Education and Adoption Bill

Lord Hunt of Kings Heath Excerpts

Thursday 5th November 2015 Grand Committee

Moved by

[Lord Hunt of Kings Heath]

3: Clause 1, page 1, line 15, leave out “may” and insert “must”

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have grouped Amendment 3 with Amendment 8, both of which concern parliamentary scrutiny in relation to the regulations concerning definition of schools to be dealt with under the coasting provisions. We have had a very interesting first debate, and the Minister has been helpful in clarifying that the coasting provisions apply to selective grammar schools and high-performing comprehensive schools. That is welcome. It is also welcome that he has clarified, as I understand it, that RSCs, albeit using the funding agreements, will take the same approach to academies as they will to maintained schools.

My noble friend Lord Knight has now had to depart, but he raised a very interesting point, which relates to parliamentary scrutiny. We are all agreed about the need to tackle coasting schools—there is no doubt whatever about that. However, part of the resistance there has been to it has been due to a feeling that the Government are partly motivated by trying to create academies by the back door. My noble friend Lord Knight put the point to the Minister that, if in the end the Government want all schools to be academies, which it seems that they do, why on earth do they not say that they are going to do that and then deal with the democratic deficit that undoubtedly exists within academies?

I was involved in the thinking behind the establishment of the NHS foundation trusts, and you could argue, very loosely, that they were a parallel movement. However, with the foundation trusts we were absolutely determined to strengthen local accountability by setting up a governance structure that involved patients and members of the public in appointing the boards of directors. In some of the debates we are having around academies, the department is missing a very big trick; my noble friend will come back to this when later in the Bill we come to the issue of parental involvement in decisions about whether a school is an academy or not. That is why parliamentary scrutiny here is so important.

The Minister will have seen the report of the Delegated Powers Committee on the provisions in the Bill. Obviously, Governments normally respond by agreeing to the recommendations made, and it would be interesting to hear from the noble Lord what the Government’s response is. Essentially, the committee thinks that there should have been a definition of “coasting” in the Bill. It says in the report that it thinks it is too “wide and open-ended” and that the delegation is,

“inappropriate given the fundamental importance of the … operation of the new section, and the significant powers which become exercisable in relation to a school once it becomes eligible for intervention”.

The committee obviously received evidence from the Minister’s department, but it says that it finds,

“unconvincing the Department’s explanation for putting the definition of ‘coasting’ in regulations … based on the practical difficulties associated with setting out in primary legislation the data sets and measures required to assess whether a school is a coasting school”.

The committee goes on to say that the explanation given by his department,

“fails to distinguish between two entirely different matters: the criteria and other factors which should apply in determining whether or not a school is a coasting school, and the detailed measures and data which are to be used to decide whether or not those criteria or other factors are met”.

In other words, it argues that the latter quite rightly could be put into regulations, but the former could be in the Bill. What is the Government’s intention in relation to that?

--- Later in debate ---

[Lord Nash]

My Lords, I shall speak to Amendments 3 and 8 tabled by the noble Lords, Lord Watson and Lord Hunt, and the noble Baroness, Lady Massey. As I promised earlier, I will also cover the similar element of Amendment 5 relating to the coasting regulations from the noble Lord, Lord Addington, and the noble Baroness, Lady Bakewell. Amendment 3 seeks to place a duty on the Secretary of State to make regulations setting out the definition of coasting. This goes beyond the current power in Clause 1, which provides that the Secretary of State may by regulations define what coasting means in relation to a school.

We have been very clear that we intend to make such regulations. In June, we provided an indicative set of regulations to Parliament for scrutiny. Last month we launched a public consultation on our overall approach to coasting and the detail of the definition set out in the draft regulations. I can reassure the House that our intention has always been that regulations will be made but I appreciate that, with this amendment being laid in this House as well as in the other place, there continues to be concern that regulations will not always be made. I have reiterated the Government’s commitment to making regulations today but will also reflect before Report on whether the primary legislation should be more explicit on this point.

