Lord Nash
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Childcare Bill [HL]
Lord Nash Excerpts(8 years, 7 months ago)
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The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)
My Lords, it might first be of benefit to the House if I make a few points. I would like to thank noble Lords for their support during the passage of the Bill so far. I would particularly like to thank noble Lords whom I have met since Committee. I have found these conversations extremely helpful and I hope they have, too.
The Government are committed to supporting working families. That is what the Bill is about. It enshrines that commitment in law, with a new duty on the Secretary of State to secure 30 hours’ childcare for working parents of three and four year-olds. As the Secretary of State set out last week, the Department for Education’s focus should not be stakeholders or vested interests; our focus is unashamedly on children and their parents. The Bill makes that clear.
I have listened carefully and with great interest to the concerns noble Lords have raised throughout the passage of the Bill. As the noble Baroness said, I undertook in Committee to confirm a number of details ahead of Report. I hope that the package of support published earlier this month, the policy statement and the government amendments I have tabled, deliver on those commitments. I have had feedback from noble Lords across the House that this was helpful. I have listened to the debate on ensuring that Parliament has the opportunity to provide appropriate scrutiny on the detail of secondary legislation. We listened and tabled amendments in response.
Subject to the debate today, the first set of regulations made under the Bill will be subject to affirmative procedure. The amendment in question was informed by the first report of the Delegated Powers Committee and I thank the committee for meeting again on Monday to consider our proposed changes to the Bill. I am pleased that it welcomes the Government’s efforts to respond to early criticisms. The noble Baroness rather overstated the case by saying these were scathing, though I note that there are areas where the committee would like us to be clearer in our intentions. I will address these points at the appropriate time during today’s debate.
Noble Lords raised concerns about the detail and breadth of the Bill. We listened to and consulted parents and providers over the summer. On 2 October, we published a policy statement setting out the key milestones up to implementation in 2017, the delivery model and details of who will be eligible for the extended entitlements. Our amendments reflect those new details.
In Committee, noble Lords also understandably asked for reassurance on the quality of the childcare that children will receive under the Bill, and in our policy statement we have made clear that the quality of early education and childcare and the welfare of children remain paramount. I believe that the further things that I will say today in response to amendments on, for example, staff to child ratios, will provide even more reassurance.
Turning particularly to matters relating to this group of amendments, in Committee many noble Lords raised a number of questions about the funding review, which is the most comprehensive national review of the funding of childcare ever conducted. I will respond fully to the debate on this shortly. However, I take this opportunity to make clear that we have listened. In response, we published the terms of reference for the funding review, the findings of the first part of the review and the call for evidence, which received more than 2,000 responses. Yesterday, I was pleased to host a very informative meeting for Peers to meet the Minister for Childcare and Education and the department’s chief analyst. I would be very happy to host another such meeting following the spending review. We have no interest whatever in producing a funding regime which does not work for providers. We have substantially increased the amount of childcare over the last five years successfully, and we are confident that we will do so this time.
This Government are spending considerably more than any other on childcare, and we want to give more working parents choice and flexibility about the childcare they access. We have already heard from working parents, employers, representatives from the childcare sector and unions, and received nearly 20,000 responses to our public survey over the summer, which showed that parents strongly welcomed the new entitlement. Further support for the entitlement has been demonstrated by the poll of parents carried out by Netmums, which showed that the Government’s offer of more childcare is wanted, needed and eagerly anticipated. The survey also suggests that the reform will encourage more parents to work more hours.
I urge the House not to seek to delay this entitlement for working parents. Parents are demanding of us, and in response we should move quickly to put the new entitlement in place. During the election, we committed to 30 hours of free childcare, and we were the only party to commit to a review of childcare funding. We are now challenged on moving too quickly with some aspects and too slowly with others. Providers are keen for legislation. More than 1,000 providers have already come forward to ask to be involved in early implementation.
As many will understand, it is important that we give providers, local authorities and parents time to prepare for this substantial change. We want to move the Bill forward and take the next steps with regulations, consultation and, very importantly, early information. As the shadow Secretary of State for Education said recently, we now need those policies to be turned into reality. I completely agree.
Baroness Pinnock (LD)
My Lords, I thank the Minister for the statement he has just made, for the policy statement which he provided us with over the summer and for the briefing yesterday, which demonstrated that detailed work is being undertaken to understand the different business models of providing for childcare.
However, one element fundamental to ensuring that 15 hours of free extra childcare per week can be delivered at high quality is funding. In Committee, we were assured that that information would be available prior to Report to enable a full understanding of the Government’s commitment in terms of the amount of funding. At that stage, the Minister gave a commitment that the Government would announce by Report the findings from their call for evidence as part of the funding review, so that we could have details of the delivery model based on the principles laid out. Unfortunately, that is not available.
Waiting for that information will not cause a delay. The background analysis of the information has been carried out. We heard about it yesterday, and very good it is too. But the figures have not been put into the crunching machine, so we do not know how much will be available to fund this important element of improved childcare—increased hours—that we all welcome. I do not see how, as Members of this House, the role of which is to scrutinise legislation to try to improve it, we can fulfil our responsibilities unless we have that information. We support the Bill, but the funding is fundamental.
