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Further Education and Training Bill [HL]

moved Amendment No. 23: 23: Clause 17, page 11, line 39, leave out from ““institution”” to ““is”” in line 41 The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 24, 25, 26, 36, 37 and 39 in this group, all of which refer to Clauses 17 and 18. All my amendments, save Amendment No. 39, are the same as those laid in Grand Committee, and I am afraid that my views have not changed, despite the Minister’s careful reply on that occasion. Amendment No. 23 would remove the reference to, "““significantly less well than it might in all the circumstances reasonably be expected to perform””," as we believe that this is an intervention too soon, too far and too woolly. Amendment No. 24 would allow the council to give the corporation of a college advice but not directions. Amendment No. 25 would remove the power for the LSC to require a governing body to dismiss a principal or other senior member of staff. Instead, Amendment No. 26 would insert a statutory procedure through a model similar to that which applies to schools that are failing, whereby a written report of the LSC’s concerns would be sent to the governors and the principal, and the governors would have to reply to the LSC with their plan of action. Frankly, if this procedure were in place, I could not envisage any need for the LSC to use the powers that the Government want to give it. Indeed, I believe it is only right that such a procedure should be laid down in statute. Amendments Nos. 36, 37 and 39 would insert the appropriate similar amendments into Clause 18, which relates to Wales. We believe that these powers are neither appropriate nor needed in the hands of an unelected body whose job is to fund and organise the provision of further education. Despite the Government’s amendments, which state that the LSC and the Welsh Assembly Government must, after consultation, publish statements on how they plan to use the new intervention powers and lay them before the Secretary of State and Parliament or the Welsh Assembly as appropriate, we are still not happy with the extent of these intervention powers. We have therefore sought in this group of amendments to modify the worst of them. We acknowledge that the Government have made clear the circumstances in which the LSC mightdirect a governing body to dismiss a senior member of staff. However, there is no evidence that in these circumstances governing bodies would not act by themselves without needing the LSC on their backs. College governing bodies take these matters extremely seriously, and there is no evidence that a college has not acted decisively when it has needed to. In a sector of around 400 institutions, it is inevitable thatsome will perform less well than others. Around70 principals leave their post each year, but most leave to take up a post elsewhere or to retire. A small number are asked to leave by their governing body. In cases of serious mismanagement or college failures, governing bodies work with the LSC and an interim principal until a new person can be appointed. The Association of Colleges has estimated that25 financially weak colleges were merged with stronger neighbours between 2000 and 2005—a period, by the way, of enormous improvement in the whole sector, matched by no other public service. Only on two occasions in the past 10 years has a whole governing body resigned. While considering the Government’s proposal to take intervention powers from the Secretary of State and give them to the LSC, it is worth noting that the Secretary of State has not found it necessary to use these powers since they were created by the Further and Higher Education Act 1992. Noble Lords will recall that another of our concerns about Clause 17 is that it interferes with employment law and the contractual arrangements between a college corporation and its employees.The intervention of the LSC or Welsh Assembly Government could make it more difficult for governors to take the appropriate action, and it could certainly open them up to legal action and possible compensation for breach of contract. The Government’s response to that issue in the guidance is that they, "““would expect the college to have a strong evidence base on which it would be able to rely in the event of a claim for unfair dismissal being brought before an employment tribunal””." Any college that has such an evidence base will itself dismiss the person concerned and does not need the LSC to instruct it to do so. If it has not such a base, the person should not be dismissed in any case—either by the college independently or on the instruction of the LSC. Another concern is that the Bill gives the LSC new powers but does not specify how responsibility for failure should be attributed to the various senior members of staff. The absence of a real appeals process would make it impossible for the college to comply with the statutory disciplinary and dismissal procedure in any meaningful way, as any representations that the individual might make to the college would make no difference. The decision will not be made by the college; it will be made by the LSC. Much of the money spent by colleges is public money, and none of us condones bad practice or poor quality in teaching or management. Of course the LSC has a role in supporting and advising colleges that are underperforming. In extremis, there are still the powers of the Secretary of State. There is no evidence that we need to transfer those powers to an unelected body. As we are talking about public money contributed by the taxpayer, it is only right that someone who has been elected and can be dismissed by the same taxpayer has the powers of intervention. I beg to move.