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21:44 - Division on Amendment 63A - Ayes: 44 / Noes: 118 - Amendment 63A disagreed.
Lord Hill of Oareford
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, in Grand Committee we debated at some length the merits of Clause 30, which covers the duty to co-operate. Following the debate, I undertook to reflect further with my ministerial colleagues on the issues that noble Lords had raised. I also had an opportunity to discuss things further with the noble Lord, Lord Laming, my noble friend Lady Walmsley, the noble Lord, Lord Touhig, and others over the summer. I am grateful to them for their time and advice. As a result, we tabled amendments to the effect that Clauses 30 and 31, which were linked, should not stand part of the Bill.
I believe that the noble Lord, Lord Laming, accepted that the Government were in favour of schools working together, that we felt that they did not need a duty to do so, and that a number of schools had made that case strongly to us. However, I also accept the point that he and my noble friend Lady Walmsley made 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 to this sector 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. I believe that that move will be welcomed by many noble Lords, including those on the Front Bench opposite, who I know shared the concerns that were raised. I repeat my thanks to noble Lords who have worked with me over the summer. I beg to move.
Baroness Walmsley
My Lords, I am most grateful to my noble friend for listening to our views and responding in the way that he has. It is quite rare in our proceedings to find a government amendment that has names from those on all other Benches attached to it. In this case the accolades and plaudits that the Minister will get from all noble Lords are well deserved.
In the letter to the noble Baroness, Lady Hughes, of 6 October, the Minister said:
“While we work through with interested parties as to how the proposals in the Green Paper on SEN and disability will promote better collaboration, we are happy that the duty to co-operate should remain”.
When the legislation comes before us, which will result from the SEN Green Paper undoubtedly—I assume that will be some time next year—can my noble friend assure us that the duty to co-operate will not be deleted in that legislation without consultation with those of us who have expressed the wish to keep it in this legislation?
Baroness Howarth of Breckland
The Minister knows how much I welcome the amendment. I have not been part of the formal consultation but have managed to speak to him on a number of occasions informally and impressed on him the importance of local authorities and schools working together, simply because in doing so they learn each other’s minds. One area that has always improved is the safeguarding element between them because of working together. I thank the Minister for what he has done and, like the noble Baroness, Lady Walmsley, I hope that he will maintain that co-operation in the legislation throughout our future debates.
Baroness Howe of Idlicote
My Lords, I, too, welcome the government amendment—or everybody’s amendment, really. It clearly is right and proper that schools and children’s services play their part within the broader community. In a recent survey of almost 1,000 governors, carried out by the National Governors Association and the TES, a significant majority of governors agreed that schools should play a key role in the provision of children’s services in the area. Indeed, that makes sense, and is surely what the Government were aiming to do—to get everybody involved in children’s education to work together for their benefit.
Baroness Hughes of Stretford
My Lords, I, too, warmly welcome the government amendments not to repeal the duties in Clauses 30 and 31. The Minister probably had to do some convincing back at the ranch, so to speak. It would be rather surprising if he did not, but I am certainly glad that those provisions will remain on the statute book.
I have a few questions about the situation now. Despite the measures in the government amendments, there is some confusion about the Government’s commitment. I perhaps echo something of where the noble Baroness, Lady Walmsley, is coming from. Amendment 62 restores Section 10 of the Child Care Act 2000—the duty to co-operate to improve well-being. That Section 10 refers to “academy” as one of the schools on which the duty is imposed, but as we know, Clause 52 of the Bill creates three different types of academies: academy schools; 16 to 19 academies; and alternative provision academies. First, for the avoidance of doubt, is it the Minister’s understanding that the duty to co-operate will apply to those three types of new academies, as well as the generic term in the Child Care Act?
Secondly, there has been a revocation of regulations that were introduced some time ago to apply the duty to pupil referral units. The Government have already revoked that requirement. Can the Minister assure us that he will now overturn this revocation and bring pupil referral units back into the duty to co-operate, as was originally the case before the Government acted?