All through the progress of the Bill, on all sides of the House, we have made the point about the lack of information—both on the regulations and on the amount of funding that would be available. We have tabled an amendment about cross-subsidisation, which has already been raised in relation to funding. I will speak more about it when we come to the amendment.
The only commitment we have from the Government, as expressed in their policy statement, is that there will be an increase in the hourly funding rate for childcare. What we do not know is how much that will be. It could be 5p an hour. It could be £5 an hour; I hope it is but we do not know. Without knowing, I do not see how the other elements of the Bill can stand up to scrutiny. How can we assure ourselves of the quality of childcare that will be provided if the amount of funding that is available is not declared? How can we be sure that training for staff in childcare can be made available if the funding is not there? How can we be sure that the number of places will be available if the amount of funding does not support an increase in the number of places that will be required? It is fundamental to the success of this Bill—and we all want it to be a success. I urged the Minister to tell us how much money will be available. Unfortunately his hands are tied, and I appreciate that. That is why we ought to delay discussing this Bill, until we know how much will be available, because everything else depends on it.
At the moment, it is the equivalent of being told that we can buy a car when we do not know whether we can afford a second-hand Mini or a brand new BMW. Young children need and deserve better than that.
Lord Nash
My Lords, I would like to speak to Amendments 1, 30 and 31 tabled by the noble Baronesses, Lady Jones, Lady Pinnock and Lady Tyler and the noble Lord, Lord Touhig. I understand the concerns that the noble Baronesses and the noble Lord are seeking to address through these amendments. I share their view that we need to get the funding for the entitlement right. Much of the success of the extended entitlement rests on sustainable levels of funding. However, I do not agree that these amendments are the right way to deliver that outcome. Indeed, it would simply risk delaying substantially implementation for working parents, which has been widely welcomed. This Government have already shown their commitment to ensuring that funding levels will be sufficient to deliver the 30 hours’ free childcare for the working parents of 3 and 4 year-olds. The Prime Minister himself has already committed to an increase in the rate paid to providers; indeed, we were the only party to commit to such an increase during the general election.
We have acted swiftly upon our promises. Within a month of the general election, we brought forward this legislation and committed to early implementation of the extended entitlement for parents in some areas from 2016, so that we can test the provision, which is so important. We definitely do not wish to delay, because although 2017 may seem a long way off, there is a lot to get right. At the June budget, we made financial provision for the extended entitlement, announcing £840 million, including Barnett consequentials, in 2018-19. That is the current estimated cost before the average hourly rate that providers receive is raised and indicates a further commitment by this Government to the delivery of the extended entitlement. We have listened and addressed the concerns of a sector that has been asking for a review of funding for early years, by establishing a review on the cost of providing childcare as soon as possible. As I have said, this is the most detailed national review of childcare that has ever been conducted. It is a very complicated issue, as noble Lords heard yesterday, and we do not believe that we should delay.
I hope we can all agree that it is clear that we share the same objective—one which the noble Baronesses and the noble Lord have set out in their amendments. We, too, want to establish a sustainable funding solution that addresses concerns about the delivery of the existing entitlement and supports providers to deliver the extension to the entitlement. We have no interest in a solution that will not work for providers. Under the last Government we expanded childcare very substantially and successfully and we fully intend to do so again.
Noble Lords raised the question of funding and the funding review in Committee. Understandably, there were many questions about how the review would be conducted and what it would cover. We have sought to provide more information about the analysis of the first findings of the call for evidence, the terms of reference and the policy statement. The Government have also made very clear their intention to publish the final report from the review following the spending review. The findings from the review will feed directly into the spending review, which is imminent, as we all know. That is where decisions about future funding rates will be made. It is important therefore that the review is complete in order to inform this process. The Budget and the spending review are the appropriate times for the Government to set out their spending plans and Parliament debates those plans at the appropriate time. Legislating for the childcare entitlement is not the time to have this debate.
However, I have listened to concerns raised by noble Lords about ensuring that this Bill is scrutinised by Parliament once the Government’s spending plans are made clear at the spending review. Third Reading will be on 26 October and the Bill will then be sent to the other place in the usual way. It is then only four weeks until completion of the spending review. Although noble Lords would not expect me to be able to comment on the precise timetabling of business in the other place, there are no plans for the Bill to reach Royal Assent before that review concludes. I hope that noble Lords will find that statement helpful.
A delay to the coming into force of key provisions of the Bill will have a knock-on effect on the ultimate delivery of childcare to parents, delaying our consultation process as well as the start of early implementation. The purpose of the review is to provide a robust analytical underpinning for a funding rate that is fair for providers and delivers value for money to the taxpayer.
The review team is considering a significant body of existing and new evidence, such as published research and academic studies, and evidence provided by sector representatives, as well as studies recently commissioned by the Department for Education conducted by a number of consultancy companies. Some noble Lords have met the review team which, led by the department’s chief analyst, is working on two key analytical strands. I think that noble Lords found the meeting yesterday with the chief analyst helpful. I am sorry that the noble Baroness, Lady Andrews, was not able to come yesterday, as I think she would have found it very informative. However, if she would like me to set up a separate meeting for her to meet the chief analyst, I would be delighted to do so.
