Kevin Brennan
Main Page: Kevin Brennan (Labour - Cardiff West)Department Debates - View all Kevin Brennan's debates with the Department for Education
(12 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Kevin Brennan (Cardiff West) (Lab)
Were the Government able to provide any further evidence in the Lords as to the prevalence of such allegations and what proportion of them were found to be malicious?
Mr Gibb
I thought the hon. Gentleman supported these proposals. He will be aware that the National Union of Teachers and the NASUWT have compiled figures on such allegations against teachers. The NUT estimates there are about 200 a year, and we gave evidence to the Lords of at least 15 cases in the last few years where there were damaging local reports and publicity about the allegations before charges were brought.
Kevin Brennan
The Minister is right that the Opposition have supported these proposals, but they must also be carefully scrutinised for any possible unforeseen consequences. That has been done very effectively in the Commons in Committee and also in the Lords. Is it correct that in the Lords the Government accepted that about 2% of such allegations had turned out to be malicious?
Mr Gibb
Yes, of course, but we are talking about the effect on individuals, and if there is just one case of someone suffering such publicity about what turns out to be a false allegation, that is one case too many, as such allegations can have devastating consequences on teachers both socially and career-wise. The publicity that just one such case receives also reverberates throughout the teaching profession, undermining teachers’ morale and making them unduly cautious about maintaining discipline in our classrooms. If we are interested in the welfare of pupils in our schools, we have to make sure they are taught in ordered and safe environments, free from bullying and other disruptive activities.
I thought, however, that the hon. Gentleman was concerned in Committee less about the prevalence of such allegations and more about the question of whether these provisions should be extended to other sectors of the workforce. We have proceeded extremely cautiously, taking into account the fact that we must preserve press freedom as well as the integrity of teachers and their being innocent until proven otherwise.
Mr Gibb
I really do not want to intervene or interfere in this debate between two such august hon. Gentlemen, but we have been careful to tread warily between the two interests: the interest of protecting teachers from the full force of false allegations before they are proven or charges are brought, and from the publicity that might accompany them, and the important interest of protecting press freedom. We are treading cautiously, and that is why we have not extended the measure to other parts of the children’s work force. We want to see how it works in the first instance before making any further decisions.
In Committee, the hon. Member for Cardiff West (Kevin Brennan) made the case for providing protection to groups other than teachers, but he accepted our cautious and targeted approach and suspected that the clause, even in its narrow form, might attract the close attention of, as he put it,
“people more erudite and noble than ourselves”––[Official Report, Education Public Bill Committee, 22 March 2011; c. 557.]
He has been proven correct, but I am pleased to say that the substance of the provision returns to the House intact and with three important improvements. First, through amendment 5, the clause now makes it clear that tentative allegations that a teacher may be guilty of an offence should be treated in the same way as firmer allegations that they are guilty. That was always our intention because even—or, indeed, especially—tentative allegations can have a damaging effect on the teachers involved.
Secondly, through amendment 7, the clause now makes it clear that a judge who is considering an application for reporting restrictions to be lifted should take account of the welfare of both the teacher who is the subject of the allegation and the pupil or pupils who are the alleged victims. We will ensure through amendment 11 that where a teacher decides to identify himself or herself publicly as the subject of an allegation, reporting restrictions are lifted altogether. It is right that if a teacher effectively waives their right to anonymity by, for instance, writing in a newspaper about an allegation, others can also join the public debate.
The noble Lords echoed this House’s concern about clause 30, which would have removed schools and colleges from the duty to co-operate with local partners. My noble Friend Lord Hill met a number of peers during the summer to discuss the matter further and he then discussed the outcome of those conversations with me and the Secretary of State. We accept that retaining the duty would provide continuity while we implement the proposals of the Green Paper, “Support and aspiration: A new approach to special educational needs and disability.” That point was made forcefully in Committee. In another place, Lord Hill introduced amendments 18, 19 and 42 to remove from the Bill clause 30 and the related clause 31.
Kevin Brennan
When we were in Committee, I recall the Minister saying that he regarded the duty to co-operate as an “unnecessary prescription” on schools—[Interruption.] Perhaps that is the Secretary of State ringing up his hon. Friend the hon. Member for Stroud (Neil Carmichael) to give him the answer. In Committee, the Minister also said:
“It is not appropriate to delay removing that burden”—
that unnecessary prescription—
from schools.”––[Official Report, Education Public Bill Committee, 29 March 2011; c. 729.]
What points did Lord Hill make in the Lords that were different from those made in the Commons and how did that persuade the Minister to change his mind? Secondly, is this a temporary conversion or does he intend to remove the duty to co-operate at some further stage?
Mr Gibb
We were never against co-operation. It is very important that schools, academies and free schools continue to co-operate with other state bodies, locally and nationally, that affect children. That was our reason for removing the prescriptive duty. A number of changes are happening in relation to the Health and Social Care Bill and the SEN Green Paper and, having considered the matter further and reflected upon it, it is better to maintain the duty until deliberations over those measures are complete and until decisions about the SEN Green Paper have been taken.
Kevin Brennan
In the light of what the Prime Minister has said today about the dangers of schools coasting, is the Minister content, prior to the discussion of our amendment, that the Government’s position on this will not make matters worse, given the potential for schools that have been found to be outstanding to coast and then not to be inspected, with it being difficult to trigger an inspection for them in future?