Lord Hill of Oareford
My Lords, I am grateful for the response from noble Lords. The accolades predicted by my noble friend Lady Walmsley were not heaped on me in quite the numbers I might have hoped for, particularly from the noble Baroness, Lady Hughes of Stretford, but I am grateful for the ones that I received. I am grateful to noble Lords for helping me get to this position.
In response to the point made my noble friend Lady Walmsley, which also picks up on one of the points raised by the noble Baroness, Lady Hughes of Stretford, yes, with regard to future legislation to do with SEN and trying to bring about greater partnership, there clearly would be consultation with noble Lords in the way that my noble friend suggested were any future change to be proposed. Whether it is or not, I do not know. Time will tell, in the context—which I think noble Lords welcomed—that we should look at this issue in the round, in terms of our plans for trying to encourage greater partnership working. That is something we are keen to do.
On the specific question asked by the noble Baroness, Lady Hughes of Stretford, about academies, I can assure her that it will apply to all the types of academies. On the guidance, it was our view that the 100 or so pages of statutory guidance, and, indeed, the regulations around the children and young people’s plan, were overly proscriptive. Those requirements went last August, as the noble Baroness, Lady Hughes, said. I am not certain that their departure has been enormously noted. The key point is that, with the duty now in place, local authorities will be able to develop effective plans with partners that reflect local priorities. The Children Act 2004 sets out the overarching requirement for the local authority, schools and other partners to co-operate to improve children’s life chances—through joined-up planning, for example. We think that local areas will be able best to judge what should be in their plans.
I know that there were a couple of other important points that the noble Baroness raised. As I do not want to get anything wrong, I will, if I may, follow that up with her in correspondence.
Lord Hill of Oareford
“( ) In section 84 (code for school admissions) in subsection (2) after “requirements” insert “which ensure fair access to opportunity for education”.
( ) In section 84 (code for school admissions) in subsection (2) after “other matters” insert “which ensure fair access to opportunity for education”.”
Baroness Hughes of Stretford
My Lords, I will speak to Amendments 63A and 66A, which relate to Clause 34, on the subject of admissions. Amendment 63A would require the code on school admissions to have a duty to ensure fair access to opportunity for education. Amendment 66A would require the Secretary of State to promote fair access to education and training. We regard those two amendments as consequential, one on another.
Let us remind ourselves briefly of the very important debate we had in Grand Committee. Many concerns were expressed about the provisions in the Bill, and the way the Government were changing the arrangements on admissions. As it stands, the Bill introduces a number of changes to admissions. These include reductions in the powers of the school adjudicator. The Bill removes the power of the adjudicator to direct a school or a local authority to change those of its admissions policies which breach the code. It removes the power of the adjudicator to look more widely at school admissions and practices when they receive a specific complaint. It also abolishes local admissions forums, which can resolve parents’ issues locally and avoid complaints going to the adjudicator.
The Government have brought forward some minor amendments, which we will discuss after this group. I thank the Minister now, as I will later, for his Keeling schedule, and the efforts he has made to explain those amendments. They are important, but they do not address the subject of the amendments in the current group. These amendments would require the Secretary of State to promote fair access to education, and to ensure that the admissions code also required fair access to opportunity for education.
So why is this amendment necessary? It is necessary because academies are their own admissions authorities and as the number of academies grows, which is the Government’s intention, to a point where most or all of our 20,000-odd schools are academies, parents making applications will face a bewildering and inconsistent patchwork of different admission arrangements at different schools.
In fact, there is already information that this is the case in some boroughs where the majority of secondary schools are academies. For example, someone might live very close to a school, but that school does not have as one of its admission criteria proximity of the pupil’s home to the school, so the pupil could not satisfy that criterion. But the same child may live too far away from the next nearest school which does admit pupils on the basis of proximity. There is a real problem for parents in the future as more schools become academies. Schools that are highly performing are often very popular and it is crucial to ensure that access is fair so that children from all backgrounds can benefit. Even the most articulate parents and those who know the system best might struggle in a borough in which every single school operates a different set of admissions criteria, but for those for whom English is a second language or who feel they can navigate the system less well, the risk must surely be that their children simply end up in those schools that are undersubscribed and where others choose not to apply. However, since it is not yet the case that every school is an outstanding school, parents’ ability to choose a school in a transparent way within a fair and consistent admissions system is even more important.