The first of these two analytical strands looks at providers’ costs and the second considers the supply and demand side of the childcare market. Both are complicated and key to informing our work. The review team recognises that there is huge variation in costs between different providers and between children with varying needs, and the analysis and modelling will allow scenario testing to understand the drivers and consequences of these differences, which will inform our testing in the early-implementation pilot studies.
In Committee many noble Lords raised the importance of the review looking at the costs of providing childcare for children with additional needs. It is absolutely right that it should do so, and we are grateful to those specialist providers and charities that have helped us with this question. We will extend the analysis in the review to consider the characteristics of the families that will be eligible for the new entitlement, including which families it will help back into work or help to increase their income. Details like this are extremely complicated, yet we are clear that they need to be considered carefully to ensure that the system is funded to support all children who wish to access it.
The Government greatly value the opportunity to engage with those who are directly affected by our policies. We have been engaging extensively with all of these groups, both through face-to-face meetings and via other channels. Key organisations in the sector such as the National Day Nurseries Association have welcomed the extended entitlement and have been key partners in the delivery of the review of the cost of childcare. While we are aware of their concerns on the delivery of the extended offer, we have sought their involvement in the development of our policies and the review in particular.
Noble Lords will have seen the report we published on 2 October on the analysis of the responses to our call for evidence. We had over 2,000 responses, the majority from providers—and, as I have said, already over 1,000 providers have come forward, wanting to be involved in the pilot studies. These responses gave us very useful information, which is informing the content of the review. The findings from the call for evidence will help us put into context the work we are doing on understanding providers’ costs. The review team has followed up to gather more detailed information from some of the providers that responded to the call for evidence.
As part of our plans for engaging with stakeholders we have also held a series of round tables over the summer across the country. The round tables have been a valuable opportunity to engage with providers face to face and to tease out some of the issues that were raised in the call for evidence, building on the significant body of evidence that we are considering and looking at the challenges that providers will face in delivering the extended entitlement, while always remembering that the providers would not be doing their jobs properly if they were not asking for more money, because we are, after all, in a negotiation with them.
The childcare sector is healthy, vibrant and growing. It has grown substantially in recent years—by 12% over the three years from 2009 to 2012. It is not a sector that is severely underfunded, and the number of providers offering places under the entitlement has also continued to increase. The market has demonstrated that it is able to respond to the extension of the free entitlement. We just need to look at the rollout of the entitlement for disadvantaged two-year olds, which was introduced in the last Parliament.
I turn now to the proposal of the noble Baronesses and noble Lord for a review to be independent. In coming to a decision about the most appropriate type of review, the timings of different review options, as well as the cost to the taxpayer, were significant factors leading to our decision for this to be a government review with an element of external validation and scrutiny. We determined that the most appropriate approach would be a cross-government review with expert support from outside.
We all know that there is a rigorous and time-bound process supporting any government spending provisions, particularly when increases to particular budgets are involved. Our priority has been to secure our knowledge and understanding of providers’ costs and to inform the discussions on sustainable funding rates during the spending review this autumn. An independent review would have taken significant time to set up and its findings would, therefore, not have been available to feed in to the spending review. This is a vital point. It was important that we move quickly to set up the review and meet our commitment to providers to increase the rate.
We believe strongly that the review under way strikes the correct balance of needing to move quickly and thoroughly. If we now delay, it would be for a considerable period of time because, as I have outlined, the issues here are complicated and it would take considerable time for an independent review to get its mind round it. This would put under threat the timing of delivering the full offer in 2017, because it would delay the consultation, the regulations and, most importantly, the pilot schemes.
I am very grateful to the noble Lord, Lord Sutherland, for his comments on this. He so ably argued and explained why a delay would be a bad idea, and grasped quickly the fact that it would not be a short delay.
I am grateful to the noble Earl, Lord Listowel, for his comments about the impact that the Bill will have on social mobility, as it lifts more families into work or into more work.
As for the comments of the noble Baroness, Lady Howarth, I know that she is very experienced in the field of local authorities. I found some of her comments yesterday particularly helpful. As for the wider envelope and taking that into account, I do not know about that, but I will take it back. My noble friend Lady Evans will talk later about cross-subsidies, but I can assure the noble Baroness that this review is very comprehensive, taking into account all the issues that local authorities will face, and I will take her points back.
I hope that I have provided sufficient reassurance as to the rationale for the way in which the Government have decided to conduct this review and the robustness of the processes that we are following. As I set out, the outcome of the review will be published later in the autumn, as, of course, will the spending review. It will provide sufficient explanation of the Government’s intentions and the next steps, and will be made available to Parliament. As I have said, there are no plans for the Bill to reach Royal Assent before that review is completed. I am happy to ensure that there will be further opportunity for this House to scrutinise the details of the legislation after the spending review has been published. As I mentioned in my opening remarks, I would be happy to host a further meeting with the funding review team after the spending review, if noble Lords would find that helpful.
As I will outline when we debate a later group of amendments tonight, the Government are proposing that the secondary legislation under the Bill will be subject to the approval of both Houses. This will provide an opportunity for further debate on the details of entitlement, once the funding review has concluded.
I hope noble Lords will agree that placing in primary legislation a requirement to conduct a review, which is already under way, is not necessary and could in fact delay the positive progress that has already been made if the Government were required to stop and begin again once the Bill receives Royal Assent. I therefore urge the noble Baroness and the noble Lords to withdraw their amendment.