Amendments 5 and 8 seek to ensure that the regulations defining coasting are subject to the affirmative resolution procedure each time the regulations are changed. As I have said, we published comprehensive draft regulations in June so that Parliament could understand and scrutinise our proposed approach. From these draft regulations, the House will be aware that the proposed approach relies heavily on references to the department’s performance tables which capture schools’ performance data, as well as defining the specific coasting bar which applies in each year.

Results for primary and secondary schools are published at two different points each year, which might necessitate changes to the regulations as national performance standards change. The performance tables are also technical in nature and so, if minor changes are made to their layout or content, this may also necessitate minor, consequential amendments to regulations. A change as small as a revision to a column heading in the performance tables would require a change to the regulations. Similarly, if the department were to change or merely update the published guidance regarding the calculation of Progress 8, for example, the regulations would again need to be updated. Requiring the consent of both Houses each time such changes were needed would seem an excessive use of Parliament’s time. We already publicly consult, however, when significant changes are made to accountability systems—for instance, as we did on the new measures coming in in 2016. I reassure noble Lords that, if major changes to the accountability system underpinning the coasting definition were proposed, such public consultation would therefore happen again.

I hope that, having seen the detailed illustrative regulations, as well as hearing my explanations today, Peers will understand why it would be very difficult to subject the regulations to the affirmative procedure each time a change is needed. I do, however, appreciate the concern of noble Lords who have tabled these amendments, as well as the concern of the Delegated Powers and Regulatory Reform Committee that due process should be followed. I will therefore reflect if there are any further reassurances that I can make on this point at Report. I hope that I have been able to assure noble Lords that we take their concerns very seriously, and I therefore urge the noble Lord to withdraw his amendment.

[Lord Hunt of Kings Heath]

I am grateful to the Minister for that response; he said that he would consider this between Committee and Report. My reading is that if he is not in the end prepared to accept the amendment, regulations will still have to go through both Houses. The difference is that if they are negative, in the Commons, you need a large number of MPs to say that they want a debate on it; in this House, only one Member can lay down a Prayer, and then there has to be a debate. So I do not really get that argument at all; one way or another, it has to go through both Houses. The issue here is that, by being affirmative, there has to be a debate and it is flagged up, because it appears on the Order Paper.

This is important stuff, and I doubt that the department will want to change the criteria all the time, for the very reason the Minister mentioned, about giving certainty to heads, which I understand fully. It is clearly so important that the affirmative procedure should apply. The Delegated Powers Committee does not say that lightly; it only says so if it thinks it needs to be sure that it is properly debated every time. However, I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

--- Later in debate ---

[Baroness Evans of Bowes Park (Con)]

My Lords, the noble Lord was right when he noticed that I would be responding to this amendment. I shall allow him and the Minister to continue their debate next week, when no doubt we will cover these issues in more detail, and I will focus on the amendment.

Amendment 4 proposes that a governing body must inform parents that a school has been notified that it is coasting. We firmly believe that, once a school has been notified that it is coasting, we should trust the governing body to engage parents as they see fit, exactly as the noble Baroness said. That is what we would expect of a school. In practice, we envisage that where a school meets the coasting definition, the governing body will voluntarily inform parents. Issuing a communication to parents is already the normal approach taken by schools following the publication of exam results or Ofsted inspections. In fact, schools are not required to notify parents of Ofsted judgments but they do, and we would expect schools to adopt a similar approach in this situation. We would certainly expect governing bodies to be as open as possible with parents.

In the modern day and age, with social media and the availability of lots of websites, we would also—

[Lord Hunt of Kings Heath]

I note what the noble Baroness said about schools and Ofsted inspections but I have certainly come across cases where schools and governing bodies have been very reluctant to release this information because they do not like what it says. I agree with the noble Baroness about parents and children, but there ought to be a guarantee or requirement that parents will receive information, whether it relates to Ofsted or is about coasting. I am afraid the fact is that some schools do not do the right thing when they get an adverse Ofsted judgment.