In Grand Committee, I noted that the new draft admissions code contains the word “fair” 26 times, including in the line:
“The purpose of the Code is to ensure that all school places for maintained schools … and Academies are allocated and offered in an open and fair way”.
But using the word “fair” so many times does not give the code the duty to ensure that fairness, and that is what these amendments would achieve. They would also hold the Secretary of State accountable for ensuring that access is fair. This goes to the crux of the debate in Grand Committee because, leaving aside the detail of the Government’s arrangements, there is a great deal of concern that responsibility for ensuring fair access should be built into the arrangements on admissions. Some similar amendments to those I am putting forward today were tabled in Grand Committee, and the noble Baroness, Lady Walmsley, said that what concerned her was that someone should have oversight as to whether fair access is going on. I agree with her, and I note that the noble Baroness and her colleagues have tabled similar amendments.
In Grand Committee the Minister told us that the draft admissions code is designed to ensure fair access and local authorities are under a duty to exercise their functions with a view to ensuring fair access to opportunity for education and training. But in an increasing number of cases, particularly at secondary level, whereas I have already said that there are no or few schools in which the local authority is the admissions authority, because they are all academies, it is difficult to see how this will protect parents and children. That is because so far as admissions are concerned, the local authority is irrelevant. So Amendment 66A would give the Secretary of State a duty to promote fair access, while Amendment 63A would ensure that all admissions authorities, when setting their criteria, would have to set them so as to ensure fairness of access. The Liberal Democrat amendment also tabled in this group would have the same effect as our Amendment 66A, but we have used the term “promote fair access” while they have used the words,
“to ensure fair access … as far as is reasonably practicable”.
I do not think that there is much to choose between them.
This is not a debate about the detail of the Government’s proposals. It is an argument that says: given the changes the Government are making—dismantling to some extent the checks and balances in the current system on admissions—and the ambition that every school should be an academy and therefore its own admissions authority, it is vital, in our view, that there is an overarching obligation on the admissions code to ensure fair access and that the Secretary of State has an overarching duty to be accountable for promoting fair access overall.
As I said in Committee, it is not that we are not in favour of more freedom and autonomy for schools, but we believe in trying to achieve a balance between the interests of schools on the one hand and the interests of parents and children on the other. There should be a duty outside the school system itself—that is, in the admissions code and with the Secretary of State—to ensure that that fairness is really built into the system and that the system is really operating in that way. I beg to move.
Lord Northbourne
My Lords, I hear the expression “fair access”, but it is possible to develop arguments for different kinds of fairness. Is “fair access” clearly defined anywhere? We are turning this legislation on the assumption that we all agree about fair access. However, fair access might be for the poorest children, or for the children with the greatest educational need, or for the cleverest children, as they are the children who are most likely to profit from an excellent education. Can we have a definition of “fair access”?
Baroness Walmsley
My Lords, I see that the noble Lord, Lord Northbourne, is exercised by his inability to define what a parent’s responsibilities are. Along the same lines, he is looking for us to define what “fair access” is tonight.
I would like to speak to my Amendment 70 in this group. It is identical, I think, to the one that I tabled in Grand Committee when I raised this issue. As the noble Baroness, Lady Hughes of Stretford, said, we are making some changes in this legislation to the powers of the adjudicator. I was concerned that, since the adjudicator cannot look at wider issues but only at the complaints put before him or her, there was nobody who could take a view across the piece and see whether injustices were arising in different places in the country. Indeed, if one could see a pattern emerging, somebody ought to do something about it.
I followed up our debates in Grand Committee by raising the issue with the Secretary of State. I pointed out that we on these Benches do not usually want to give additional powers to the Secretary of State, but in this case we thought that it was necessary, partly because, as the noble Baroness, Lady Hughes, said, the schools landscape is becoming more and more complex and diverse and many schools are now their own admissions authorities. So I am pleased to say that, along with my noble friend the Minister, my right honourable friend the Secretary of State is of the view, as I understand it, that he already has these powers and duties. The only reason I tabled my amendment again was to give my noble friend the opportunity to put it on the record under which statutes the Secretary of State already has these duties. If that is perfectly clear, I see no reason to press my amendment.