Baroness Jones of Whitchurch
My Lords, first, I would like to thank noble Lords who have spoken in support of our amendments. I also thank the Minister for his statement and his subsequent comments. The Minister raised other issues in his statement that relate to other amendments, and I know that noble Lords will want to pick that up when we get to those items.
I want now to concentrate on the specific issues relating to the timing of the funding review. The Minister did not address in his response the concerns of the Delegated Powers Committee, which has once again criticised the Government for a lack of detail in the Bill. It does not believe that the case has been made for why all the detail should be contained in secondary legislation, to be seen at a later date, rather than in the Bill. I was sad that the Minister was not able to respond to that today.
Secondly, the Minister did not address why the Bill is being rushed through in advance of the outcome of the funding review being known, which might, as we have heard, fundamentally alter the shape of the package that will be on offer because of the complexities which I think we all now understand. In particular, he did not answer the question asked by my noble friend Lady Andrews about when he first knew that he would not be able to let us have the information that he promised us at an earlier stage. A lot was riding on that at the Committee stage and we feel let down by his lack of commitment.
I hear what the Minister said about the timing of the funding review and that it would be published after the spending review in November, but nothing that he has said so far has provided any reassurance that even Members of the Commons will have the opportunity to scrutinise the Bill at that stage. Clearly, the outcome of the funding review would need to be before them at the Commons Committee stage for there to be any chance of scrutiny of how the scheme will work in practice. Although I listened carefully to the Minister, I do not believe that he gave such a commitment.
This amendment is not about delaying the Bill. The Minister talked about scrutinising evidence and about consultation. All those things can go ahead as planned and still take place—we have got two years before the implementation date—so I do not believe that what we are asking for is unrealistic. There will be plenty of time before the Bill comes into force to allow the outcome to be published and properly scrutinised by both Houses, so the current rush to the statute book leaves us feeling sceptical about the motives.
I was saddened to hear the noble Lord, Lord Sutherland, comment that he thought that a sustainable funding solution was unobtainable, because the scheme seems untenable in the long term if we do not have that. We cannot have a scheme where the funding is made available for one year and then left to drift for following years, which appears to be what is happening at the moment and is why the sector is so unhappy about the schemes now being funded at a loss. We need a response to that. I respect the views of the noble Lord, but I thought that he was being rather too pessimistic.
We believe that what we are suggesting is fair. It would not alter the implementation date of the Bill, but it would give us more reassurance that the scheme is workable and tenable in the longer term. We are not convinced by the Government’s response and would therefore like to test the opinion of the House.
Baroness Tyler of Enfield (LD)
My Lords, my name is also attached to Amendment 20A. I feel strongly about this issue because a few years ago I chaired a policy working group about how families could balance their working lives with their family commitments. In looking at childcare issues, the three As—availability, accessibility and affordability—were thought to be extremely important, and we are hearing a lot about them today. But something else was felt to be equally important by the people we talked to: flexibility.
I was very taken by some recent research produced by Citizens Advice about the experience of parents in the childcare market, which really highlighted how those children who need childcare at non-typical hours were found to be at a far greater disadvantage, and parents spoke of their “intense difficulty” in finding childcare that worked for them. They often did flexible working hours or shift work, were in low-paid employment and were dependent on public transport. Their experience suggested that it was close to impossible to find childcare before 7 am and after 7 pm on workdays, or at any times at weekends; for some, even finding care outside 9 am to 4 pm was difficult. Childminders were seen as just as inflexible as nurseries. That is why I think it is very important to say something about this in the Bill.
I would just like to respond to the very important point that the noble Lord, Lord Sutherland, has just made because I think it really would be a problem if this applied to every provider, as he said. Clearly, some small providers would not be in a position to do that but if you look at the wording of the amendment, it talks about having that flexibility,
“within the local authority area”,
not in relation to every single provider. That is an important point to stress.
Lord Nash
My Lords, I will concentrate first on the delivery model for the 30 hours of free childcare. The Government are in full agreement with the spirit of Amendment 2 in the names of the noble Lord, Lord Touhig, and the noble Baroness, Lady Jones. We agree that local authorities are best placed to ensure that working parents are able to access 30 hours of childcare free of charge. They have a proven track record in delivering the existing entitlement to 15 hours of free early education, which has a take-up rate of 96% and is well understood by parents and childcare providers. We therefore do not fundamentally want to move away from that approach.
Government Amendment 18 proposes to insert a new clause into the Bill which will provide for the Secretary of State to be able to discharge her duty through local authorities. As the policy statement published on 2 October set out, delivering the extended entitlement through local authorities is the Government’s preferred approach and we intend to exercise the Secretary of State’s power to make regulations to that effect following Royal Assent. Indeed, the Delegated Powers Committee states in its report that it welcomes,
“the Government’s efforts to respond to earlier criticisms”,
and goes on specifically to say that it is now clear that functions in the Bill will be conferred on local authorities. I am pleased to confirm that, further to amendments I will move later this evening, the first set of regulations imposing requirements on local authorities—and all regulations made under the new clause—will be subject to debate before both Houses. At the appropriate time, we will, of course, provide statutory guidance for local authorities on what is expected of them. This guidance will be subject to a public consultation next year.
