Apprenticeships, Skills, Children and Learning Bill

My Lords, I am grateful for the amendments that the Minister proposes, but to my mind they do not go nearly far enough. The Minister talked about "have regard to". In the briefing provided by her department on Clause 128(6), which looks at "have regard to" from the other point of view—the pressure put on Ofqual by the Secretary of State—her officials quote: ""The phrase ‘to have regard to’ means take into account. It does not connote slavish obedience or deference on every occasion. It is perfectly possible to have regard to a provision but not to follow that provision in a particular situation"." That is exactly the trouble that I have with this clause. We are looking for the right balance of power between a local authority and a sixth-form college or further education college. It is in many ways an unequal balance, in that the local education authority has a great deal of influence over funding and the sixth-form college may, as many have in their years of independence, have grown not so much out of as way beyond the local authority in which they happen to be situated. They may provide services that do not accord with what the local authority thinks should be done locally or may provide them in a way that the local authority does not agree with. There are lots of reasons why a local authority might want to bring a sixth-form college to heel and to make it conform more closely to the local authority’s view of how education should be provided in its area. I want the sixth-from college to be able to resist that. What the Government have done in drafting this section of the Bill is to bring over verbatim, or close to verbatim, the arrangements that existed between sixth-form colleges and the LSC. In those circumstances, there was not a great deal to worry about. The LSC did not have an agenda of bending sixth-form colleges to its will, and there was no basis on which it should have done. It was a national body with a national agenda and no reason to get involved in the detailed decisions of an individual sixth-form college, so the triggers that were put in place to allow intervention by a local authority are extraordinarily light. It is anything that the sixth-form college does to transgress any law or regulation. The department tried to give me comfort on this, by saying that it thought most sixth-form colleges were, at all times, perfectly law-abiding. If even Ministers cannot keep to regulations, how should we expect sixth-form colleges to do it all the time? The complexity does not just apply to educational legislation—which I am sure that they keep a close eye on—but to health and safety, discrimination and other any aspect of national legislation. As soon as the college transgresses in any way, the trigger is tripped and the local authority has the right to intervene. It has not just the right to stand there and say, "Ah, you’ve got to get yourself in order", but to take over the college, and the barriers that have been put in place for that are very slim. Yes, there is a convention between local authorities and sixth-form colleges at their organising bodies’ level, but that has no binding effect on local authorities or colleges in any individual case. Yes, there are provisions in administrative law, where I do not pretend to be an expert but, from reading the extensive and helpful advice provided by the noble Baroness’s department, those appear to be pretty weak in practice. This will result in individual cases—not, obviously, in every case, or in most cases—where the local authority will be able to take effective control of a sixth-form college because it has the power to take actual control whenever it wants. That is a very undesirable state of affairs and will lead, over time, to some very undesirable outcomes in the independence of sixth-form colleges and their ability to do the best by their students. I am not comforted by what the noble Baroness has said, and if I receive appropriate comfort from my Front Bench then I shall certainly want to test the opinion of the House.