Mr Gibb
The Prime Minister made some very important points about coasting schools in his article in The Daily Telegraph today. We want to see standards rise throughout the education system. There has been a concentration on failing schools, but we must also concentrate on the schools in the leafy suburbs that are not challenging their pupils as well as they should. All schools will now be subject to our scrutiny to make sure that they raise standards. The new performance tables will identify how schools perform in relation to children of high academic ability, as well as how they perform in relation to children of a lower academic ability. We will reflect on some of the issues raised by the hon. Gentleman, but outstanding schools are, by their nature, not necessarily to be regarded as coasting if they have been graded by Ofsted as outstanding. The arrangements I talked about are to do with using risk assessment strategies to pick up on problems, even in outstanding schools. Those risk assessments are what will trigger Ofsted to carry out an inspection in an outstanding school.
Kevin Brennan
My concern is that the exemption from inspection is almost an invitation to coast. There is a danger of that. Does the Minister not accept that it might be worth cogitating on that a little further in the light of what the Prime Minister has said?
Mr Gibb
I am happy to think further about those issues. However, the point of the proposal is that it is difficult for schools to achieve from Ofsted the accolade of outstanding. I am sure that the hon. Gentleman and the hon. Member for Liverpool, West Derby (Stephen Twigg) have visited schools that are categorised by Ofsted as outstanding. It is clear why those schools have been so categorised. I was at a school last week in Wiltshire that had been categorised by Ofsted as outstanding in all 27 categories. I believe that it was the first school to be given such a grading.
Mr Gibb
My hon. Friend is right that one has to be proportionate in these issues. Ultimately, this is a matter for the chief inspector of schools. If the results of an outstanding school start to decline, as was hinted at by the hon. Member for Cardiff West, it will be picked up in the risk assessment. He has made important points and we will, of course, reflect on them in the usual way.
Kevin Brennan
I will intervene one final time on this issue because I do not want to detain the House. The Chairman of the Select Committee knows that what he described was not what the Opposition proposed in Committee. We proposed triggers for inspection that would be appropriate for schools that had been ruled outstanding but may have slipped. Is that not exactly what the new chief inspector of schools, who was just appointed by the Government, has said in relation to checking whether outstanding schools remain outstanding? After all, when outstanding leaders leave outstanding schools, that can often lead to a big change in the performance of those institutions.
Mr Gibb
The hon. Gentleman makes a very good point. When a new head teacher comes into a school it can have important effects, and not necessarily beneficial ones if the school has been led by a very effective leader. That would be a risk assessment issue. I know that it is an issue that the new chief inspector, Sir Michael Wilshaw, is concerned about. We will reflect on those points in due course. The principle of having proportionate inspection and targeting the limited resources on schools that have the most pressing need is important. However, we must take it into account if a school that is graded as outstanding is not graded as outstanding in teaching, for instance.
Mr Gibb
My hon. Friend is right. All kinds of other factors will determine which awarding organisations schools use and why, and there is a “stickiness” compared with the fluidity that might exist in another market situation.
Lords amendment 37 would give the Secretary of State the power to pilot the use of direct payments in education for children with special educational needs. In the Green Paper on special educational needs and disability, we committed to give every child with a statement of SEN or a new education, health and care plan the option of a personal budget by 2014. One element of a personal budget can be a direct payment to a family to buy support for their child. Direct payments are already being used in health and social care, and we want to test how the greater choice and control they give to families can be effectively achieved in education too.
With those brief remarks, I commend the Bill and these amendments to the House.
Kevin Brennan
In this debate on Lords amendment 1 and all the amendments that it is highly convenient—for the Government, anyway—to group with it, I note that the Bill returns to us from the Lords without any non-Government amendments. Perhaps that is a reflection of changing times and the new, rigid hegemony in the other place, whereby amendments are rarely passed there without the Government’s say-so.
Kevin Brennan
I was indeed going to be generous—about the powers of persuasion of our Front Benchers in the House of Lords. They persuaded the Government—more effectively than my hon. Friends and I in the Commons did—to change their mind on one or two issues, which I shall come to in a moment.
The Minister has taken the trouble to talk us through the Lords amendments, as he said he would, but some questions emerge from what he said that, if he has the leave of the House to speak later in the debate, I hope he will answer. Lords amendments 1 to 4 relate to clause 8 and the Secretary of State’s functions in relation to teachers. The Bill abolishes the General Teaching Council for England. I note that some criticisms have been made of its operations. One year after the publication of the White Paper, “The Importance of Teaching”, in which the Secretary of State said—I agree with him about this—that there was
“no calling more noble, no profession more vital and no service more important than teaching,”
it is significant that he has taken the opportunity to abolish the professional body.
The Bill transfers some of the General Teaching Council’s functions to the Secretary of State, among which is the power to prohibit a teacher from teaching. In Committee in this House, we debated an Opposition amendment—which, surprisingly, was not successful—that would have required the Secretary of State to keep a list of persons prohibited from teaching. I note that Lord Hill confirmed in the other place that the Government believe that a database of teachers prohibited from teaching will be established. We tabled amendments here and in the other place to require the Secretary of State to keep a register of qualified teachers—again, to our surprise, without success—but Lord Hill indicated that he would consider the matter, saying,
“we have been persuaded by concerns raised in this House and elsewhere that there is a genuine need for the Government to help schools to know who has qualified teacher status and who has passed induction.”—[Official Report, House of Lords, 18 October 2011; Vol. 731, c. 257.]
That is welcome. He went on to confirm that there would be an online database from 2012.
Another concern is the proposal to give employers discretion over which cases of misconduct—those that might lead to the prohibition of a teacher—to refer to the Secretary of State. Again, colleagues in both Houses raised concerns about transparency and consistency. I welcome Lord Hill’s notification to Baroness Jones that the Government are developing advice on the new system to help professional conduct hearing panels determine when a teacher should be prohibited from the profession and that such advice will be available publicly.