Of course, Amendment 2, in the name of the noble Baroness, Lady Jones, and the noble Lord, Lord Touhig, is cast slightly differently from the Government’s amendment and would remove the duty on the Secretary of State altogether. The Government do not wish to remove this duty from the Bill, even with very clear intentions that it will be discharged through English local authorities. That is for a very good reason: the manifesto commitment to provide three and four year-olds of working parents with 30 hours of free childcare is a significant one and a priority for this Government to deliver. We know that childcare is the issue for parents, and that it inhibits many from going back to work, or from working more, when they would otherwise choose to do so. For that reason, the Government believe that it is right for the Secretary of State to be named in the Bill because parents will, ultimately, hold her to account for delivery of the entitlement. I am grateful to the noble Lord, Lord Sutherland, for his remarks in this regard.
I can assure noble Lords that the Government are committed to working with local authorities as we develop the delivery programme; now, through the early implementer stage from September 2016, and beyond that into full rollout of the system from September 2017. In answer to the noble Lord, Lord Touhig, I can confirm that we will carry out a full new burdens assessment to ensure that any net additional costs to local government are fully funded. Our officials have met the Local Government Association to discuss this and I thank it for its positive engagement.
The positive intention behind the amendments we have brought forward today does not end there. They are also aimed at providing greater clarity about a range of other matters that were of interest to noble Lords during previous debates on the Bill and removing provisions which were causing noble Lords some concern. First, I am pleased to be able to confirm that government Amendment 12 removes some of the provisions which were of particular concern to noble Lords, for example the wide power to impose obligations on any public body or to reproduce any provision of the Childcare Payments Act. Amendment 18 would replace powers which have been criticised as being too wide in their scope with a more targeted set of powers. In particular, we have taken powers which will enable us to create gateways for government departments and local authorities to be able to share information they hold for the purposes of checking a child’s eligibility for the extended entitlement. Information-sharing gateways will, of course, need to be subject to appropriate safeguards and that is why we are clear that unauthorised, onward disclosure of information obtained through those gateways ought to be subject to a criminal offence, a matter which I will speak to shortly as I know it is of great concern to the House.
Of course, successful delivery of the extended entitlement is not merely about ensuring that children who qualify can be correctly identified. It also means putting in place robust mechanisms to ensure that parents and providers can have confidence in the eligibility-checking system. We recognise that there may be occasions on which parents are not satisfied with a decision made in connection with a child’s eligibility. In these cases, it is right that parents are able to challenge that decision and that is why the Government’s proposed new clause enables them to make regulations providing for a right of review in relation to a determination of eligibility with an onward right of appeal to the First-Tier Tribunal.
I turn to the amendments tabled by the noble Baroness, Lady Jones, and the noble Lord, Lord Touhig, relating to criminal offences. I hope noble Lords will be reassured that government Amendment 18 seeks to draw a clear line between conduct that will amount to a criminal offence and that which will attract a civil penalty. The new clause has significantly narrowed the power for the Secretary of State to create criminal offences and I am pleased to be able to reassure noble Lords that there will only be one new criminal offence in connection with the extended entitlement and that this will align with existing offences for schemes involving information sharing. This reflects the Government’s position that criminal offences should not be created lightly and should be used proportionately. It is also intended to make clear the Government’s intention to ensure that personal information, which will also often be sensitive, is not disclosed to those who have no right to see it.
In relation to the level of sanction for the offence, the term of two years that we propose aligns with that provided for in Section 13B of the Childcare Act 2006. Moreover, it is important to remember that this is not a fixed penalty but a statutory maximum and that ultimately the sanction in any particular case will be a matter for the courts. I reassure the noble Lord, Lord Touhig, that we have no intention of criminalising parents. The Bill creates a criminal offence only where sensitive information is disclosed without authorisation, which is designed to protect parents and their information. Although we have sought to narrow the scope of offences, the Government are clear that there should be the possibility of financial penalties on those who provide false or misleading information, make false or misleading statements or otherwise act dishonestly in applying for the extended entitlement. The maximum amount of any penalty will be £3,000. Again, it is only a maximum and there remains discretion to impose a much lesser penalty, depending on the circumstances. Any proposal to amend the maximum level of the penalty would need to be by affirmative resolution and so subject to debate by this House. I hope that noble Lords will agree that that is a more proportionate approach to tackling any dishonesty on the part of parents or providers seeking to benefit from the extended entitlement than the imposition of criminal sanctions.
I shall now speak briefly to Amendment 20A, tabled by the noble Baronesses, Lady Pinnock and Lady Tyler, which is aimed at ensuring that sufficient flexible childcare is available for working parents. As my noble friend Lady Evans acknowledged in Committee, it is important that the extended entitlement is made available at times which provide sufficient flexibility to parents working outside the hours of 9 to 5 and during holiday periods. I once again reassure noble Lords that we want to build on the flexibility that is already in the system to accommodate out-of-hours childcare and holiday periods. We will set out in in statutory guidance provisions about flexibility which local authorities should consider, as well as work that local authorities can do to enable parents to take the entitlement in a pattern of hours that best meets their needs. This will build on what we say in the statutory guidance for the existing entitlement, and we will ensure that the early implementation pilots focus on the issue of flexibility.