Baroness Morris of Yardley
My Lords, I support the amendments and I, too, look forward to the Minister’s reply. I learnt last week that I cannot speak after him, so I may as well speak now in anticipation of what he might say.
I think that this is a really tricky issue. My noble friend was right to say that if more schools are becoming their own admissions authorities, that is when the problem sets in. The system can just about cope with one or two schools being their own admissions authorities, but, to recall a bit of history, the reason why the legislation that is now being repealed and changed got on the statute book in the first place was that some London boroughs were already in a position, mainly through the predominance of church schools, to make their own admissions arrangements. The sort of situation that my noble friend described of some children always missing out on the oversubscription criteria, through no fault of their own, is not something that he imagined; it actually happened in some of the London boroughs. That is why what I can see might look like a fairly complicated system of controlling admissions came about. It could be even worse if we move to a situation where nearly every school is its own admissions authority.
I have two or three points on this. I do not speak for my party on this because I know that this is not my party’s position but, frankly, I have never seen why being your own admissions authority is a freedom that one should have. Heads need freedom to run their schools but not to select the students who should go through the gates and enrol on the register in the first place. That has always been my view, even when my party was in power. Maybe one could live with it then because there were not as many schools with their own admissions arrangements, but I really cannot see the point of it. I cannot see what advantage there is to a child or a child’s parent.
The reason why this is so important is that we all know the trauma that some parents and children go through when unable to secure an appropriate place at the age of 11. We have all seen children whose start at secondary school is blighted by the fact that they did not get the place that they wanted. We have to live with that; life is not fair and not everyone can have their first choice. Imagine this, though: we create a situation where some child gets to the age of 11 and cannot get a suitable place because they do not fit the rules. That is not the same thing as not getting your first choice. No one wants you, and you end up getting your fifth or sixth choice, all because of this contradictory oversubscription criterion.
I come to the same conclusion as others, despite my relatively strong views on this. I do not say that this is a freedom that schools ought to be granted but, if I accept for a moment that that is to happen, I honestly cannot see how the system will work unless there is a referee in the middle putting down some ground rules. The amendments, containing an overarching duty to ensure fair access, are right.
My last point is this. Let us be clear: schools will play these rules for all they are worth. All the history of schools being their own admissions authorities shows that some of them—not all, but a good number—will seek to admit the children who they want to admit, and they are not usually the poor, the dispossessed and those who do not like turning up to school. I am not just making this up. There is no greater advocate or defender of teachers than me in almost all ways but all the evidence shows that, when the admissions arrangements can be controlled, the schools tend to do so in the schools’ favour and not in the pupils’ favour. We are not on a level playing field here. Schools will not play fair without some overriding principle, and the one that is in the amendment would suit the purpose very well. I support it.
Lord Knight of Weymouth
My Lords, in some ways there is not much more to add, but I want to reinforce this point. I understand and have sympathy with a model of school system improvement that builds on the international evidence by the likes of Michael Barber, through his work at McKinsey and elsewhere, on the importance of school autonomy, even if it is autonomy collaborating with others, as part of driving forward school improvement. If you go for that big time, as this Government have done with the rapid expansion of autonomous schooling through academies and free schools, there are certain fundamentals that we have to be clear about the Government retaining responsibility for.
I suggest that the core functions that the Secretary of State has to hang on to and be held accountable for in this Palace are fair funding, fair admissions and objective inspection. We can argue about some of the other stuff, such as how much of a curriculum there should be and the teaching of history in school—we debate that beautifully and with much erudition. At the core, though, it is those three things that the Government should be concerned about in order to ensure that the operation of the market, which is almost what autonomous schools become, does not disadvantage those who are least articulate, least advantaged and least able to help themselves. It is a struggle for the noble Lord, Lord Northbourne, to define fairness in this context but for me fairness is ensuring that no child or family is disadvantaged by who they are, where they live and what their income is, and that they have equal opportunity to access good schooling.