Lords amendments 1 to 4 would enable the Secretary of State to issue interim prohibition orders—quickly imposed orders that prevent a teacher from undertaking work while the Secretary of State is considering their case—where he considers it in the public interest to do so, and they must be reviewed every six months. The amendments were tabled in Grand Committee in the House of Lords, but I do not think they were debated there. Their rationale was not given, so when the Minister replies he might like to emphasise what the rationale was, what the amendments will achieve, why they are so important and perhaps why they were not included in the first draft.
Lords amendments 5 to 15 relate to restrictions on the reporting of alleged offences by teachers, about which we had an exchange earlier. We have supported the Government’s intention to help protect teachers from malicious allegations, but we have also been keen to ensure that the provisions are properly scrutinised, as there is a possibility of unintended consequences.
The Lords amendments would extend the reach of clause 13 to cover tentative allegations against teachers. As the Minister rightly pointed out, following advice from the trade unions and others, we argued that the clause’s reach could be extended so that the restrictions apply not only to teachers in schools but to other school staff. The Chair of the Select Committee, the hon. Member for Beverley and Holderness (Mr Stuart)—I am sure it is only a matter of time before he becomes a right hon. Gentleman—mentioned this earlier. In our view, other school staff and staff in further education colleges should be included. The impact of a publicly reported unproven allegation, which the Minister eloquently described, applies to those people, too, and is potentially equally damaging. I understand the Government’s general desire to limit the number of people on whom the provisions will have an impact, but I do not understand why teachers in FE colleges should not be covered when teachers dealing with young people of the same age group in sixth forms—quite possibly teaching exactly the same subjects—are covered. This seems to be an inconsistency in the Bill.
I note what the Minister said about extending the provisions to cover tentative allegations. I make it clear that we do not object to that, but we ask him to be absolutely clear about his motives for including the amendments at this stage. Does he have any further thoughts on the desirability of extending the scope to include non-teaching staff and all staff in FE colleges? If he has any compelling reasons why those staff should be excluded, we would like to hear them. Having listened to him earlier, I am not sure what his evidence is for excluding these staff from the scope of the provisions. I understand why he might want to limit the number of people covered—perhaps that is why he has put a ring fence around teachers—but I do not understand the rationale for failing to include the other staff.
Mr Graham Stuart
The hon. Gentleman talks about extending the provision to other staff in schools. Do he and his party believe that it should be extended further to other workers? For example, a social worker dealing with children at risk could be equally devastated by publicity surrounding allegations against them—
Kevin Brennan
As always, the hon. Gentleman makes a thoughtful point but, as you have confirmed, Mr Speaker, it unfortunately falls outside the scope of the Bill.
Lords amendments 16 and 17 deal with Ofqual’s enforcement powers, which the Minister mentioned earlier. The Labour Government began the reform of the examination system in 2007 with the “Confidence in Standards” White Paper. It proposed the establishment of an independent regulator, Ofqual, which would be separate from the Qualifications and Curriculum Development Agency and would be able to fine exam bodies. Currently, the Apprenticeships, Skills, Children and Learning Act 2009 allows Ofqual only to direct an examination board to change its practices and, as the Minister said, to withdraw recognition.
I agree that it would be helpful for Ofqual to have more sanctions at its disposal to ensure that examination boards minimise their errors, but to an extent I share the concern expressed by the hon. Member for Beverley and Holderness. This proposal has appeared at a late stage. I know that Christmas is approaching, but, as I am sure the Government Whips will confirm, using Bills as Christmas trees on which to hang whatever a Government wish to hang on them is not always a good way of legislating, and I had thought the Government had pledged not to do that.
Mr Stuart
As I debated the abolition of independent schools only a couple of weeks ago with the hon. Gentleman, who supported the motion, it is a pleasure to find something on which we can agree. He is right: we need to hear more from the Government to justify the measure. It is like the Dangerous Dogs Act 1991. Legislating instantly following an incident in the summer, rather than checking and thinking through the principles behind the proposed legislation, could be a mistake.
Kevin Brennan
Let us hope that this will not be another Dangerous Dogs Act.
I am not going to suggest that Labour has not been guilty in the past of hanging proposals on to Bills as they progress through Parliament, and, as a former Government Whip, I am not going to suggest that I have not occasionally tried to lecture Ministers about the practice, but it often causes problems further down the line. We can understand how it happens.
On 22 June 2011, a newspaper headline announced “Cameron promises ‘tough action’ over GCSE and A-level exam blunders”, and a sub-headline added “Prime minister says mistakes are unacceptable and assures Ofqual will rectify system to prevent further errors”. That was converted into a panic in Government, which rippled into the Department for Education, and the Secretary of State said that the Prime Minister was exercised about the issue. “What can we do? Oh, we have a Bill going through Parliament: perhaps we can dream up a few clauses to put into it. Wasn’t there a proposal at some stage to introduce fines? Let us use that: it is already half written.” However, the proposal was never properly scrutinised. It should have been subjected to proper pre-legislative scrutiny.
As I have said, we are not going to oppose the amendments, but I want to record our concern that something that the Government said they would not do is happening now, before our very eyes.
Mr Gibb
As the hon. Gentleman will know, the previous Administration, of which he was part, considered extending the fining power to Ofqual. Indeed, Kathleen Tattersall lobbied Members of Parliament for it to be introduced during the Committee stage of the Apprenticeships, Skills, Children and Learning Bill before the election. Ofqual will launch a consultation when it begins to set out the circumstances in which the new power will be used, and the consultation will last 12 weeks in the normal way.
