rough and ready figure would be a gross understatement. It is a crude and ill thought-out measure with no evidential justification whatever. Although I am particularly concerned with the 10 per cent cuts to social welfare and community lawyers, the lowest paid of all the lawyers who do civil and family work, I acknowledge the powerful case put forward by other civil and family lawyers to me as a result of my Motion being tabled. I thank all those who have made their case. There may well be champions for them tonight, although I know that because of the lateness of the hour, various noble Lords whose contributions would have been very welcome on all sides have not been able to stay.

Interestingly, there are no comparable cuts on the criminal side-for example, in the sister order that accompanies this particular statutory instrument. This shows that the Government are quite ruthless when it comes to civil and family legal aid and as soft as butter when it comes to criminal legal aid. It is as though they have no sense at all of the fantastic value social welfare law has in our society, allowing, at comparatively cheap costs, early legal advice for many of those who could not possibly afford to get it, with the result that issues are solved and the courts are not full of hopeless cases and litigants in person. Noble Lords will perhaps

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have seen the concern of some Justices of the Supreme Court in the newspapers this morning. For some reason, the Government are determined to decimate social welfare law and drive out those hard-working, dedicated and, I would argue, poorly paid lawyers who practise in this field.

Who are these lawyers? They are often the not-for-profit sector; they work in law centres, citizens advice bureaux and other advice centres. Some are solicitors and barristers in private practice. Many, wherever they come from, sacrifice more lucrative legal careers in order to practise this type of law. If they do not practise it, who will?

Their fees are fixed fees brought in in October 2007 and raised by 2 per cent in 2008 but untouched since then. They are not overgenerous. We as a Government brought in the fixed fee and it undoubtedly caused problems in itself. We set up a study with many experts from this area of law to look into those problems, and we produced a document entitled a Study of Legal Advice at Local Level in order to attempt to tackle them. We as a Government refused at any time, and particularly during the recession, to cut legal aid spending on social welfare law. We increased it significantly from £151 million in 2007-08 to £208.4 million in our last year, 2009-10. We increased eligibility by 5 per cent, bringing in 750,000 more people, and increased the number of new matter starts. I am proud of what we did.

The proposed fees are set out in Table 1 of the order, to be found on page 4. These cases often take many hours' work. They involve face-to-face contact. Often the lawyer, having seen the client, has to speak to third parties in order to resolve the problem. They are by no stretch of the imagination well paid. There is an exceptional threshold, but a case has to be very long indeed and very complicated to come into that category.

There are currently 52 law centres in England and Wales. They are not profit-making. They have had to make efficiency savings with the introduction of the fixed-fee system. Many rely heavily for the excellent work that they do on legal aid. Eight generate over 70 per cent of their income through legal aid contracts. None of these law centres has a 10 per cent surplus and at present they monitor cash flow on a weekly basis. There is no fat to them at all. All eight are at risk of closure. Four centres are particularly vulnerable, two in London and two outside the capital. Eight hundred thousand pounds is immediately to be taken from law centres' funding overall by the 10 per cent cut. In the medium term, the combined effect of the 10 per cent cut plus the proposed scope cuts is that £8 million out of the £9 million in legal aid contracts that law centres enjoy will disappear. Eighteen law centres out of 52 will just not be viable-it may be more. Where, I ask, will people go to in order to get their legal issues sorted out?

I could make the same points about CABs, the citizens advice bureaux, which have a very high reputation, as do law centres, in Parliament and outside. Obviously CABs do not rely so heavily on legal aid, but many still rely on it, and at a time when local authority funding is, frankly, declining, CABs will also close as a consequence

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of this order. Noble Lords will remember that a few months ago there was news from Birmingham about the state of CABs in Britain's second largest city.

Private sector firms that do this work also work on the same legal aid rates. All day long I have been receiving e-mails from solicitors who do this work. Sometimes, of course, other parts of these firms subsidise the social welfare law part of a firm, but I have been told that the amount of money that legal aid lawyers of many years' standing get per year would make an extremely interesting database. It is much less, of course, than that of a solicitor who does not do that work and compares extremely badly with other professionals-very badly indeed. Those who practise in this field and who do this absolutely invaluable work do not expect enormous rewards, but nor do they expect to be penalised even further.

I end with the story of Law For All. Law for All was in west London, and many noble Lords may have heard of it. It was quite a large organisation. It provided legal help in the fields of debt, employment, family law, housing and welfare benefits. It also provided representation for many people over many years. However, it has now been forced to close down in anticipation of the reduction in the fixed fee and, of course, the fact that 90 per cent of their work is being taken out of scope in the Bill that is currently going through Parliament. This is a tragedy for local people, who received legal help in 1,500 cases last year. The local authority in that part of west London is generous, but the Government's proposals have meant that Law For All has closed its doors. I have spoken this afternoon to the chief executive -or should I say ex-chief executive?-who confirmed that the 10 per cent cut that we are debating tonight and the taking out of scope have driven it to close.