As has been said, the growth of autonomy leads to growth in the number of schools that are their own admissions authorities. I have some sympathy with my noble friend Lady Morris; some co-ordination by local authorities in administering admissions makes it much easier for parents. However, I recall that in my day it was the schools, rather than the local authorities that were admissions authorities, that were most likely to fall foul of the admissions code. I do not think that it was anything to do with the fact that they were largely faith schools or with their faith foundation; it was the fact that they were their own admissions authorities. Some aspects of the code were quite complex and they did not have the expertise in-house or within the school to ensure that they were compliant with the code. We found some gross non-compliance with the code, which is why things were toughened up.
In many ways, I do not have a problem with the Government’s code. What I have a problem with is ensuring that there is proper regulation of the code, with teeth. To remove the admissions adjudicator’s ability to direct schools and the adjudicator’s power to look at the admissions arrangements is to remove teeth. The Government are still unable to answer this through their amendments which we will discuss later. The code has to be independent to protect the Government from charges of political interference, because sometimes these issues become quite political at a local level and Members of Parliament are asked to be involved.
This amendment is the minimum that the Government could get away with. If they are not minded to accept this amendment, we should think again about introducing something tougher at Third Reading and, if we need to, restoring some of the adjudicator’s powers.
Lord Hill of Oareford
My Lords, I agree with the three definitions that the noble Lord, Lord Knight of Weymouth, came up with: fair funding, fair inspection and fair access. These are the three principles that we need to uphold as we develop our academy policy. I will return to that in a moment. In response to the question from the noble Lord, Lord Northbourne, I am told that, perhaps not surprisingly, there is not a statutory definition of fair access. The noble Lord, Lord Knight, came up with a definition, and I suspect that it is like the elephant—we know it when we see it.
I take issue with the suggestion from the noble Baroness, Lady Hughes of Stretford, about the extent to which the Government are seeking to change the admissions arrangements. The changes which we are proposing are relatively modest. I accept entirely the need for strong and effective safeguards and these are in place. As I go on to explain what some of them are, I hope that I will be able to reassure noble Lords that that is the case.
As I said when we discussed similar amendments in Committee, and reiterate now, we see our commitment in favour of fair access, and protecting and promoting the opportunities of the disadvantaged and vulnerable, as part of our broader agenda. We talked earlier about extending early years education to disadvantaged two year-olds, the funding we have put behind the pupil premium and our efforts to tackle underperforming schools. I would also argue that this commitment can be seen in the changes that we are making on admissions. We have revised the statutory admissions code, which we think over the years—in a well-intentioned attempt to cover every eventuality—had become a bit unwieldy. In revising the code, although we have retained the key safeguards for looked-after children and children with statements of special needs, we have also added new measures to improve access to good schools. These will, for example, allow academies to prioritise children receiving the pupil premium. We have expanded infant class size exceptions to include twins, multiple births and children from our Armed Forces families. I should add that much of the feedback that we have had from the consultation is that, in making it simpler, more concise and more focused on the things that admission authorities must do, parents and their associations who have responded feel that it would be easier to hold schools and local authorities to account.
Baroness Morris of Yardley
I see that the Minister is trying to be helpful and I entirely accept what he said about the Secretary of State having powers to take action to ensure that a school’s admission arrangements are fair. I accept that and I think that the Minister has made that point on a number of occasions. However, the problem arises as regards co-ordinating different schools with different oversubscription criteria. In a local authority area each school could be applying the admissions criteria fairly but a child could still be unfairly ignored by the system because of the way in which each of the separate rules apply to him. In that case, who has the power to go in and sort it out?
Lord Hill of Oareford
I understand the point. One way to tackle this might be to ask the chief adjudicator to look at the concern that has been raised about what happens where there is a range of admissions authorities. The chief adjudicator would be the right person to look at that, report on it and comment on it in his annual report so that people can see what is going on. I will follow up that point with my right honourable friend to see whether that might be a way of addressing those concerns.
As I said, local authorities have a duty to refer any arrangements that they suspect may be unfair to the adjudicator. That role gives them oversight of all arrangements, be they at maintained or academy schools. In carrying out all of their functions in the provision of education local authorities have a duty under Section 13A of the Education Act 1996 to ensure fair access to opportunity for education and training. We think that the duty should be at that level.