Kevin Brennan
Not only am I aware of that, but I actually said about two minutes ago that it had originally been in the White Paper that the Labour Government introduced. That does not alter the fact that had the Government intended to do this, they could have consulted on it originally, rather than hang it as a bauble on a Christmas tree Bill and react to newspaper headlines. It seems that these proposals have been rushed. I welcome the fact that there is to be a proper consultation, but consultations should happen before proposals are enacted rather than after.
Lords amendments 18 and 19 remove clauses 30 and 31, which repeal the duties to co-operate with a local authority and to have regard to the children and young people’s plans. We welcome the Government’s support for reinstating the duty to co-operate by removing clauses 30 and 31. Labour Members on the Public Bill Committee voted that clause 30 should not stand part of the Bill, but Government Members defeated us. Baroness Hughes co-signed the amendments to leave out clauses 30 and 31, so we strongly support their removal. Had they remained part of the Bill, the Government would be putting the reduction of alleged bureaucracy ahead of the safeguarding needs of some of our most vulnerable children. In their professed zeal for cutting as many processes, systems and guidance as possible, the Government were in danger of throwing out things that raise standards and improve safeguards for our children. These duties are examples of the latter.
As I said in an intervention, in Committee the Minister characterised the duty to co-operate as an unnecessary prescription and went on to say that it was not appropriate to delay the removal of that burden on schools. In the Lords, Lord Laming spoke eloquently and convincingly to expose the irresponsibility of the Government’s position:
“In every inquiry that has followed a tragedy to a child with which I am familiar, two key messages have permeated every report like the lettering through a stick of rock. The first is that in future each service, including education, must greatly fulfil its particular responsibilities to promote the safety and well-being of each child. The second is that each service must develop the skills to work successfully across organisational boundaries and share information at an early stage.”—[Official Report, House of Lords, 30 June 2011; Vol. 728, c. GC268.]
I can understand why the Government might have listened to Lord Laming more readily than they listened to us in the Commons, but they were fully aware of the views of Lord Laming and others on these matters.
Lord Laming went on to say:
“The development of children’s plans and children’s trusts under the Children Act 2004 were designed specifically to place the well-being and the promotion of care of children in this wider context. In the letter which the Minister sent to me, he said that the Bill simply reverts to the earlier position.”—[Official Report, House of Lords, 30 June 2011; Vol. 728, c. GC268-269.]
So that was what the Government wanted to do: to revert to the earlier position—the one pre-Laming—using this Bill. By including these clauses, they originally showed their disdain for the services and processes that have since been put in place to keep our children safe. It is abhorrent that any Government, not least one who said at one time that they wanted to be the most family friendly ever, should be willing to risk the safety of our vulnerable children just so that they can reduce prescription.
I am glad that the Government have got it, albeit late in the day, but I am concerned that this is a temporary change of mind. I was not assured by what the Minister said in reply to my intervention, because Lord Hill’s letter to Baroness Hughes on 12 October said:
“We are persuaded that the duty in itself provides schools, colleges and others with sufficient freedom to determine the arrangements that work best for them”.
In a letter of 6 October 2011 to Baroness Hughes, he said that the reason for the Government’s change of mind was that this was a temporary measure while they worked through how to achieve better collaboration in the planning, commissioning and delivery of services.
I welcome the Lords amendments, but we want to strengthen them slightly. We have tabled an amendment that would ensure that schools must in all cases have regard to children and young people’s plans created by children’s trust boards, whether or not they are made under section 17 of the Children Act 2004. I should like an assurance from the Minister. Are the Government committed long term to a wide-ranging, overarching duty on schools to co-operate with local authorities and other local partners, which include health and police bodies, to promote the well-being of children? Is that a long-term commitment of the Government, or do they intend to water down or attempt once again to abolish the duty in the future?
Mr Gibb
Perhaps I can help the hon. Gentleman by quoting my noble Friend Lord Hill, who said in another place that he accepted the point made by our noble Friend Lady Walmsley that
“at a time when the Government have recently announced pathfinders to test and work through our SEN Green Paper proposals, which seek to encourage greater partnership working, we should not risk sending…any confusing messages about the importance of partnerships. I took their advice and decided that the simplest thing to do was to delete the relevant clauses.”—[Official Report, House of Lords, 24 October 2011; Vol. 731, c. 634.]
Kevin Brennan
The interesting thing is that one reason why the Government became confused or were in danger of sending out confusing messages was the interminable delay in the publication of the Green Paper on SEN, which we were promised well before the consideration of the Bill in Committee and which finally turned up extremely late. Had it been published on time, perhaps the Government would not have been in danger of sending out confused messages, but I simply reiterate that we are concerned that the Government do not appear to have a long-term commitment to give schools an overarching duty to co-operate. We await confirmation from the Government that they believe that such an overarching duty to co-operate is important and should be retained in the long term.
Labour’s amendment (a) to Lords amendment 19 would require maintained schools to have regard to children and young people’s plans produced by children’s trust boards whether or not that is prescribed in regulations made by the Secretary of State. We voted in the Commons that clause 30 should not stand part of the Bill. Our amendment to delete clause 31 and insert another clause is intended to extend that opportunity for that omission to be retained.
The Government’s suggested changes to the law on the arrangements to admit pupils to school have been debated throughout the Bill’s passage through Parliament. On two occasions—on Report in the Commons and Lords—the Government have introduced amendments that have responded to some if not all the points made by the Opposition. The whole point about admissions is fairness and how we can have a system that gives children fair access to local schools in accordance with their parents’ wishes. In the centrally managed schools system that the Government are creating, it is regrettable that the Government have resisted placing a clear and unequivocal duty on the Secretary of State to work towards fair access to education.