It is important to point out that even where the area of social welfare law is not to be taken out of scope altogether, such as in some housing cases and some debt cases connected with housing cases, the order that we are debating tonight means that the continuing work in housing, for example, will be reduced by 10 per cent. All housing work that stays in scope will be affected.

Noble Lords may want to know how much this will save. It is estimated that the saving from the whole order, including the 10 per cent cut in civil and family legal aid across the board, is worth £45 million. The cuts as they affect social welfare law fees are all of £5 million. That is a figure that the Legal Action Group has confirmed. Of course it is a rough figure but it shows just how much or, rather, how little will be saved by this order. Saving £5 million in fees when Her Majesty's Government intend to spend £250 million on ensuring that there are weekly rather than fortnightly collections of rubbish is absolute nonsense. Have we not got our priorities entirely wrong?

In the Hansard published today, the Minister has answered a Question that I asked him. The information is that:

"In cash terms, spending on legal aid in 2010-11 was ... some £66 million (3 per cent) below provision".-[Official Report, 25/10/11; col. WA 137.]

Yet the aim is to save £5 million by cutting these fees by 10 per cent.

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I am not allowed to seek to amend this order and I therefore have to pray against it as a whole. Whether I vote against it tonight will depend on what other noble Lords say in the course of the debate that I hope will follow and, of course, particularly on what the Minister says. I beg to move.

Baroness Deech: My Lords, I declare an interest as chairman of the Bar Standards Board. The Bar Standards Board is the regulatory arm of the Bar Council, not the representative one, and I have no direct concern with the pay that barristers earn. My job is to further the objectives laid down for the Bar in the Legal Service Act 2007. There are eight in Section 1, including protecting and promoting the public interest, improving access to justice and encouraging an independent, strong, diverse and effective legal profession. What I have to say tonight when I encourage your Lordships to annul this order is based entirely on the application of those objectives in the regulation of the education and working lives of barristers.

Last Sunday, an advertisement appeared in the Sunday Times headed,

"Helping the most vulnerable in Society".

It was for a new chief executive of the Legal Services Commission, which hands out legal aid. I quote from the ad:

"Our role is to ensure through our providers that independent, high-quality legal advice and representation is available to vulnerable people who cannot afford it themselves. We enable people to protect their rights and defend their interests".

This order flies in the face of the aspiration in that advertisement and of the achievements of the objectives in the Legal Services Act and the profession.

Let me turn first to the effect it will have on women and black and ethnic minority barristers. This is a central plank of the work that we do at the Bar Standards Board in encouraging and retaining those very barristers. The effect of this order is to cut the rates payable in family advocacy by 10 per cent. It will be felt hardest by women and black and ethnic minority barristers, who are disproportionately represented in dependence on legal aid, while white men are the least dependent sector. There has been considerable government pressure to open up the legal profession still more to entrants from all backgrounds, albeit that it is already a very diverse profession.

Alan Milburn's report of 2009 singled out the legal profession in his survey of social mobility, even though the Bar and solicitors go to enormous lengths to explain and reach out to young people all over the country. The Bar has a record to be proud of, with over 15 per cent of pupillages going to black and ethnic minority students in a very competitive market. The cuts in fees in this order undo all that work, and make the Government appear two-faced.

Sixty per cent of the family Bar are women, and they do 66 per cent of legally aided children work. Half the family Bar relies on public funds for more than 60 per cent of its turnover. From their gross earnings, modest though they are, barristers have to pay overheads to chambers and clerks-typically 20 per cent-and in addition meet their own pensions, illness and professional insurance cover and expenses. The King's College London survey of barristers in 2008-09

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indicated that 80 per cent of them intended to abandon legally aided public work. This generation of young people have university tuition debts and huge fees at Bar school, and the modest but reliable income that was once their support in the early years at the Bar is now to diminish to such an extent that they cannot earn a living. There is no point in the great efforts put into outreach in this situation.

It continues on into the judiciary. The noble Baroness, Lady Neuberger, reported on judicial diversity in 2010. A less diverse profession means a less diverse judiciary, and fewer women judges. The diminution of the profession also means more litigants in person taking up more court time, not less, with problems being stored for several years down the line because they cannot be settled in court in a proper and timely way.

