Education and Adoption Bill (Ninth sitting)

Debate between Kevin Brennan and Steve McCabe

Tuesday 14th July 2015 Public Bill Committees

[Kevin Brennan]

I am very grateful to the Minister for that clarification. I am sure that, in future, he will not imply a causal link. In time, perhaps we will see what the UK Statistics Authority makes of our exchanges. It is a timely reminder for us all to use statistics in the appropriate manner.

Currently, the only powers that Ministers have regarding academies are in their funding agreements. Given the way that funding agreements have changed over the years, there is no consistency in those powers. Some, but not all, mimic the language of the 2006 Act.

Coasting is not mentioned anywhere in funding agreements because the concept is only being introduced through this Bill and is not applicable to academies. It is not clear how the Minister’s right to intervene in coasting schools, under his proposed definition or any other, can be applied to an academy. The model funding agreement echoes the 2006 Act. It does not echo the Bill. No reasonable reader would imagine that the coasting provisions could be read into the existing funding agreements.

It seems that the Minister has a choice. He could accept our amendment, which would bring academies within the scope of the Bill, or he could renegotiate several thousand individual funding agreements to ensure that coasting academies do not escape the scrutiny and intervention that he thinks is so vitally important—not because they are maintained schools, but because coasting educational establishments have an impact and an effect on children.

A wider issue is the use of private law to manage academies that are causing concern. Becoming “of concern” is a private contract law matter between the Secretary of State and the academy trust, but public law is used to identify, support, manage and improve provision in maintained schools that are causing concern. The Government should be asked why they do not want to bring academies causing concern into public law. Under the coalition Government, certain academy matters were brought into public law, when they were faced with the reality of managing a public education service by contract law—the situation that we are rapidly moving towards.

There are several examples. One of the most important is special education provision in the Children and Families Act 2014. An academy trust had shown it did not have to admit a pupil with what was then called a statement of special educational needs. Another is pupil admissions in the Education Act 2011. The Minister and I both served on the Bill Committee for that. We argued very strongly for and achieved direct power of the school adjudicator over admission arrangements. That was a welcome development. There are several minor examples such as infant free school meals in the 2014 Act. Can the Minister explain why he wishes to use inflexible private contract law to manage academies causing concern when by amending the Bill we could make matters much more straightforward?

Amendment 67 is about pupil referral units or alternative provision, as they are often now called. They are similarly not covered by the 2006 Act. This applies to both local authority maintained schools and to alternative provision academies. There does not seem to be any particularly good reason why alternative provision should be outside the terms of the Bill, given that the units are increasingly taking on the characteristics of schools with their own governance and financial arrangements. In this respect the scene is very different to that in 2006. At that time, pupil referral units were usually fully controlled units of the local authority rather than autonomous schools. However, the criteria currently proposed would of course be entirely inappropriate for pupil referral units, so if they are to be included, there would need to be a significant rethink on definitions and criteria. The Bill presents an opportunity to address this anomaly and this amendment is to probe further the Government’s thinking on this matter.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

While the Bill generally seems to have been ill-conceived—the fact that it has been dealt with in this back-to-front fashion shows how ill-prepared the Government were—does it not seem remarkable that alternative provision, the very pupils for whom one would have thought we would have the maximum concern, is relegated to two lines at the bottom of the Government’s explanatory statement, saying that they will consider the possibility of consulting on it later? That shows that the Government have not given any consideration to the needs of that particular group at all.

[Kevin Brennan]

Yes. My hon. Friend again puts it more eloquently and accurately than I could have. There is a general concern about a lack of attention to pupils with special educational needs and disability needs in a lot of the Government’s thinking, not just with regard to the Bill and this particular provision but more broadly.

The Schools Minister answered written question No. 2637 tabled by my hon. Friend the Member for Edmonton (Kate Osamor) on 22 June. We thank him for that answer, which stated that

“pupil referral units…will…not be eligible to be defined as coasting schools.”

It would, however, be possible to use secondary legislation under section 19 of the Education Act 1996 to include pupil referral units in the definition. The Minister said in Committee on 9 July, column 273, that he would consider extending the clause 7 duty to academise to pupil referral units using secondary legislation. We would welcome further clarity from the Minister on pupil referral units as well as his response to the remarks made by my hon. Friend in his intervention.