We welcome the reinstatement of the duty on local authorities to send reports to the adjudicator, which is the effect of amendments 21 and 22. The fact that the reports will not now receive the special treatment for such reports, which is removed by amendment 20, is regrettable, although I hope that it does not lessen their importance and that the contents will still receive the full attention of the adjudicator. I trust that that is what will happen.
Richard Fuller
On the hon. Gentleman’s observations on Lords amendments regarding schools admissions policies, one of the objections put about by some of those who oppose free schools and academies is their fear that admissions policies will somehow be discriminatory. Will the hon. Gentleman take this opportunity to confirm that the amendments suggested by the Lords put to bed that lie?
Kevin Brennan
The Government made it clear during the Commons stage that they wished the academies to be subject to the admissions code. We welcomed that at the time and I am happy to welcome it now, because any state school should have a fair admissions policy. Any school funded by the taxpayer should admit pupils on a fair basis in accordance with the code. We therefore welcome the extension of the code to academies and the clarification of that by the Government, rather than relying on funding agreements in order to achieve that.
One of the innovations of the Bill that we debated is the change to the powers of the schools adjudicator. Currently, when an admissions authority is found to be in breach of the code, the adjudicator can rectify any flaws with immediate effect, but following the passage of the Bill, the adjudicator will be able to make only “binding” decisions, which the admissions authority will be obliged to implement. Ministers have already made it clear that the purpose of that change is to emphasise the importance of schools taking responsibility for their own actions, but it should not allow them the scope to avoid those responsibilities or to frustrate parents who have made a successful complaint and have a legitimate expectation that matters will be put right promptly.
The draft version of the admissions code was pretty clear. Paragraph 3.1 stated:
“The admission authority must revise their admission arrangements immediately to give effect to the Adjudicator’s decision.”
That was the original version of the code issued by the Minister, which was pretty clear and unambiguous, as it should be. However, I was dismayed to read in the revised version of the draft code, published 10 days ago, that paragraph 3.1 has been changed. It now states:
“The admission authority must where necessary revise their admission arrangements as quickly as possible and no later than 15 April following the decisions (i.e. the deadline for determination of admission arrangements) to give effect to the Adjudicator’s decision.”
It is not clear from reading out those two sentences, but there is an important difference in their visual presentation. In the first sentence the word “must” is rendered in bold, whereas in the second sentence it is in plain text and “15 April” appears in bold. The proper sense of urgency and compulsion seems to have been replaced by one of contingency and delay. Although the second sentence states “as quickly as possible”, which is a weaker statement, the eye is drawn to “15 April”. Bearing in mind that the deadline for objections has been brought forward by a month to 30 June—a sensible change that we support—that means that there could be a delay of 10 months or more before a decision is implemented, which is simply unacceptable.
It is not necessarily for the legislation or the new code to undermine the effectiveness of the office of the adjudicator in a wholly unnecessary attempt to provide for circumstances that have not proved problematic under previous arrangements, so our amendment would put it beyond doubt that, where changes are required in response to valid objections, they must be implemented in time to benefit those who made them.
On constituting governing bodies, to which the Minister referred, it might be helpful if he offered some clarification. Our amendment was intended to make it absolutely clear what the Government’s amendments mean in relation to staff on governing bodies. In Committee, the Minister said:
“I am cautious about prescribing centrally the basis on which governing bodies should appoint people.”––[Official Report, Education Public Bill Committee, 31 March 2011; c. 811.]
Having had time to consider the matter, the Government and the Minister appear to have changed their minds completely. If that is the case, we welcome it. Will the Minister confirm that he now thinks that more than one member of staff could be a member of a governing body, which might help us in relation to our amendment? If he does so now, he might not need to later.
Mr Gibb
I am happy to confirm that we want to reduce the amount of prescription on how to constitute a governing body. After deliberation and discussions with Members of this House and in another place, we have said that we will prescribe one staff member and one local authority representative, but that does not remove the discretion of governing bodies to appoint others; it is merely stating that there should be one staff member and one local authority member.
Kevin Brennan
That is extremely helpful. The Minister’s words will probably satisfy us so that we need not press that amendment to a vote later.
The chief inspector and the question of whether schools can be exempted from inspection were the subject of our earlier debate and of some interventions by me, the Chair of the Education Committee and my hon. Friend the Member for Scunthorpe (Nic Dakin), who is no longer in his place—I almost said Grimsby, but it is important to get the right part of Lincolnshire. Those remarks, and what the Prime Minister said earlier today about coasting schools, bring the issue more clearly into focus. As it stands, the clause removes the requirement for Ofsted—in other words, the chief inspector—to inspect and issue a report on each school in England, at a frequency set out in regulations, that rates the overall quality of the school and sets out its areas for improvement. Clause 41 will have a similar effect on further education institutions, which will be debated in the second group of amendments.
In effect, the provisions would exempt certain schools from section 5 inspections. Furthermore, the exemption would not be for a fixed number of years, and neither would a school be exempt only until something indicated that standards needed to be re-checked, such as a complaint from parents or pupils, a change of head, or concern being expressed by the local authority. It is possible that, under the clause, some schools could be exempt from inspections almost in perpetuity unless they wanted to pay for one.
It was pointed out earlier that a school could still be inspected under the chief inspector’s programme of surveys of curriculum subjects and thematic reviews, during which time the chief inspector may elect to treat the inspection as a partial section 5 inspection. However, that does not mean that every school would be inspected—far from it. In the case of the curriculum and thematic reviews, only parts of the school’s performance would be looked at.
