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Further Education and Training Bill [HL]

moved Amendment No. 40: 40: Clause 17 , page 11, line 38, leave out from ““institution”” to ““is”” in line 40 The noble Baroness said: I shall speak also to Amendments Nos. 42 to 44. Clause 17 raises the same sort of issues as those we have been discussing. However, rather than being about transferring powers to the LSC to establish and dissolve further education corporations, the clause is about the power of intervention in the management of such institutions. Amendment No. 40 would remove the power in the Bill for the Learning and Skills Council to intervene where an institution was performing less well than it might be expected to do in all the circumstances. Amendment No. 42 would insert a right for the Learning and Skills Council to advise governors of further education institutions rather than to direct them. Amendment No. 43 would remove from the Bill the power of the LSC to order the dismissal of college principals. Where the council has any serious concerns about the performance of the principal of a college of further education, Amendment No. 44 requires that it must make a written report of its concerns to the chair of the governing body, with a copy to the principal, and the chair of the governing body must respond appropriately outlining what action he or she intends to take in the light of the report. The proposed power of intervention in the Bill is an infringement on the rights and responsibilities of governing bodies, which are made up of dedicated individuals who carry out their responsibilities with great skill and passion for their colleges. Indeed, my noble friend Lady Sharp is such a person as a member of the Corporation of Guildford College. The further education White Paper states: "““A college, led by its governing body, is responsible for determining its own mission, managing its own affairs, meeting its statutory responsibilities and improving its own performance””." We are very much in favour of quality assurance mechanisms but we do not believe that it is appropriate for these powers to be taken away from the Secretary of State in the first instance and given to the unelected Learning Skills Council, although we accept that the Secretary of State has a reserved power. There is something to be said for the fact that the Learning and Skills Council is closer to the colleges than the Secretary of State and probably understands such organisations better, but were the Secretary of State to operate these powers of intervention, he or she would inevitably seek the advice of the Learning and Skills Council. We believe that the power should remain solely in the hands of the Secretary of State. This power is an unprecedented interference in the affairs of an independent institution. There is no parallel power in other parts of the public sector, including schools or higher education institutions. Even in a politically charged policy area such as crime, the Home Secretary does not have equivalent powers. If he were dissatisfied with the performance of a chief constable and wished to direct a police authority to remove him or her, he would still have to draw up procedures to do so with the representatives of police authorities and senior police officers. He would have to state his intention of doing so in writing to the chief constable, set up an inquiry and allow both the authority and the chief constable to make representations. Clause 17 gives the LSC more powers to end the careers of college principals of notionally private sector organisations than the Home Office has over chief constables. I have looked at the guidance and I cannot see any argument contrary to that statement. The intervention of a third party—the LSC—into the relationship between a governing body and the principal—an employee—could make it more difficult for governors to take action, particularly as it might create grounds for an individual to argue that they had been unfairly dismissed. The Explanatory Notes to the Bill admit that if the LSC uses its intervention powers, the dismissed principal would be free to take a legal case under employment law in a petition for judicial review or under the Human Rights Act 1998. Who will pay the compensation if an individual wins his or her case, the college or the LSC? The Bill specifies the circumstances in which it would be legitimate to require the dismissal of a senior post holder when a governing body is guilty of mismanagement or the college is underperforming, but there is nothing in the Bill to say that the principal or other senior post holder, whoever we happen to be talking about, has to be the person responsible for the college's underperformance. There are many reasons for a college's underperformance and it is not always the fault of the leadership of the organisation—very often it is, but not always. Besides, there is actually no definition of, "““significantly less well than it might in all the circumstances””," in the Bill, hence our Amendment No. 40 to remove that phrase. I have some serious questions for the Minister. Will the LSC be able to order the dismissal of senior post holders without giving them the notice to which they are normally entitled under their contracts of employment? Will the college or the senior post holder have the right to make representations to the LSC about the proposed direction? I wondered what would be the rights of the college or senior post holder in question to make representations about a notice to improve or a direction to sack a member of staff, so I consulted the recently published guidance and found that if a person or a college wants to do that, they must follow the published process for making a complaint about the council's administration. Committee Members may ask who will determine the fairness of the direction in question—an independent body? No, it is no less than the council's solicitor, its complaint administrator or one of the national regional executive directors. We moved away long ago from having police forces investigating themselves, for obvious reasons, yet apparently, as I read the guidance, the LSC will be doing just that. What is worse, when we come to looking at whether there is underperformance, the long courses will be evaluated on results and not by Ofsted inspection. The process contravenes natural justice and needs a good deal of improvement. I am also concerned that a college governing body that has been directed to dismiss an employee may not be able to comply with the statutory dismissal and disciplinary procedures in any meaningful way, because any representations the individual is able to make to the college would not alter the decision since that decision rests with the LSC. We need to ask where the local authority comes into this. After all, it is responsible for the 14 to 19 year-olds who attend the college. They would be impacted by any changes in the leadership of the college as a result of this sort of intervention action by the LSC. I must also ask the Minister why we need this provision. The quality of provision and leadership in the colleges has proved over the past few years to be at least as good as that in the universities or in the schools. Colleges have acted decisively in response to critical inspection reports. They have raised success rates from 59 per cent to 76 per cent and have met every target set for them by the Government. I am very pleased to note those figures because the vast majority of colleges would not fall foul of the guidance, which indicates that underperformance means anything less than a 50 per cent success rate in exams on long courses. Hopefully, we would not be talking about many colleges here, but it is important that we talk about these principles. The Office for National Statistics defines colleges, like universities, as ““private-sector institutions””. Although colleges receive 80 per cent of their funding from public sources, their current private-sector status offers advantages for both the Government and for colleges. We are concerned that these might be lost as a result of these new powers. What is the alternative? Many of us believe that it is always best to work with an organisation if you want to affect change from the bottom, so it would be better to work through the governing body rather than by directions coming from the LSC. If the Government are interested in this approach, they could replicate the model already used in the school system. Regulation is passed under Section 35 of the Education Act 2002. School Staffing (England) Regulations 2003 give a local authority the power to send a written report of its concerns to the chair of the school governing body. This power is made effective by the associated duty on the chair of governors to respond in writing to the local authority setting out what action the governing body proposes to take; hence our Amendment No. 44, which sets out a similar model so the local council has a stronger steer to intervene when things go wrong. But the final decision rests with the governing body. That provision would avoid all the legal problems that we foresee in Clause 17. Our proposed amendment replicates the text of that part of the School Staffing (England) Regulations 2003 and makes it applicable to the further education sector. We think that that is a more positive and constructive way forward when addressing the underperformance of colleges. I beg to move.