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[Kevin Brennan]

No, the amendment does not say that. As I said at the outset, we tabled the amendment to probe the Government’s real intentions, because the Government have said that they want to give schools an opportunity to improve if there is a coasting finding under the regulations, and yet that seems to be at a disjuncture with what was said in the Conservative party manifesto. So we want to know whether the Minister has changed his mind about what is in the Conservative party manifesto, or whether the Bill will implement what is in the manifesto, but not say that that is what it is doing. I want to hear what the Minister has to say about that. I am as impatient as he is to make sure that we improve schools—all schools, as I said earlier, including maintained schools and academies—on an equal basis.

Amendment 78 says that we should consider whether using combined authorities is a good way forward. It provides for mayors of combined authorities to exercise the responsibilities that have been delegated to regional schools commissioners, just as they will take on the role of police and crime commissioners. Such a change would go with the grain of what the Government claim is one of their central strategies. It is surely clear by now that running an education system through central control is not the way forward. Even academies find the EFA and the Department for Education a source of endless frustration, because they really do not have a grip on what is going on.

There was an article in The Times Educational Supplement on 13 July, in which academy sponsors talked about their qualms about the rapid expansion of the academies programme and how they were being pushed to take on schools at a rate that they did not think appropriate:

“DfE officials were ‘queuing up’ to hand over schools in special measures to willing academy sponsors. At one stage, officials even lost track of the number of academy orders that had been signed off.”

So there is concern out there in relation to that level of bureaucracy and centralisation, as expressed in the article in The Times Educational Supplement. Interventions can also promote conflict between Government and local communities. We have just had an example of regional schools commissioners allowing a school in Redditch to change its age range in a way that will completely disrupt the local three-tier school system, despite 92% of consultees being opposed to that change. There is an interesting article about that in Schools Week of 10 July, which shows the kind of tension that can emerge between central Government and local communities unless there is a better relationship than has been outlined so far in relation to the Bill. This is what happens when there is no accountability to local communities, so we would like to see a step towards stronger local accountability.

There is also the issue of the commitment given in the schools White Paper issued by the Government in the previous Parliament—“The Importance of Teaching”, published in November 2010, on the commissioning role of the local authority. I asked the Secretary of State when she planned to implement the commitment that was given in paragraph 5.39 of the White Paper to consult with local authorities and academy sponsors on what role local authorities should play as strategic commissioners when all schools in an area have become academies. I asked on 22 June in a written question, No. 2886, which areas have no maintained secondary schools and when the Secretary of State was going to start the consultation. The Committee might, I think, be quite shocked to hear that the Schools Minister’s reply was not entirely forthcoming. Can the Minister state whether the 2010 White Paper commitment still stands, what conditions are likely to be opposed, and whether it would be better for consultations to start now, as local authorities might then encourage the remaining maintained schools to academise in order to be in a commissioning role? I should be grateful if the Minister would clarify the status of that White Paper commitment—has it been abandoned or does it still stand?

Amendment 81 proposes that the Ofsted framework contain an additional requirement for the inspection of schools. It would require Ofsted to survey parents who live within a school’s catchment area but have chosen to send their child to a different school. It is intended to provide Ofsted and the school with richer information about the views of local parents—views that seem to be largely absent from the Bill. It would apply to both primary and secondary schools and we propose a consultation process for determining the weighting and reporting of the survey data within the final inspection judgment report.

[Steve McCabe]

It occurs to me that this would be a perfect opportunity to address some of the points raised earlier by our hon. Friend the Member for Hyndburn. If parents are having to pay for additional services to compensate for the inadequacies of the school, it might be masked, as we have heard, by the assessments. If parents were able to reveal that information it would give the Minister access to a whole new range of data that we might otherwise miss.

[Kevin Brennan]

Yes, indeed. My hon. Friend is right. It seems to me that it is important to understand what parents think about local schools and why it is that parents might choose to send their children to schools other than the one in their local area. It would give a bit more contextual information that could be useful for school improvement, a positive purpose. I wonder whether the Minister has considered this approach; it was something that was mentioned in our 21st century schools document some time ago. I should be grateful for the Minister’s response on that.