We also want local authorities to work with all forms of providers in their areas, including schools, to ensure that, as far as possible, there is sufficient childcare in their areas which responds to parental demand, including out of hours and during the holidays. Given that many early-years childcare providers open throughout the year, provision during holiday periods is less of an issue for parents of children who have not yet reached compulsory school age, but we acknowledge that more could be done to support parents with school-age children to access wraparound care. That is why we recently announced two new measures which will enable childcare providers to open school sites outside school hours and give parents the right to request childcare. Schools will receive clear guidance on the circumstances under which we will expect them to allow a provider to use their site, and we will also make clear how schools should consider and respond to proposals. These new powers will help with the availability of childcare and demonstrate that the Government are on the side of working families.
In conclusion, I believe that the Government’s proposed new clause in Amendment 18 achieves our shared aim of delivering the entitlement through local authorities. Similarly, Amendments 12, 17 and 18 further address noble Lords’ concerns in Committee about the scope of the powers set out in the Bill. The powers are now more clearly defined and, I hope, offer greater clarity as to how the Government intend to ensure that all eligible children receive the childcare to which they will be entitled.
I hope that noble Lords will feel able to support the Government’s amendments, recognising that we have listened to and taken on board their previous concerns. I also hope that they are reassured that the Government are absolutely committed to ensuring that parents have access to childcare in ways and at times which meet their needs. I therefore urge the noble Lord, Lord Touhig, and the noble Baronesses, Lady Jones, Lady Pinnock and Lady Tyler, not to press their amendments.
Lord Mackay of Clashfern
My Lords, I ask my noble friend whether—assuming that Amendment 18 is agreed to, and not Amendment 2—the Secretary of State will be liable if a local authority fails in some way in its duty under this Bill.
Lord Touhig
My Lords, I thank all noble Lords who have taken part in this very short debate. In response to Amendment 2, the Minister agreed that local authorities were best placed to deliver the additional childcare. It begs the question why the first four words in Clause 1(1) were ever in the Bill in the first place—but that is another matter. I received some reassurance on Amendments 14 and 16, although I am still not entirely convinced. However, we have done our very best to try to improve the Bill on these matters and it is time to cede responsibility for improving the Bill—certainly as far as Amendments 2,14 and 16 are concerned— to those who legislate in the other place. I beg leave to withdraw Amendment 2.
Lord Touhig
My Lords, I thank the Minister for the very helpful meeting he held yesterday, when we had the opportunity to explore a number of issues that have exercised us throughout the passage of the Bill, in particular, the outline of the funding review.
Amendment 11 in this group was much in my thoughts after our meeting and the presentation. I fear that the funding review’s progress and the conclusions it will reach may well be a threat to the existing staff- child ratios, which would be a retrograde step were it to happen. Of course, because the Government, sadly, seem determined to put the cart before the horse—passing legislation through your Lordships’ House and telling us afterwards how it will be funded—I feel I have every reason to be concerned.
Amendment 11 goes to the very heart of the standard of education and childcare that parents can expect, especially those with special educational needs children. While I am the first to recognise that there are many good educators in the childcare education sector who themselves have no formal level 3 qualification—a point well made yesterday by the noble Baroness, Lady Howarth of Breckland—that does not mean we should not seek to do something about that and ensure that everybody has the appropriate qualification. The simple fact is that no one leaving education today will have a job for life. Everyone will have to retrain and upskill in their working lives. If we do not recognise that by ensuring that the first learning and educational experience a child receives in its life is delivered by someone who themselves has been well trained, we start at a disadvantage.
We must be bold in our ambition for our children, and Amendment 11 is surely the foundation of that ambition. That is why we on this side strongly support it.
Lord Nash
My Lords, I will speak to Amendments 3, 5, 11 and 23 regarding the quality of childcare to be delivered under the Bill, staff to child ratios, the workforce, and provision for children with special educational needs. I thank the noble Baronesses, Lady Massey, Lady Tyler and Lady Pinnock, and the noble Earl, Lord Listowel, for highlighting the importance of high-quality childcare and, in particular, the skills and qualifications of the early years workforce, including for children with special educational needs and disabilities.
I reassure noble Lords that we all want childcare that meets the needs of working parents and their children, including those with special educational needs. I have listened carefully to the debate this evening and I completely agree with the points that have been made about the importance of the quality of childcare and its impact on child development. I reassure the House, and particularly all those who have contributed to this debate, that the quality of early education and childcare and the welfare of children remains paramount.
All childcare must be delivered in a safe, secure and welcoming way that contributes to a child’s welfare and their development. The Government believe that the extended entitlement needs to supplement and complement the current early education entitlement. It will need to provide positive and stimulating experiences for children, and staff will need to have the right skills and knowledge to deliver this care. There are a number of aspects to these amendments, each of which I will address in turn.
First, the amendment tabled by the noble Baroness, Lady Massey, seeks to extend the existing ratios for the current 15-hours early education entitlement to the 30-hours childcare entitlement and to set these out in primary legislation. All early years providers registered on the early years register must meet the early years foundation stage framework requirements for welfare and well-being, including ratio and qualification requirements.