The Prime Minister said earlier today that he was concerned that comprehensives in wealthy villages and market towns were sometimes coasting, although I do not know why he picked out comprehensives; that could apply equally to grammar schools in some parts of the country. He said that the fact that their
“respectable results and a decent local reputation”
hid the fact that their pupils could be performing much better. We know how quickly schools can move, for a variety of reasons, from being outstanding to what the Prime Minister describes as “coasting”. The Opposition’s proposals to provide more triggers for inspections when real concerns arise should have been accepted by the Government.
When Sir Michael Wilshaw gave evidence to the Select Committee on 1 November 2011, during his pre-appointment hearing before taking on his role as the new chief inspector of Ofsted, he said:
“Ofsted is about raising standards and it seems to me that there are only two levers for raising standards; one is Government and regulation, and the other is Ofsted.”
He later went on to correct himself, saying that he meant “two main levers”, stating:
“In terms of accountability, Government and Ofsted are the two main levers.”
In relation to the amendments, will the Minister tell us whether he agrees with the new chief inspector of schools in that regard?
Damian Hinds
Does the hon. Gentleman agree that the theoretical possibility of a school not being inspected for a very long time is not at all the same as that being likely? Does he also accept that the total basket of performance indicators that will be available under the new system will give much more richness, and a greater ability to identify the appropriate times to make such interventions?
Kevin Brennan
There are lots of indicators now, but we need triggers to make inspections happen at the appropriate time. We have sought to achieve that throughout the Bill. Given the seriousness of the step that the Government are taking, and the lack of consultation on this proposal, it should at least be the subject of the affirmative resolution procedure the first time that it is put in place. To that effect, we have tabled amendment (a) and the related amendment (b) to Lords amendment 27. We feel very strongly that if the Secretary of State is not going to provide us with any more triggers at this stage, he should at least have to come forward with an affirmative resolution the first time such a provision is enacted. We also think there should be a time limit on the provision. Amendment (b) to Lords amendment 27 would mean that exemptions could hold for only seven years, so the Government would be required to renew regulations at least every seven years.
Kevin Brennan
Further, a school student might be attending an FE college as part of their school sixth-form studies, and the regulations would be different in those two institutions.
Mr Stuart
Yes, and Alison Wolf suggested in her report that more 14 to 16-year-olds should attend FE colleges, so this provision would affect them as well as 17 to 18-year-olds, for whom the provision might be less relevant. I hope Ministers will think about this anomaly and find a way of equalising the situation.
The Government make what seems like a very reasonable case on strengthening Ofqual’s enforcement powers. Ofqual does not have as wide-ranging powers as other regulators, and there is a very quick step from its making requirements on awarding bodies to the nuclear option of removing their ability to provide awards at all. It therefore seems reasonable to have more moderate powers in the middle, such as the power to make fines, but this Government are committed not to following such easy logic unless there is a very strong—nay, an overwhelming—case for giving new powers to some non-governmental, unelected quango, such as Ofqual, so in an intervention I asked the Minister to make the case. He made a brave effort, as he always does, being a highly esteemed colleague and an excellent schools Minister, but he really did not make the case.
We did not hear about the number of times that awarding bodies have deliberately flouted Ofqual’s requirements—that OCR, when required to do something by Ofqual, just ignored it, left it as long as possible and did it only if it felt like it; or that the lack of anything other than a nuclear button meant that OCR did not want to comply.
Following this summer’s examination paper errors fiasco, no one was more embarrassed and determined to put it right than the awarding bodies. They collectively and individually felt that it was embarrassing, and they wanted to put it right as quickly as they could. The numbers were somewhat higher than in previous years, but the attention paid to them this year was rather greater than the increase in problems, and I know at least one case in which there was only one error in 100,000 questions.
I want to see all such errors eliminated and to know that those bodies are straining every sinew to put the situation right, but I am not yet convinced that a fining regime, however conveniently it may fulfil the Prime Minister’s promise to do something about the situation, is the right approach.
Richard Fuller
I appreciate the opportunity to speak to the Lords amendments. I welcome the fact that in their lordships’ overall assessment, the main thrust of the Bill should pass through to Royal Assent. It is most welcome that the core objectives of what the Government are trying to achieve will make it into law. That will be welcomed in rural constituencies, as my hon. Friend the Member for South West Norfolk (Elizabeth Truss) mentioned, and in others. However, the Lords have made some suggestions, which my hon. Friend the Minister indicated that the Government would support. I would like to draw his attention to a couple of those suggestions with which I concur wholeheartedly, and others with which I concur partly.
My first point is about the Lords’ reinstatement of the duty on schools to co-operate with local authorities, which is specifically related to the well-being of children. That relates to the broader issue of how the new schools that are envisaged, and the ones that are already in place across the country, will co-operate with local authorities. Much attention has been given in the Bill’s earlier stages in the Commons to the responsibilities of schools with regard to local authorities, but as my hon. Friend the Minister knows, I often look at the matter through the other end of the lens and ask what is the responsibility of the local authority to co-operate with our schools.
I, and I think many Government Members, hoped that when the noble Lords considered that duty to co-operate, they might send the Bill back to this House with amendments that were somewhat more creative than simply placing into the Bill the original duty as it already stands.
Throughout our country, we are seeing a radical change in the relationship between local authorities and schools. Schools are gathering greater freedoms to operate independently. Those relate to not only financial status, but areas of operations, one of the most important being admissions policies, which I will come to. That liberalisation of the market for schools—if I can call it a market for schools—is very welcome, but as a consequence of those freedoms, new issues come up, such as how schools work together on behalf of their local community, and how in doing so, both as individual schools, in pyramids of schools or chain academies, they interact with local authorities, which are the democratically elected bodies in those areas.