Ensuring fair access was the reason for the introduction of the admissions code and is central in its current revision. We hope that the new revised code, which was consulted on over the summer and will be laid before Parliament shortly, makes the code easier to understand while protecting and extending safeguards for vulnerable groups. The changes in this Bill extending the adjudicator’s remit to include academies and free schools, and the government amendments which will allow anyone to object to the adjudicator, are aimed at achieving and promoting fair access. We think that sufficient safeguards are in place to make sure that the oversight to which noble Lords have referred is in place. The changes we have made will help the admissions arrangements, not weaken them as the noble Baroness suggests. I ask the noble Baroness to withdraw the amendment.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his detailed response. As my noble friend Lady Morris said, he was trying to be helpful. However, a number of issues are still outstanding. I also thank other noble Baronesses and my noble friends for contributing to the debate as well. It is somewhat disappointing that the noble Baroness, Lady Walmsley, said that she tabled her amendment to enable the Minister to say what he had to say, as she spoke with great conviction in Committee about the necessity for an overarching duty precisely for some of the reasons that my noble friend Lady Morris pointed out; namely, that this issue—
Baroness Walmsley
Perhaps I may clarify the situation for the benefit of the noble Baroness. I have been convinced by my noble friend the Minister and my right honourable friend the Secretary of State that the duty is there and that it is no longer necessary for me to press my amendment. I have been satisfied on the issue.
Baroness Hughes of Stretford
As I hope to point out, I did not hear the Minister say anything which suggested that that duty already exists in statute. He said that it is not strictly necessary. I will try to unpick what I think he said. I am surprised that the noble Baroness is satisfied by that.
Lord Avebury
Perhaps the noble Baroness did not hear the Minister say that he will write to my noble friend giving her the statutory reference. Is not that enough?
Baroness Hughes of Stretford
I do not have a statutory reference. I am just responding to the words that the Minister himself chose to use. If I might get to that point, I will perhaps explain what I mean.
My noble friend Lady Morris rightly said that, even in the context of trying to free head teachers to run schools, it really does not make sense to enable each school to decide which pupils to admit and which to reject. In a local system, this atomisation of admission decisions by individual schools means that some children will be left out and that the interests of children as a whole will not be protected. My noble friend Lord Knight of Weymouth gave some good examples from his experience of how some schools will not abide by the admission codes and will not comply. The examples we have seen of that confirm the need for a duty or power outwith the system. That is the point that we were trying to get across to noble Lords.
My noble friend Lady Morris said it should be a referee; I would say a guardian of the rights of children and parents in this system. The Minister said that the duty on the Secretary of State was not strictly necessary, but when he went on to talk about what powers and duties the Secretary of State has in law, he said that the Secretary of State had full oversight of admissions through the school adjudicator. This gets to the principle of the role of government. We are seeking an active agency within government to make sure that admissions are fair across all children—not to have oversight through the adjudicator only. That is not an active requirement on the Secretary of State, either through the admissions code or directly on the Secretary of State himself. Yes, the Secretary of State has the power to ask the adjudicator to investigate, but that is not the same as the Secretary of State having the duty to satisfy Parliament that he is pursuing by every means possible the principle of fair access.
The Minister also said that he thought that the right level for that duty was the local authority. As I said in my opening remarks, local authorities will have a co-ordinating role on the admissions code, but that is a co-ordination in relation to the administration of the admissions, not to the actual decisions that schools will make. That is not where the qualitative decision lies; the local authorities have no power at all under the proposed arrangements to challenge. They will have a power to refer to the adjudicator if they think a school is not in compliance, but they do not have that overall duty, at least where most schools are academies, to ensure fair access. There is nobody actually holding that ring in the system at the local level or nationally. That is why we feel very strongly, on a point of principle, that it is the responsibility of government to protect the rights of children and parents. That is where democratic accountability lies in this regard, in our view—to protect) the interests of citizens who are, in this case, children and parents. Given the ambition of the Government that every school should be an academy and be its own admissions authority, and given the other changes that the Government are making to the system, we feel that these amendments are necessary. I wish to press the amendment.