[Baroness Evans of Bowes Park]

I hope that the noble Lord will be pleased to know that I was going to go on to say that, in view of the concerns that have been expressed, we will consider how we can ensure, through the Schools Causing Concern guidance, that parents are sufficiently aware that their child’s school has been identified as coasting. We absolutely agree that that is important. Of course parents need to know. Our feeling is that governing bodies will provide such information but, in the light of the concerns raised, we are happy to consider being a bit more explicit. I hope on that basis that the noble Lord will withdraw the amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I do not understand why the Government do not want to deal with the issue of maintained schools feeling that there is not a level playing field in the approach that the Government take to academies and take to them. The Minister is always quoting achievements in academies, but very rarely says anything about maintained schools. He knows there is a huge variation in the performances of both academies and maintained schools. I do not understand why the Bill has not been used to issue a proclamation, in a sense, that academies will be covered in the same way. He has clearly said, twice now, that there is a level playing field and that he expects the RSCs to intervene in coasting academies—at least I think he is saying there should be no difference. Why then are the Government so frightened to put that in the Bill? They could find a way to do it by relating the principle to the funding agreement. That would be very easy to draft—parliamentary counsel could do it in five minutes—and I do not understand why the Government do not want to do it. It would reassure the whole education system that there is a level playing field. At the moment, it does not think there is.

--- Later in debate ---

[Lord Addington]

My Lords, this is an attempt to try to gain a little more clarity about the role of the regional schools commissioners. The aim of this amendment is to provide them with uniform criteria. I could expand at considerable length but this issue has been raised in the Commons Select Committee. We just want to know what criteria these individuals will follow. They undoubtedly have extreme merit and are doing a tremendously good job. I am afraid that I was not able to meet them on Monday. What criteria will they follow? Will the same standards apply across the country? It would be absurd if commissioners worked to different standards literally just across a line. So could we have some idea about what they are doing and can we hear that now? It will go into Hansard and we will have a little more guidance. If there is no way of applying uniform criteria, we have a real problem. I am assuming that the Government know how this is to be achieved—because, if not, there will be a big hole. I hope that there is no big hole. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, my Amendment 12 is in this group. The point the noble Lord has raised is highly appropriate. We want assurances about a consistency of approach throughout the country.

My own amendment is probing and I would like to have it confirmed that the function of the RSC can be carried out by a combined authority, as defined in Clause 8 of the Cities and Local Government Devolution Bill as it left your Lordships’ House a few months ago. If my reading of the Bill is right, can the Minister say whether it is intended in any circumstances that the RSC function would indeed be given to a combined authority? If not, perhaps he could say why not.

The Minister will be aware that the Cities and Local Government Devolution Bill gives a combined authority extremely wide powers; for example, the function of the police and crime commissioner and the entire commissioning and provision of health and social care can be devolved to the combined authority. Indeed, any function of a public authority in the area of the combined authority can be devolved to the combined authority. The definition of a public authority is very wide and includes a Minister of the Crown or government department. My reading therefore is that the functions of the RSC could very easily be given to the combined authority.

I find it interesting that in Greater Manchester—which, with Cornwall, is a pioneer of the combined authority concept—it has already been established in a memorandum of understanding between the Government and the combined authorities that health and social care will be devolved in their entirety to the combined authority. Obviously, I know more about health than education but there are great similarities. They are two essentially national services, locally delivered. Ministers are accountable to Parliament for their overall performance. Money is voted by Parliament for their funding.

If you look at the Explanatory Notes of the Cities and Local Government Devolution Bill as it left your Lordships’ House, it is interesting that clearly the core purpose of a combined authority is to boost growth and the local economy. If health and social care are considered to be part of that, why on earth is education not, given the Government’s own concerns that young people are leaving our schools system without sufficient skills to go into employment? I cannot think of a more closely related service than education to the economic prospects of a locality. The Explanatory Notes mention skills but are silent on education. I am assuming that the Department for Education has opted out of this. I would be fascinated to know why.

I would have thought that in some circumstances the combined authority or the mayor could easily perform the role of the RSC. As we have such a democratic deficit in education now, it would be one way of taking that—and I have listened to what noble Lords have said about the quality of RSCs and the work that they do—but putting it back into some form of local accountability. In the end this accountability issue will have to be addressed. But overall, in trying to ensure consistency of approach and linking RSCs back into some kind of democratic process at local level, the noble Lord, Lord Addington, and I are at one on this.