Education and Adoption Bill (Tenth sitting)

Debate between Kevin Brennan and Steve McCabe

Tuesday 14th July 2015 Public Bill Committees

[Kevin Brennan]

I am grateful to the Schools Minister for his response, and I apologise. I did not realise that there was a distinction between standing down and resigning, but obviously there is. It is a subtle distinction that is lost on me, but I am sure that we will hear some more about why he stood down at some point in the near future. I congratulate Mr Smith if he has been poached by some other employer for his great talent. It is a wonderful thing if that is the case, although the timing seems a bit odd, while we are completing the Committee stage of the Bill, where we are discussing all these matters. As the Minister pointed out earlier, this is a very new system and regional schools commissioners have been in place for a very short period of time. However, if it is the case, as the Minister has intimated, that Mr Smith has been headhunted and offered a higher job elsewhere, we should all congratulate him on that. If there is any other reason behind his leaving his post, I am sure that we will find out what it is in due course.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

How many regional schools commissioners does my hon. Friend think would have to be poached or stood down before the Bill completes its Parliamentary stages before it is a problem for the Minister?

[Kevin Brennan]

That is probably something that is for the Minister to answer, rather than for me to speculate on. I am not a mind reader, but he may well have something to tell the Committee about that in due course. It is a serious matter, and I accept there may be a very good reason for Mr Smith’s departure. However, up-to-date information about regional schools commissioners is pertinent to the Committee’s proceedings, given that they featured so much in our discussions—even though their role is not set out in statute—and that so many of the Bill’s provisions will be implemented by them. It is right that the Committee has the most up to date, breaking news on regional schools commissioners and their current status.

It is not our intention to press matters to a vote on this particular group of amendments. Given that this is the last day of our proceedings, I hoped that the Minister might have felt generous enough to make a traditional Government-type concession on the negative resolution and affirmative resolution issue that we often debate, as a gesture towards the rest of Parliament. Perhaps further down the parliamentary line we might be offered that little titbit for all our efforts in Committee. However, at this stage, the Minister is obviously feeling that he needs to be a little tighter with his concessions than we had hoped for at this stage of the Bill. He is a good-natured and generous-hearted individual, so who knows—down the line we may be able to get that concession from him and others.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Steve McCabe]

On that point, would the public not find it puzzling that we have a set of reforms in an age of transparency that rely on the Government concealing key information that could be crucial to the argument?

[Kevin Brennan]

My hon. Friend is right. We have seen a deep reluctance from the Department for Education to engage properly at times with the freedom of information legislation in its reaction to requests for information from members of the public, journalists, Members of Parliament and others.

We see that sometimes in the way in which parliamentary questions are answered, as I have highlighted. I appeal to Ministers to ensure, when they are going through their red boxes, that they send back inadequate responses if the drafting is the cause of the problem, or not to redraft them in a way that makes it necessary for Members such as myself to ask pursuant questions. That is a waste of public money, but it is what we will do until we get the answers. We could all save ourselves some time and misery by behaving differently.

The Government should publish the grades given to academy sponsors because that information is in the public interest and taxpayers’ money is being spent. We are talking about the future of our children and people being given funding to run some of our schools. It is perfectly reasonable for Her Majesty’s chief inspector to be given the power to inspect academy sponsors. The Education Committee has supported that request. On that basis, I would like to test the view of the Committee and ask my hon. Friends to join me in supporting new clause 2.

Question put, That the clause be read a Second time.

Education and Adoption Bill (Eighth sitting)

Debate between Kevin Brennan and Steve McCabe

Thursday 9th July 2015 Public Bill Committees

[Steve McCabe]

As my hon. Friend demonstrated, there is little evidence to support the Minister’s arguments. In truth, the clause is the authoritarian face of this Government. This is the Government at their dictatorial worst. The Minister will be stripped of all flexibility as a result of the clause, which he should call the “compulsory academisation at all costs” clause, because that is what he really seeks to achieve here.

[Kevin Brennan]

My hon. Friend, once again, is right. We have to wonder what the Secretary of State’s problem is. Does she not trust herself to make the right decision? Why does she have to legislate to ensure she makes the right decision? It is a highly unusual clause, and I am racking my brains to think of something similar to it. I am sure that some constitutional experts, many of whom will be following our proceedings, will dig some up. I hope that this peculiar clause will be removed from the Bill, if not now then at a later stage, not because it is not vitally important that we do everything we can as quickly as possible to improve our schools, because it is, but simply because it is extremely foolish for Ministers to tie their hands and prevent themselves from carrying out other forms of intervention that might be the right pathway for improving schools in the long term.

