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Further Education and Training Bill [HL]

In terms of the role that the Learning and Skills Council plays in acting on behalf of the Government in these respects, we believe it would be appropriate that, except in the very extreme circumstances in which the Secretary of State felt that the council was not acting reasonably, these powers should be exercised by the council. As well as the role of the Secretary of State who has ultimate powers of direction, the proposed new Section 56B also requires the Learning and Skills Council to prepare and publish a statement of its policy with respect to the exercise of its powers under new Section 56A. It will be the duty of the council to have regard to its policy and any guidance given to it by the Secretary of State—which, in response to the noble Baroness, Lady Sharp, is a further role for the Secretary of State—before exercising these powers and to keep the policy under review. Until the Bill receives Royal Assent, the Learning and Skills Council’s guidance document Identifying and Managing Underperformance gives an overview of the processes that will be used to identify and address underperformance and inadequate provision. A copy of this document is available in the Library. The concept of underperformance, set out in proposed new Section 56A(2)(d), inserted by Clause 17, is not a vague one. The Learning and Skills Council’s intervention policy spells out in clear and objective terms the circumstances in which institutions will be held to fall into this category. Paragraphs 10, 11 and 12 of the document set out those criteria. Paragraph 12 states: "““Withdrawal of LSC funding, restructuring or intervention options will be considered in cases of outright failure, defined as those where … Ofsted has judged a provider as inadequate … 25 per cent of more of the provision on offer has failed to reach the minimum performance levels defined in this document … financial viability is seriously at risk … underperformance is identified and improvement does not occur within the specified period … Apprenticeship provision does not meet minimum performance levels””." This is not in any way an arbitrary power. The document sets out the circumstances in which it could be exercised. Even then, in the overwhelming majority of cases, we would expect to see these issues resolved by the college operating through its normal processes. Clause 17 empowers the Learning and Skills Council to direct the dismissal of a college principal or senior staff. This is not a wide-ranging power by which the Learning and Skills Council could undertake a wholesale removal of college staff. In response to the noble Lord, Lord Dearing, and the concerns that he raised, this could be so interpreted. I stress that it is strictly limited in scope, enabling the Learning and Skills Council to direct dismissal only where the governing body has the power to dismiss under its own institution’s articles of governance and only in cases of serious underperformance. In colleges, it would affect only a small number of senior staff. We accept that the oversight of the principal and senior staff of a further education institution is the responsibility of the institution’s governing body. On the evidence of recent years, we are satisfied that the vast majority of governing bodies act swiftly and decisively on their own initiative to remove senior members of staff who are ineffective, of whom there are relatively few in the further education system. However, we also consider it important that the Leaning and Skills Council should be able to tackle effectively any cases where poor college management is letting down learners and employers and where governing bodies fail to take the necessary action to rectify matters on their own initiative. As to the comparison with schools, an issue raised by the noble Baroness, Lady Walmsley, there are powers for very significant intervention in schools on the part of their own regulatory and oversight body—the relevant education authority—including, for example, the power to suspend the delegation of funds to a governing body. I stress that with that power goes the full staffing responsibilities, which transfer to the local authority, and the decisions which can be taken about the future of the head teacher and senior staff. Although we have to make allowance for the fact that the precise regulatory structure is different, these are not powers without precedence in other parts of the education system where the value for money of public funds is at stake. Amendment No. 43 would prevent this important part of the improved powers of intervention. We want to place decision-making powers as close to the front-line delivery as possible. As the body responsible for planning and funding high-quality education and training for young people and adults, the Learning and Skills Council, we believe, is best placed to hold these powers. The present arrangements distance the power to intervene from the body best placed to exercise it. The noble Baroness, Lady Walmsley, suggested that these provisions might undermine the position of college governing bodies in leading their organisations and might impose a third party in the employment relationship with college leaders. I stress that the Government wish to support college governors in leading their institutions effectively and have no intention of making things more difficult for them. As the LSC’s recent publication, Identifying and Managing Underperformance, made clear, the LSC would work through an intensive dialogue with the provider concerned before even issuing a notice to improve, which would itself be only the first stage of the process. Governors would have the opportunity to take action to address underlying problems before there was any recourse to these powers on the part of the LSC, and we are confident that most governing bodies would want to do so. In the extreme case where a direction was given under new Section 56A, the termination of the employment relationship and any financial consequences would remain the responsibility of the college concerned. I believe that meets one of the points raised by the noble Baroness, Lady Walmsley. The intervention policy required to be prepared and published by the Learning and Skills Council under new Section 56B will set out the operational procedures surrounding the exercise of these powers. This policy will be the subject of consultation with providers and, amongst other things, these procedures should ensure that colleges act consistently with their legal responsibilities as employers in cases where a direction to dismiss would, in practice, be given at the end of a process based on clear evidence. The procedure envisaged by Amendment No. 44 is very similar to the arrangements set out in the Learning and Skills Council’s intervention strategy, to which I referred earlier. The Learning and Skills Council will, in all cases where it has concerns regarding levels of performance, issue a formal notice to improve to the chair of governors and the principal. This notice will be a letter which sets out the conditions for continued funding and the timeframe in which improvements are required, usually within a minimum period of 12 months. Of course, in the overwhelming majority of cases such improvements would be made in that period. We would expect the college to set out its actions to address the notice conditions in its development plan and to inform the LSC. In most circumstances, the LSC would also ask the Quality Improvement Agency to work with the college to help make the required improvements. We believe that the underlying intent of this amendment is to ensure that the chair of governors and the principal are fully informed of the LSC’s concerns and are given the opportunity to remedy them and respond appropriately. We fully support that intent. However, we believe that the administrative details for such arrangements are more properly cited in operational guidance rather than in primary legislation. The procedures envisaged by the noble Baroness are close to those that we envisage ourselves. In summary, I stress again that we see this as a last resort intervention. We expect the LSC to exercise these powers only in exceptional circumstances where all other options have failed and where the relevant governing body has not taken the action required. It is the role of the governing body to lead the college and secure the best interests for its learners. We believe that having the powers available to the LSC and the possibility of them being exercised would in some cases be the trigger for governing bodies to act themselves more expeditiously. The proposed amendments to Clause 17 would deny the Learning and Skills Council the tools to secure improvement in a sufficiently rapid and robust manner and in the interests of learners and employers. Therefore, we do not believe that it would be appropriate to insert them.