The English childcare system has some of the tightest adult-child ratios in the world. For three and four year-olds in group provision there must be one adult for every eight children. Or, where a person with a suitable level 6 qualification is working with the children, a 1:13 ratio can be used. The existing ratios have been set out in the EYFS since 2008 and we are committed to keeping them. I would like to place on record that there are no plans to change the ratios to deliver the new entitlement. I am very clear about this. The Government consider the current approach of using secondary legislation to be the right one for ratios, as was discussed in Committee. Ratios for all providers are already set out in secondary legislation, and this allows for a quick response if changes are needed to keep children safe and well cared for. I hope I have reassured noble Lords on this point and urge the noble Baroness to withdraw her amendment.
“(2A) The conditions mentioned in subsection (2)(d) may, in particular, relate to the paid work undertaken by a parent or partner.
(2B) For the purposes of subsections (2) and (2A), the Secretary of State may by regulations—
(a) make provision about when a person is, or is not, to be regarded as another person’s partner;(b) make provision as to what is, or is not, paid work;(c) specify circumstances in which a person is, or is not, to be regarded as in such work;(d) make provision about the form of any declaration, the manner in which it is to be given and the period for which it has effect.”
“Discharging the section 1(1) duty
(1) The Secretary of State may make regulations for the purpose of discharging the duty imposed by section 1(1) (“extended entitlement regulations”).
(2) Extended entitlement regulations may (amongst other things)—
(a) require an English local authority to secure that childcare of such a description as may be specified is made available free of charge for children in their area who are qualifying children of working parents;(b) make provision about how much childcare is to be so made available for each child, and about the times at which, and periods over which, that childcare is to be made available;(c) make provision about the terms of any arrangements made between English local authorities and providers or arrangers of childcare for the purposes of meeting any requirement imposed under paragraph (a) or (b);(d) impose obligations or confer powers on the Commissioners for Her Majesty’s Revenue and Customs;(e) make provision requiring information or documents to be provided by a person to the Secretary of State, the Commissioners for Her Majesty’s Revenue and Customs or an English local authority;(f) make provision for the purpose of enabling any person to check whether a child is a qualifying child of working parents;(g) for that purpose, make provision about the disclosure of information held by a Minister of the Crown, the Commissioners for Her Majesty’s Revenue and Customs or an English local authority;(h) create criminal offences in connection with the onward disclosure of information obtained under paragraph (g) where that information relates to a particular person and is not disclosed in a way authorised by or specified in the regulations;(i) make provision for reviews of, or appeals to the First-tier Tribunal against, determinations relating to a child’s eligibility for childcare under section 1;(j) make provision for a person specified in the regulations to impose financial penalties on persons in connection with—(i) false or misleading information provided, or statements made or provided, in connection with a determination of a child’s eligibility for childcare under section 1, or(ii) dishonest conduct in connection with the process of making such a determination;(k) require English local authorities, when discharging their duties under the regulations, to have regard to any guidance given from time to time by the Secretary of State. (3) Extended entitlement regulations which impose a duty, or confer a power, on the Commissioners for Her Majesty’s Revenue and Customs, or authorise disclosure of information held by the Commissioners, may only be made with the consent of the Treasury.
(4) In relation to a criminal offence created by virtue of subsection (2)(h), extended entitlement regulations may not provide for a penalty of imprisonment on conviction on indictment greater than imprisonment for a term not exceeding two years (whether or not accompanied by a fine).
(5) If provision is made by virtue of subsection (2)(j)—
(a) the maximum amount of any penalty that may be specified in, or determined in accordance with, the regulations is £3,000;(b) the regulations must include provision enabling a person on whom a financial penalty is imposed—(i) to require a review of the imposition of the penalty or its amount by the person who imposed the penalty;(ii) to appeal against the imposition of the penalty or its amount to the First-tier Tribunal.(6) The Secretary of State may by regulations substitute a different amount for the amount for the time being specified in subsection (5)(a).
(7) In section 15 of the Childcare Act 2006 (powers of Secretary of State to secure proper performance of English local authorities’ powers and duties under Part 1 of that Act) references to Part 1 of that Act are to be read as including a reference to section 1 and this section.
(8) In this section—
“childcare” has the meaning given by section 18 of the Childcare Act 2006;“English local authority” means—(a) a county council in England;(b) a metropolitan district council;(c) a non-metropolitan district council for an area for which there is no county council;(d) a London borough council;(e) the Common Council of the City of London (in their capacity as a local authority);(f) the Council of the Isles of Scilly;“parent” has the same meaning as in section 1;“qualifying child of working parents” has the meaning given by section 1(2).”
Lord Nash
My Lords, this group of amendments concerns the regulations made under the Bill, which will be key to setting out the detail of the new entitlement, including who will be eligible and how it will be delivered. Therefore, I understand noble Lords’ concerns about ensuring that they have a proper opportunity to scrutinise this detail.
There was much interest in the regulations in our earlier debates in this House and in the report by the Delegated Powers and Regulatory Reform Committee. The committee concluded that the scope of the delegations and powers under Clause 1 as drafted were too wide. Given the importance of secondary legislation to the Bill, I am in complete agreement with noble Lords and with the committee’s report that it would be appropriate for regulations to be approved by a debate in both Houses. That is why I have brought forward these amendments, which would require regulations made under Clause 1 and extended entitlement regulations to be laid and approved by each House using the affirmative procedure. I hope this will reassure noble Lords that we have listened. I hope the Government’s amendments will be welcomed.