The Government do not say enough about pupils who are languishing in failing academies—25% of failing schools are academies. From listening to Ministers’ wonderful anecdotes about academies that are thankfully successful, it would be easy to think that failing academies do not exist. We believe that a judgment about the future of a school should be based on evidence and on the particular circumstances of the school and the community. There should be a proper, open debate about that. There should be no stitching up of things behind closed doors.

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[Kevin Brennan]

No one is suggesting that anyone should be given a free rein, to use the hon. Lady’s expression, and neither is anyone suggesting that it might not be appropriate in certain circumstances for an interim executive board or an academy sponsor to have to step in to run the school, but the clause goes way beyond that contention.

[Steve McCabe]

Following the logic of the hon. Lady’s argument, would it not also be reasonable to assume that if the school had got to such a state, the Secretary of State must have been negligent in her duty and would therefore be ill equipped to make a judgment?

[Kevin Brennan]

My hon. Friend is right. Indeed, every academy that is rated “inadequate” is the responsibility of the Secretary of State, and is now the responsibility of the regional schools commissioners. Their failure has to be accounted for according to the logic of the Government’s approach.

I simply ask, given the rhetoric of the Secretary of State, how on earth the Schools Minister can square such rhetoric with the reality of the clause. Is it not the case that the freeing up of governors mentioned in the Secretary of State’s speech was just empty rhetoric? Removing their freedom is the reality.

Education and Adoption Bill (Seventh sitting)

Debate between Kevin Brennan and Steve McCabe

Thursday 9th July 2015 Public Bill Committees

[Kevin Brennan]

No, it is not. It is what one should be doing when considering the best way to improve the school, which is to look at the evidence. What is the evidence that suggests that a particular approach should be taken? The problem with the clause is that it simply fetters the Minister from any other action, even if that action is one the evidence shows would be better. Mature reflection means considering all of the evidence available.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

On a minor point, I notice that the Government have announced this morning that there is going to be a period of “mature reflection” on their plans for EVEL. Is that actually the Government deciding to waste time?

[Kevin Brennan]

Obviously we are now to have two versions of EVEL. I assume that the one they are going to do now is the lesser of two EVELs. I apologise for that. We shall see in due course whether that is the case.

I will come back to amendment 40 later. Returning to amendment 39, we are simply asking the Secretary of State to take the appropriate and best available advice. Her Majesty’s chief inspector is an independent voice in the system—so independent that Ministers seem to have lost a little bit of faith in his willingness to do whatever they would like him to. Nevertheless, the role has independent status for a good reason.

The chief inspector will have a view on the strengths and weaknesses of the school concerned and the kind of support it needs most, and on the effectiveness of sponsors. In our view, he should not be obstructed from scrutinising sponsors much more carefully than happens now. He will also have a view on the effectiveness of particular local authorities and on schools that might be involved in providing support to another school that needs it. Why would the chief inspector not be listened to? Why is the Secretary of State so sure that she knows best in every case and that she does not need the view of the person paid to be her principal source of independent advice?

The current chief inspector, Sir Michael Wilshaw, may not always say what people want to hear. All sorts of people might not want to hear what he has to say, but that is a poor reason for not listening to him. There may be a very good reason why a school should not be academised. As the hon. Member for Mid Dorset and North Poole pointed out, amendment 40 allows for an opportunity for mature reflection. Perhaps the word “mature” is otiose because I was not going to propose any immature reflection, but amendment 40 allows for a period of reflection on the need for academisation. It is entirely possible to debate whether, in particular circumstances with particular sponsors, the academy model is the best. There are clearly cases in which it has worked, and we very much have supported that approach when it is appropriate.

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[Kevin Brennan]

No, it was not, Sir Alan. I supported Lord Adonis in what he was doing. He was making a targeted intervention, which was very well supported by Ministers and quality sponsors, and using it to try to turn around schools. As I have made clear, I am not opposed to that. I am opposed to the idea that only one solution can ever be attempted and that Ministers should not even be allowed to attempt another solution to bring about school improvement.

We are moving to a system in which many more schools will be subject to academy orders, and Ministers will be scrabbling around looking for suitable sponsors for those schools. We already have plenty of evidence, even from the current academy programme, that low-quality academy sponsors have had schools removed from them because they have failed to do their job properly.