As with other demanding professions, women are being lost to the Bar after five to 10 years in practice, because of the costs of childcare. It is unaffordable and will be even more so. Twice as many women leave the Bar as do men for that reason. The cut in fees in this order will weaken retention. It will also damage the children who are the subject of court orders, because now the experts who give evidence in child cases are placed within this table of reduced fees, and the fees are set at below the level needed to maintain their practices.

The Government have given no evidenced reason for cutting by 10 per cent, and they have not waited for the outcome of the Family Justice Review, chaired by David Norgrove. In March of this year, its interim report commented on the adverse impact that cuts would have, the lack of data about case-handling and flow through the court, and the contribution made by the lawyers in the cases. In the 2009 study Family Law Advocacy by the very experienced researchers John Eekelaar and Mavis Maclean of Oxford University, it was shown that where lawyers were involved in family law cases concerning money and children, the majority of cases were resolved without court process or contested hearing. Even where the cases went to court, in the highly charged emotional atmosphere that one would expect, the presence of specialist family lawyers enhanced the prospects of resolution and shortened the court process, for they are minded to act collaboratively and in the interests of the children. Additional damage has already occurred to women and children through the closure, because of already instituted cuts, of the advice agencies Refugee and Migrant Justice, the Immigration Advisory Service and Law for All, as the noble Lord, Lord Bach, has just mentioned.

There are more constructive ways to save money. First of all there is too much judicial review, now used as the citizen's right of appeal. I was surprised to find when I was the Independent Adjudicator for Higher Education, running an alternative dispute resolution service for students, that those students obtained legal aid to challenge our decisions. There should be a push back against the notion that human rights mean that any and every decision can be judicially reviewed at great cost to the public. As for human rights, the real denial of those is to the middle classes, who are neither poor enough to be eligible for legal aid, nor can afford to go to law at their own expense. They are therefore the real victims, who cannot access justice.

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The other substantive reform needed is to bring certainty into the law of maintenance on divorce. An obvious model for this is the continental European system of community of property, to which the Scottish system is similar, which entails a fixed fifty-fifty split of post-marital property and little ongoing maintenance. Broad-brush justice it may be, but it is cheap and efficient to arrange. As long as we have our Rolls-Royce discretionary system of settling property issues on divorce, couples will continue to waste sums they can ill afford-sometimes amounting to as much as the property in dispute-on deciding who gets what.

This order should be annulled. The Government should await the Family Justice Review report and change substantive law to get a more efficient system without damaging the profession and its diversity.

9 pm

Lord Scott of Foscote: My Lords, I, too, support this Motion and agree with nearly all the remarks made by my noble friend Lady Deech. The statutory instrument is an extremely worrying document, proposing as it does to reduce by 10 per cent the remuneration payable to lawyers for legal services in cases covered by a legal aid certificate. What is the reason for this? The purported reason is set out in the Explanatory Memorandum. Paragraph 7.2 explains that,

That is an entirely acceptable proposition but I suggest that it is weasel words.

The reason is not that legal aid should not have been granted in a number of cases or that the remuneration assessed under the present regulations exceeds a reasonable charge for the work done or that the work done was unnecessary. The reason is that assistance is needed from the Ministry of Justice to help reduce the budget deficit. Why that could not have been explained as the reason in the Explanatory Memorandum, I know not. But the reason plainly is simply to assist in reducing the budget deficit.

Are others who do work for the Government as independent contractors, such as barristers or solicitors, to have their remuneration reduced to assist in reducing the budget deficit? I have not heard of such a suggestion. Why are legal aid lawyers being singled out for this attention? The effect of the 10 per cent reduction needs to be thought about. A number of lawyers may decline to accept legally aided work, bearing in mind that they will receive 10 per cent less than the sum which would have been reasonable remuneration under present standards. Why reduce what has been assessed as reasonable remuneration?

A second possible result has already been referred to by my noble friend Lady Deech. The number of litigants in person may increase and their presence in court almost invariably means that the case takes much longer. It often means that there will have to be adjournments. The judge with litigants in person before him, particularly if there is one litigant in person on one side and counsel for a paying party on the other side, is placed in the position of having to appear sometimes like counsel for the litigant in person. The

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judge thinks of points that the litigant in person has not thought of that might assist their case. The judge puts those points forward and then it appears that he is taking the side of the litigant in person. It is an unedifying spectacle but all judges will have experienced it. I have myself. Those are the possible adverse consequences.

What are the beneficial consequences? There would be a reduction in the legal aid bill, but that would depend on the additional costs occasioned by the number of adjournments that litigants in persons may bring about. The Law Society has circulated some documents suggesting that the notion that costs will be saved by these so-called reformed are misconceived. It may be only pie in the sky but the proof of the pudding will be in the eating and the disadvantages, I suggest, are apparent.

