My Lords, that was a very interesting and wide-ranging debate on a number of important issues, which I will try and cover in my remarks. I turn first to Amendment 146A from my noble friend Lord Lucas, which would exempt settings that are classified as being a family from regulation under the Education and Skills Act 2008. I can assure my noble friend that the Government already, and will continue to, consider private arrangements where parents home educate their own children only as exempt.
Turning to Amendment 146B from the noble Lord, Lord Knight: we consulted in 2020 on defining full-time provision as being 18 or more hours per week. However, we concluded that this approach would encourage gaming of the system, allowing settings to opt out of regulation by operating just short of the threshold. We heard powerfully from the noble Lord, Lord Mendelsohn, and the noble Baroness, Lady Meacher, about how there are settings determined to do just that. So, guidance will be produced to help settings to understand where the registration requirements apply.
Amendments 147 and 149 from the noble Baroness, Lady Meacher, and the noble Lord, Lord Storey, seek to register part-time provision and other unregistered provision where local authorities place children. The noble Lord, Lord Berkeley, also highlighted some of the cultural sensitivities that arise in addressing some of these settings. Unregistered alternative provision, as the noble Lord knows, can provide a valuable hook back into learning for children who have complex needs or require bespoke packages. Its use, though, as the noble Lord knows extremely well, requires extremely careful planning and oversight. We absolutely agree on the need to act to address poor commissioning practice, and I know my officials would be very keen to meet with the noble Lord if he would be agreeable to discuss this further. As we set out in the recent special educational needs and alternative provision Green Paper, we are absolutely committed to strengthening protections for children in unregistered alternative provision, and we will be issuing a call for evidence before the summer on its use. I know the noble Lord will contribute to that.
I turn to the points raised by the noble Baroness, Lady Meacher. Regulating part-time settings would address the risk that currently unregistered full-time provision is split into separate settings. I know this is
also a concern of the noble Lord, Lord Mendelsohn. However, most part-time provision does serve a legitimate purpose, and this risks interrupting the support and education that those settings provide, where it is provided legitimately. We believe that automatically applying the regulatory regime for independent schools to therapeutic and part-time settings would be inappropriate and likely to introduce unnecessary burdens. However, we will look at this again in the light of the call for evidence.
On Amendment 152 from the noble Baroness, Lady Meacher, Clause 63 introduces, as she described, new search powers. The powers as drafted aim to balance the need to enable Ofsted to search effectively with the safeguarding of civil liberties. This amendment would risk disrupting that balance. I know that the noble Baroness’s concern is that one would lose the element of surprise if inspectors went to an address and then had to go away and get a warrant, but requiring warrants before people’s homes are searched, particularly where consent is not given to enter the property, is a proportionate safeguard.
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However, we do believe that the element of surprise can be maintained, because the Bill allows for pre-emptive warrants if one of three conditions are met. Those conditions are that:
“consent to enter is unlikely to be given unless a warrant is produced”,
that
“it is not practicable to communicate with any person entitled to grant entry”,
or that
“seeking consent to enter may frustrate or seriously prejudice the purpose of entering.”
So I think we have the grounds, in the context the noble Baroness describes, to use pre-emptive warrants. I know that when we met, she was also worried about the capacity of the courts to cope with those applications. Ofsted plans its inspections carefully and will be able to apply to the court in appropriate time, before a warrant is required. Courts hear applications for warrants every day. I think the phrase the noble Baroness used was that the courts would get “snarled up”, but we are confident that that would not be the case. I hope that addresses the points raised in her amendment.
Turning to the points raised by the noble Lord, Lord Mendelsohn, in Amendments 171D and 171C, of course the Government agree with him, in the spirit of Amendment 171D, that all children have the right to receive a broad education and that schools should be held accountable for this. All registered independent schools that are charities are required to provide a broad education, and the inspectorates and the Department for Education can hold them to account for this. Settings which are not registered independent schools may have charitable status, but they of course need to show that they meet their charitable objects, including through the reporting each year to the Charity Commission that all registered charities have to undertake.
Where a charitable setting is operating in such a way that it is providing a full-time education to sufficient primary or secondary pupils, Clause 56 would require
it to register. It can then be held to account to provide a broad education, just as with other schools. We do not see the need to remove charitable status from charities that are not operating as schools. They may have some legitimate involvement in the education of primary or secondary-age pupils, and they could have a range of other valid charitable objects. But I know the purpose of the noble Lord’s amendments—I think the word he used was “anti-avoidance”.
The Government consider that Amendment 171C is unnecessary. Ofsted can already inspect settings reasonably believed to be operating full-time unlawfully and without registration. That would permit investigating the activities at a number of premises where inspectors reasonably believed on the basis of evidence that they were really operating as one institution. That evidence might relate to individuals acting in concert, and other evidence—