[Steve McCabe]

Is not this the Minister’s problem? Lord Adonis was creating an additional model, something that we could do that was different and extra, where we felt that we had tried everything else and the school had continued to fail. The Minister is seeking to sweep all of that away and now have one single model and, when it fails, or when it cannot raise good-quality sponsors, the Minister will be in a straitjacket of his own making. Is that not the fundamental problem?

[Kevin Brennan]

As ever, my hon. Friend has put it far better than I could; he is absolutely right. Amendment 45 would allow the Secretary of State the opportunity to prove her case, by commissioning that independent research in order to see whether only this pathway is the right one for school improvement.

Education and Adoption Bill (Third sitting)

Debate between Kevin Brennan and Steve McCabe

Thursday 2nd July 2015 Public Bill Committees

[Steve McCabe]

Yes, the Minister certainly has foiled them again—that is good. I wish him well and hope that he will continue in his post for quite some time. As we all know, reshuffles are fickle affairs, a bit like a Boris bus—one can never be too sure when the next one will turn up.

I tabled the amendment for two reasons. First, it provides me with the opportunity to query whether it is right that the Minister should have such unconstrained power as back-up, after setting out to convince us that it is not necessary and that he hopes never to use it. Mr Chope, in another parliamentary guise you are only too aware of the dangers of too much unnecessary legislation. Many is the Friday I have listened to you wax lyrical on such dangers, warning us that we have far too much legislation and should only legislate when it is absolutely necessary. That is the situation today with clause 13 and the power that would be afforded to the Minister to give directions under proposed new section 3ZA(1).

If the situation changed and if the Minister’s optimism and persuasive charm relating to achieving consensus evaporated, and he or a successor found himself or herself driven to use coercive powers to make changes in our adoption system, those powers should have been acquired by parliamentary order, subject to parliamentary scrutiny.

[Kevin Brennan (Cardiff West) (Lab)]

My hon. Friend is reaching the nub of the argument and the essence of the amendment. Unless the amendment is agreed to, we will be legislating and putting this measure into the Bill—not writing an instruction for the Minister for his term of office—where it will remain unaltered unless altered by further legislation. Should not we always bear in mind at all times that it is not a matter of good will towards a particular Minister, but about legislation that will sit there unaltered unless we amend it?

[Steve McCabe]

My hon. Friend is right. This is a decision for the foreseeable future and once put in place it will not be subject to parliamentary scrutiny, which is the whole purpose of our being here today. Since the Minister and his officials and advisers believe that such an order, or powers of direction, would be used very sparingly indeed, altering it would hardly be likely to take up a great deal of parliamentary time. We have to assume, judging by the Minister’s reasoning, that any orders to be decided on in the House would be remarkably sparse. In fact, it is fair to say that it would be merely a guarantee or a backstop for Parliament, and a chance for Parliament, rather than a Minister or his officials, to have the final say on changes that were about to be imposed. Such changes could not possibly be consensual: indeed, they would be controversial and objected to in some quarters; otherwise, the Minister clearly would not have resorted to parliamentary powers to impose them. Is not that, as my hon. Friend the Member for Cardiff West says, the very reason we are here? We are here to scrutinise legislation, safeguard against excesses on the part of the Executive and ensure that Parliament, not Ministers, provides the checks and balances on excessive use of power.

Secondly, discussing the amendment provides the Minister with the opportunity to explain the manner and circumstances in which he might the use the powers he is seeking. During the witness session, I drew his attention to a remarkably similar situation in the other place during discussion of clause 3 of the Children and Families Act 2014. On that occasion, his noble Friend Lord Nash accepted that a power to require all local authorities to undertake joint arrangements would need to be subject to “full and rigorous scrutiny” by Parliament.

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[Kevin Brennan]

Is not the point that—[Interruption.] I am sorry, I cannot take an intervention from the Minister for Schools during an intervention. Is not the point that the Minister using the orders in this way might be subject to judicial review, which would delay matters even further, at great expense and time? If there were a parliamentary process by which such rare decisions could be scrutinised, it would be much more efficient.

[Steve McCabe]

I cannot believe that any of us would want unreasonable delay or the incurring of unreasonable expense. We want to be sure that the powers secured by the Minister are fair, reasonable and adequate for the required purpose, but also subject to sufficient scrutiny, so that they are not open to misuse or abuse.