More important than the disadvantages to which I have referred is the effect on the civil justice system, for which I have a great affection. I have worked in it all my working life. It is not an optional extra but a system that behoves every government to supply for the benefit of all its citizens. Without a civil justice system self-help would become the order of the day in the settlement of issues between citizens. The civil justice system is there to settle issues between citizens and the Government. A feature of an acceptable civil justice system is that it must be accessible to all who need to use it. The legal aid scheme enables that to be achieved. Some types of litigation are removed from the benefit of the ability of litigants to conduct their cases under legal aid, but, broadly speaking, the legal aid scheme seeks to ensure that access to the civil justice system is available to all, which is right and proper. As I have said before, it is not an optional extra to be paid for only by those who can afford it.

The need for lawyers in that system is apparent also and those lawyers need to be paid for. The notion that that can be avoided by Government is no more realistic than saying that any other necessary service which it behoves Government to provide should be paid for by those who work in it. Are doctors and nurses supposed to contribute to the cost of the National Health Service? Certainly not. How is it different where legal aid lawyers work in cases where legal aid has been granted? A functioning and healthy civil legal aid system is essential. The implications of this statutory instrument are that the Government do not regard it in quite that light but think that these impositions can be made on the lawyers who work in that system in order to reduce the cost that would otherwise fall on government.

The 10 per cent reduction does not perhaps matter very much for senior barristers who have established a practice. They will have some privately funded work. They will have established good will among solicitors and clients that they can rely on in legally aided work as well. They will survive the 10 per cent reduction. The ones who will be struck by it and who may not survive it are the new entrants to the profession. Those men and women enter the profession with trepidation. It is a profession which provides no security. There is no firm that will pay you a salary that you can fall back on. You stand or fall on your own efforts and rely on the fees that you earn. Almost every entrant to the

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profession will wonder how long he or she can manage to continue before the financial difficulties become too great. The statutory instrument separates counsel providing advocacy services under the legal aid scheme into senior barristers who have been in practice 10 years or more and juniors who have been in practice less than 10 years. Those who have been in practice for 10 years or more can be expected to have built up some degree of practice and good will. They probably have some privately funded clients. They probably have some good will with solicitors who do legal aid work. They can probably avoid suffering too much from this 10 per cent reduction in their legal aid income. But what about those new entrants with five years' call or less? They have no security at all. They will have a meagre income. They will be hoping that it builds to something respectable. For many of them it does but for some of them it does not. Practically every barrister who enters the profession does so in the knowledge that he or she may be unable to afford to continue for long enough to establish a practice on which they can reasonably live. They may have to take a bolthole, so to speak, into employment in a solicitors' firm or in the legal department in some commercial company. The ones who have to take that course, who cannot wait the length of time necessary to build up a practice they can survive on, will be those who have no advantages of family support to help them in their difficult years. This statutory instrument is going to make those first five years much more difficult. Let us imagine somebody on an employment salary, not a very large one, being told that he or she must suffer a 10 per cent reduction for the future. There will be a drift away from the barrister's profession and into firms and commercial companies, to which I have already referred. It will do a disservice to the civil justice system, which depends on a stream of lawyers coming up through the system and becoming available eventually as potential judges.

I respectfully suggest that this is a bad statutory instrument. If my noble friend Lord Bach puts his Motion to a vote, I shall vote for it.

The Earl of Listowel: My Lords, I regret that I, too, must support the Motion of the noble Lord, Lord Bach, because of my concerns about the impact on child welfare. I regret doing so, because I know that the Government take the welfare of children very much to heart, and I thank the Minister for ensuring that domestic violence issues have been kept out of the scope of the order and that tandem representation of children in private law cases will be untouched.

I remind the Minister and other Members of the House of Article 3.1 of the United Nations Convention on the Rights of the Child, which states:

"In all actions concerning children"-

whether undertaken by legislative bodies or other institutions-

I should be very interested to hear from the Minister how the best interests of children have been considered in this move by the Government to cut legal aid.

Children need the best experts and lawyers in the immensely complex cases that they are often drawn into. My concern is that those experts will be driven out by the further cut in their finances. Expert witnesses

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to the family courts-including paediatricians, child and adolescent psychiatrists, educational psychologists, adolescent psychotherapists and independent social workers-are all subject to the 10 per cent cut, having already had their fees seriously cut. For clinicians working in London, the situation is worse, because London-based practitioners are allowed to charge only two thirds of the amount charged by those based outside London. As everyone knows, it is more costly to practise in London.