In many cases, those relationships have been conducted positively in the past, but there is sometimes a contradiction between the schools’ best interests and those of local authorities. In that respect, it is a shame that the noble Lords have not sought to move the debate on the duty to co-operate forward to take us to the next stage of understanding. When the control over the education of our children is in the hands of such independent bodies, what will be the duty to co-operate between local authorities and schools?
Kevin Brennan
Does the hon. Gentleman agree that the duty to co-operate is not about the interests of schools or local authorities, but about the paramount interests of the child, which remain whatever school structures this Government put in place?
Richard Fuller
The hon. Gentleman is, as he has been throughout this process, a source of extreme insight and has expanded my knowledge. He is absolutely right that that is the key aspect. As he knows from deliberations in Committee, all Members on both sides of the House have sought to achieve that.
To the extent that it is not the structure that matters but the education of children, the hon. Gentleman is correct. However, the Bill is not a nudge along for the structure of our educational institutions but a more substantial change. I am therefore expressing the retrospective wish that their noble Lords had been somewhat more adventurous in defining some of the new scopes for duties to co-operate in their amendments. Had they done so, the goal of focusing on the education of our children, which the hon. Gentleman and I share with other hon. Members, including the Minister, could have been moved forward a little. My current concern is that there could be turf battles about who is responsible for what in the duty to co-operate.
Mr Gibb
Thank you, Madam Deputy Speaker. In the light of your ruling, I will make just one point to my hon. Friend which is relevant to the amendments. The performance tables will identify the results and show how well children did at primary school. There will be a column for children who achieve level 5 at key stage 2, and another column for those who achieve level 3 at key stage 2. There will also be columns for those with special educational needs and those with disabilities. That will help to identify those schools that are coasting, and we will then take action against those schools or help them to improve their results.
The hon. Member for Cardiff West also talked about triggers for inspections. That is a matter for Her Majesty’s chief inspector, but I can confirm that there will be annual risk assessment for outstanding schools, which will normally commence three years after the last inspection. Where there is a change of head teacher before that point, however, the chief inspector has agreed to bring forward the risk assessment, including an HMI review. Ultimately, however, we have to leave it to the professional judgment of the inspector to determine whether an inspection should be triggered. Factors to be taken into account might include: the performance data of a school that had previously been judged to be less than outstanding in achievement or teaching not showing signs of improvement since its last inspection; progress measures showing that pupils or students were not making good progress in comparison with similar groups nationally; or below-average attendances showing little sign of improvement. Many factors can act as a trigger for an inspection.
The hon. Gentleman also raised the issue of admissions. I thank him for his attention to detail in scrutinising the codes, but I can assure him that they are statutory. “Must” means “must” in those codes; they have the full force of the law. On his wider point, the vast majority of the changes can be implemented quickly, but there are cases in which they might take longer than 14 days, at which point 15 April will form an ultimate backstop. The key point in paragraph 3.1 of the code states that the adjudicator’s direction should be implemented as quickly as possible.
Kevin Brennan
I thank the Minister for his comments. Would he be prepared to put it on the record that going right up to 15 April should happen only on very rare occasions, rather than in the majority or a large minority of cases?
Mr Gibb
What I will put on the record are the words used in paragraph 3.1 of the code, which states that admission authorities must where necessary revise their admission arrangements as quickly as possible, and no later than 15 April, following the decisions to give effect to the adjudicator’s decision. It goes on:
“An Adjudicator’s determination is binding and enforceable.”
I will come back to that point when I address the hon. Gentleman’s amendments in more detail.
On Ofqual, the power to fine would be used only where that was the most proportionate response to an incident of non-compliance with its conditions. As I have said, Ofqual will consult on the use of its power and will publish a full statement as part of its qualifications regulatory framework setting out how and under what circumstances the power will be used. That will make clear Ofqual’s expectation that only serious or persistent breaches will lead to a fine. Of course, it will allow 12 weeks for responses to that consultation.
Mr Gibb
The incidents I would cite are those from this summer when there were persistent errors. The persistence came, in particular, after we had asked the awarding organisations to check that there were no further errors. They did those checks and confirmed that there were none, but then further errors were discovered and damage was caused. That is an example of persistence in the errors we are trying to eliminate from the system.
The hon. Member for Cardiff West asked for an explanation regarding Lords amendments 89 to 91 about land. The Bill introduces new powers to transfer the publicly funded land of foundation and voluntary schools and academies to free schools and academies when those schools close or the land is to be otherwise disposed of. Lords amendments 89 to 91 reduce the reach of those new powers so that they do not apply to land that is leased to a new academy by a private landlord. Where we are engaging in commercial negotiations with private landlords for the lease of land to new free schools, we think it is more appropriate to protect any public investment in that land by contractual means rather than in statute.
The hon. Gentleman also raised the PFI issue and I am happy to restate the purpose of amendment 34. Under section 6(2) of the Academies Act 2010, a local authority “must cease to maintain” a school once it converts to academy status. Some banks and local authorities have asked whether that prohibition on maintenance might prevent a local authority from making a payment under PFI or other contracts. Our view is that local authorities have always been able to use their own resources to provide assistance, including financial assistance, to academies and to enter into contractual commitments and incur liabilities on their behalf. We are clear that section 6(2) of the Academies Act does not prevent the continuation of those activities. All academies are and will continue to be maintained by the Secretary of State under funding arrangements entered into under section 1 of the Academies Act, and any assistance provided by local authorities to academies, whether financial or otherwise, will only ever be a proportion of the total expense. Amendment 34 therefore confirms that local authorities can continue to make payments for academies under PFI and other contracts.