Amendment 27, tabled by the noble Baroness, Lady Jones, would ensure that a statutory instrument containing regulations in exercise of any power in the Bill would not be made unless a draft of the instrument had been laid and approved by each House; in other words, it would subject regulations to the affirmative procedure each time the regulation-making power was exercised. We believe it is right that initially we should deal with the regulations under the affirmative procedure, rather than the negative procedure as originally planned. However, we do not believe it is necessary to make them affirmative each time.
We need to strike the right balance between the mechanics of the affirmative process—for example, the need to find time in the parliamentary timetable for debates in both Houses, no matter how small the change—and the ability of government to respond efficiently and effectively to support delivery of the new entitlement, should this be necessary. That is why the government amendments in this group envisage that regulations made under Clause 1 and regulations made for the purpose of discharging the Secretary of State’s duty will be subject to a debate the first time the powers are exercised but that subsequent regulations made under the Bill would be subject to the negative resolution procedure.
The exception to this would be in any instances where regulations seek to amend or repeal primary legislation, or in the case of regulations seeking to update the maximum level of any financial penalty set out in the Bill, which would be subject to the affirmative procedure. This follows the precedents of parliamentary scrutiny adopted in childcare legislation or comparable education legislation. The regulations that underpin the current Section 7 entitlement have been subject to the negative procedure since they were introduced in 2008. These have been amended only four times, and each time the changes were subject to a public consultation.
We believe that our approach is the right one. As noble Lords have already heard, we have made great progress since Committee to narrow the scope and clarify the detail of what we will include in the regulations. I also reassure noble Lords that feedback from parents, providers and employers will be taken into account in the development of the draft regulations, and we will wish to draw on the expertise of noble Lords. Furthermore, we have committed to providing a full impact assessment on the extent of the free entitlement, which will be published when we undertake a formal public consultation on the draft regulations in 2016. Following the consultation, we will lay the draft regulations before the House for a full debate before they can be approved and added to the statute book.
I hope noble Lords agree that by the time they are laid, these regulations will have undergone a significant amount of close scrutiny. Therefore, I am confident that we will be able to present a set of regulations to the House that are fair and workable and remain true to the spirit of the Government’s commitment to support and reward thousands of hard-working families. I beg to move.
Lord Touhig
My Lords, I regret very much having to put Amendment 27 before the House but, frankly, the Government leave us no choice. We have seen throughout the passage of the Bill the cavalier attitude the Government have taken—not by the Ministers who have represented the Government in this House, I hasten to add, but by the Government as a whole. In support of that assertion, I quote from the 2nd Report of the Delegated Powers and Regulatory Reform Committee, published on 26 June, which says at paragraph 10:
“We note that the Minister said that ‘the introduction of the Bill, with a strong duty on the Secretary of State, sends a clear message to parents and providers about the Government’s commitment’. That is not, in our judgment, a proper use of legislation: the purpose of an Act is to change the law, not to ‘send a message’”.
Earlier, in paragraph 8, the committee says:
“In our view, the Government’s stated approach to delegation is flawed. While the Bill may contain a legislative framework, it contains virtually nothing of substance beyond the vague ‘mission statement’”.
Finally, in paragraph 9 of the report, the committee states that:
“We do not accept the Government’s attempt to dignify their approach to delegation by referring to a need to consult. We of course acknowledge the need for consultation as a precursor to the formation of policy; but this should in our view have followed the well-established sequence of a Green Paper setting out proposals, followed by a White Paper containing the Government’s legislative intentions, and finally the presentation of a Bill”.
There we have it—that spells out quite clearly how the Government should be presenting legislation to Parliament.
Lord Mackay of Clashfern
My Lords, I have one comment on the report of the Delegated Powers Committee. If all Bills had to be preceded by a Green Paper and a White Paper, there would be a long interval after a general election before there would be any legislation at all. Some people would welcome that but, on the other hand, those who are anxious to fulfil their commitments might not wish to wait that long.
Lord Nash
The Government recognise and understand the expressed views and wishes of the House and the Delegated Powers Committee to be able to debate the regulations in more detail. Our amendments will provide a higher degree of parliamentary scrutiny beyond the original intention. Furthermore, the department will continue to consult on any material changes to the regulations once they have been approved and laid under the negative procedure. We recognise the importance of seeking the views of parents, local authorities and providers. Each time the regulations that underpin the current entitlement have been amended, which is only four times, they have been subject to a public consultation. The current entitlement is subject to a negative procedure and we are not persuaded that this situation is sufficiently different to warrant finding parliamentary time for changes which may be minor. The department will continue to follow this good practice and will consult on any material changes to regulations made under Section 1 and regulations made for the purposes of discharging the Secretary of State’s duty under what will become Section 2. Therefore, in the Government’s view, it would not be necessary to include this type of direction on the face of the Bill. I hope noble Lords will be reassured by my explanation that we have listened to their concerns and taken them seriously. I therefore urge the noble Baroness not to press Amendment 27, and for noble Lords to accept government Amendments 26, 28 and 29.