I am concerned that because of the impact on expert witnesses there will further delays for children in the courts and that poor decisions will be made. If a child is taken into local authority care and the wrong decision is come to, it will stay with that child for the rest of his life and possibly for the rest of his children's lives. We need to get those decisions right and we need the right expertise.

A further concern of the expert witnesses is that they cannot deal directly with the Legal Services Commission but have to work indirectly through solicitors. Perhaps the Minister could look at that, because it would certainly be an improvement if they could deal directly with the commission.

I look forward to the Minister's response. I hope that he can give some comfort to your Lordships.

Lord Marks of Henley-on-Thames: My Lords, I rise with a heavy heart to speak against this annulment Motion. It is with a heavy heart because, for all my professional life, I have been a devoted supporter of legal aid. I declare an interest as a barrister who over the years has done a great deal of publicly funded work. My first ever motion to a Liberal Democrat conference was on the promotion of legal aid. The Liberal Democrat Lawyers Association, which I chaired for a number of years, drank a toast every year at its annual dinner to the Legal Aid Fund, a toast proposed by a prominent lawyer. It is noteworthy in the context of today's debate that the toast was changed some 10 years ago to "justice for all", as an ironic response to cuts in civil legal aid made by the then Labour Government. I chaired a policy group entitled A Right to Justice, which helped to define Liberal Democrat policy on improving the legal aid scheme. My party has always taken as its starting point for discussion on this topic that access to justice is a crucial right and that legal aid funding provides a vital public service. There is no point in having rights enforceable at law if citizens cannot secure those rights in courts of law. I know from many years' experience of him that that is the position my noble friend the Minister takes as well.

However, while there was much to agree with in all the speeches that have been made so far in favour of the Motion, we live in difficult times. As the noble Lord, Lord Bach, fairly acknowledged, savings must be made. The provisions of the order are estimated to deliver £120 million of the £350 million of savings that the Ministry of Justice is required to make in legal aid over the spending review period from 2011-15. If we do not make those savings, matters can only get worse and later cuts will have to be deeper.

On a personal note, in Greece, my wife's home country, I have seen at first hand the effects of the extreme austerity measures cutting back public

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expenditure. The cuts could have been much less harsh had the Government there got a grip on the public purse earlier when all the signs of overspending were plain for all to see.

The need to make savings in the legal aid budget was recognised by the Labour Party in Government who made some 30 attempts to limit it, reducing fees in real terms across the piece as they did so, between 2006 and their leaving office. Furthermore, that was before the full extent of the deficit became apparent and the need for deficit reduction and cuts across the board became as clear as it is now. On 18 May 2009, the noble Lord, Lord Pannick, asked whether the Labour Government would maintain the rates of legal aid payments in family law cases. The noble Lord, Lord Bach, replied:

"Family legal aid costs have risen unsustainably from £399 million per year to £582 million per year in the past six years. We need to control these costs in order to protect services for vulnerable clients".-[Official Report, 18/5/09; col. 1201.]

In the consultation paper sent out by Ministry of Justice in July 2009, for which the noble Lord, Lord Bach, as legal aid Minister, was responsible, its proposals were described as follows:

"Our legal aid system is one of the best funded in the world. We spend around £38 per head on it annually in England and Wales, compared to £4 in Germany and £3 in France. Even countries with a legal system more like ours spend less; for example, both New Zealand and the Republic of Ireland spend around £8 per head".

I regard the fact that we still spend considerably more than comparable countries on legal aid as a matter for pride. That is still the case but it highlights the degree to which the legal aid budget must bear its share of the economies that have to be made.

The Labour Government's consultation paper continued:

"While we devote considerable resources to legal aid-£2bn annually-"

the figure is now £2.2 billion-

The Government's response to the consultation, published in January 2010 and signed by the noble Lord, Lord Bach, said:

"The Government wants to ensure that we rebalance the legal aid budget as far as possible in favour of civil help for those who need it most. But we also need to ensure that the resources we currently devote to civil legal aid are being targeted appropriately, and that the rules for granting funding are as robust as they need to be to ensure that resources are expended on meritorious cases ... The intended effects are to redirect resources onto higher priority areas, and to ensure that funding is only granted to eligible clients".

The words "rebalance" and "redirect resources" would inevitably have involved real terms reductions in fees. Labour's 2010 election manifesto said:

"To help protect frontline services, we will find greater savings in legal aid and the courts system".

When this Government's consultation paper on legal aid was published, the noble Lord, Lord Bach, very fairly said, as he said tonight:

"It would have been hypocritical of Labour to say we would not cut anything. If we had, we would be rightly criticised".

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