My hon. Friend the Member for Bedford and the hon. Member for Cardiff West raised the issue of direct payment pilots. The Minister of State, my hon. Friend the Member for Brent Central (Sarah Teather), who has responsibility for children and families, wrote to peers in the other place explaining the importance of introducing this new clause and consulted on the text of the draft clause, including in relation to special educational needs and disability organisations as well as local government interests. The principles behind the clause—greater choice and control for the families of children with SEN—are shared across the House. Indeed, the clause is modelled on legislation on the direct payment health pilots that were introduced by the previous Government. Let me reassure hon. Members that the orders needed to give practical effect to the clauses are subject to the affirmative procedure. These are, after all, powers concerning pilots rather than a national scheme and the clause has a sunset provision of four years.
My hon. Friend the Member for Beverley and Holderness asked about anyone being able to refer complaints to the adjudicator. We do not believe this change will lead to many more complaints. The regulations on which we are currently consulting will ensure that repetitive, vexatious or anonymous complaints cannot be made. I hope that will provide him with some reassurance. On the issue of spite, which he also raised, “anyone” does mean anyone, so it could be a school or a charity. The only proviso is that they must be willing to put their name to objections and to refer matters that are new or substantially new to the adjudicator.
My hon. Friend asked about consistency in the referral of misconduct cases by schools to the regulator. Evidence suggests that there is already variation in referrals despite the blanket duty on employers to refer all cases, and this duty has not been affected. Employers will know when a case of misconduct is serious enough potentially to require a referral from the profession, and they can use the draft prohibition guidance, which I can send to my hon. Friend, to help them make this decision. If a member of the public is not happy with the decision, they can refer a complaint to the Secretary of State.
My hon. Friend also asked about Ofsted’s capacity to deliver more rigorous assessments. We have discussed and agreed the more rigorous risk assessment, and Ofsted has the resources necessary within its budget to achieve this. Every organisation has to prioritise its resources in the current economic climate and Ofsted is no different.
I thank my hon. Friend the Member for Bedford for his continued and vocal support for academies and free schools. I assure him that it is right that admissions at academies and free schools must comply with the admissions code as set out in their funding agreements. As with all other state-funded schools, complaints about admissions will now go to the adjudicator.
My hon. Friend also raised concerns about particular families who do not adopt personal budgets—one third is the figure he cited—and the support they require. He argues for having pilots, and that is what the new clause does. I share his concerns about the possible burdens on families. That is why the pilots will look at the support available to families and how the system can be as straightforward as possible to use, as well as at which families take up those payments and which do not. On the point that the hon. Member for Cardiff West made, cost-cutting is not a driver for this policy—it is about having greater choice and control.
On the issue of Ofqual and how the Conservatives could support a regime of fining by a regulator, my hon. Friend the Member for East Hampshire set out the reasons why the qualifications market needs to be regulated. I should like to make it clear that turnover will be determined in accordance with an order made by the Secretary of State and that Ofqual will consult on how the fining regime is to operate.
I listened carefully to the comments of my hon. Friends the Members for Bedford and for Stevenage about primary schools. Primary national offer day will be 16 April. The idea is to co-ordinate the date rather than to put any new pressure on parents to get their children into certain primary schools. It merely makes things easier and less stressful for parents rather than more stressful.
Let me deal briefly with some of the amendments tabled by the hon. Member for Cardiff West. He will know that we have listened carefully to the concerns expressed in this House and in the other place in response to our original intention to withdraw schools and colleges from the duty to co-operate. The evidence of that engagement is clear in these Lords amendments. We have removed the “duty to co-operate” clause as well as the clause that the hon. Gentleman seeks to amend regarding the children and young people’s plan.
The hon. Gentleman’s amendment (a) to Lords amendment 23 relates to our plans to allow anyone to refer an objection to the schools adjudicator about the admissions arrangements at any state-funded school in the country. The amendment would require admissions authorities and others to comply with the adjudicator’s decision within 14 days of receiving written notice of that decision. Current legislation in this area, which was introduced by the Labour party, requires compliance to be forthwith. Let me assure the House once more that our changes to admissions do not affect the adjudicator’s power to consider and decide on the matter put to him and other matters as he sees fit, or to make binding decisions as a consequence. The amendment would impose a stringent national timetable for the implementation of such decisions. It is based on two false assumptions—first that schools do not wish to put things right, which they do, and secondly that all situations are the same, which they are not. On that basis, I hope that the hon. Gentleman will not press his amendment to a Division.
Kevin Brennan
I am grateful to the Minister for those comments, but can he firm up what he has said by making it clear from the Dispatch Box that he sees no reason why, in the vast majority of cases, the schools adjudicator’s ruling should not be implemented if not forthwith, then within a very short period of time and certainly not at the last possible moment?
Mr Hayes
I am glad that I anticipated my hon. Friend’s point. Foresight is not essential for a Minister, but it is a great advantage, particularly when it can be displayed on the Floor of the House of Commons.
My hon. Friend the Member for Stroud (Neil Carmichael) mentioned growth and others have talked about progression, so in dealing with the remark made by the hon. Member for Liverpool, West Derby about happiness, I wish to draw his attention to Yeats. I know that the hon. Member for Cardiff West (Kevin Brennan), the shadow Minister sitting next to him, is a fan of Yeats. Lord Layard did such good work on this particular amendment, so I shall cite the following from Yeats:
“Happiness is neither virtue nor pleasure nor this thing nor that but simply growth, We are happy when we are growing.”
When apprenticeships are growing, I am particularly happy because it is testament to the success of our policies.
Kevin Brennan
He also said:
“No likely end could bring them loss
Or leave them happier than before.”
We look forward to the Minister’s end this evening.