[Lord Nash]

My Lords, the two new clauses proposed concern the role and remit of regional schools commissioners, and would be placed after Clause 3.

We introduced eight regional schools commissioners last year to take decisions and provide advice regarding academies and free schools in their regions on behalf of the Secretary of State. These regional schools commissioners will also exercise the new and strengthened powers which the Bill introduces, to intervene in failing, underperforming and coasting maintained schools.

Amendment 11 was tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Bakewell. It proposes to require regional schools commissioners to use uniform performance standards and criteria when fulfilling the duties and exercising the powers described in the Bill, thus seeking to ensure consistent decision-making across all RSCs.

--- Later in debate ---

If combined authorities or elected mayors were able to appoint RSCs, as the amendment proposes, we would lose this robust accountability to Parliament through the Secretary of State. Having some RSCs accountable to mayors and others accountable to the Secretary of State would create a completely incoherent, mixed system.

[Lord Hunt of Kings Heath]

But, my Lords, that is exactly what is happening in health and social care. Clearly, in government as a whole, everyone is behind combined authorities. Why is the Minister’s department opting out of it? If he looks at the Cities and Local Government Devolution Bill, he will see that not only is there provision for any function of a Minister of the Crown to be devolved to a combined authority but there is a particular provision, because the Lords passed an amendment, to specify that the national characteristics of health and social care should be preserved within devolved health and social care. I do not understand why the education department, of all departments, is not playing in this area when the Government are putting so many eggs into it—I am talking about the northern powerhouse, obviously, with Greater Manchester at the core of it. I do not understand why his department is not involved or interested. If you take the skills agenda, you see that the whole point of combined authorities is economic growth; it must embrace the skills agenda. The Minister and I must share the desire that our schools play their part in making sure that young people are employable. I just do not get it; I do not understand why his department is opting out.

[Lord Nash]

I am afraid that the noble Lord has lost me with a lot of political theory. I am interested in—

[Lord Hunt of Kings Heath]

My Lords—

[Lord Nash]

If I may finish, I am interested in a practical system which actually works. We believe that we have devised one which is working extremely well. As I made clear in response to the Constitution Committee, this is maximum devolution to the front line. We trust teachers and head teachers to be responsible for their own system, and that is exactly the system that we have designed.

As I said, I am interested in a system that works, rather than one in the cause of some political theory. If combined authorities or elected mayors were able to appoint RSCs, as the amendment proposes, we would lose that robust accountability to Parliament and would have a system which is, frankly, totally incoherent, mixed and unworkable. I would rather have a system that works. Even those small MATs which operate across the regions that this would create would be working with multiple RSCs, which would add the complication of operating under multiple accountability structures. That would be confusing and chaotic.

Having additional RSCs appointed for combined authorities, further to the existing eight RSCs, would lead to significant additional costs. Overall, such a system would be confusing to schools, inconsistent, highly expensive and be adding unnecessary bureaucracy without bringing any tangible benefit to children’s education, which is what we on this side of the House are concerned with. Our current system of eight regional schools commissioners supported by a head teacher board is all about bringing decisions about schools closer to the front line. It ensures that experienced school leaders are the ones making and implementing decisions in their areas. They know what works best in their schools, how to address local needs and what the local priorities should be. This is therefore completely in keeping with the Government’s devolution agenda, and I urge the noble Lord to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, that was a quite remarkable speech by the noble Lord. He accuses me of political theory. His department has written a speech which essentially undermines the core purpose of the Cities and Local Government Devolution Bill. I do not think his department has read the Bill. He is saying that what the Government are doing with the setting up of combined authorities will lead to a completely incoherent approach. His answer is complete nonsense.

Clearly, I am not going to get an answer on this. I still do not understand why, when this will have massive implications for the devolution of central government powers, the education department seems to have completely opted out. I am absolutely speechless.

[Lord Nash]

As I said, we believe that this is not just devolution but devo max, if you like, to the front line.