Employment Rights Bill (Thirteenth sitting)
(1 day, 11 hours ago)
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The Committee divided: - Ayes: 15 / Noes: 4 - Question accordingly agreed to.
The Chair
Will everyone please ensure that all electronic devices are turned off or switched to silent mode? We will now continue line-by-line consideration of the Bill. The grouping and selection list for today’s sittings is available in the room and on the parliamentary website. I remind Members about the rules on declarations of interests, as set out in the code of conduct.
Clause 25
Public sector outsourcing: protection of workers
Question proposed, That the clause, as amended, stand part of the Bill.
The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)
Good morning, Mr Mundell; it is a pleasure to see you in the Chair. As is customary, I refer to my entry in the Register of Members’ Financial Interests and my membership of the Unite and GMB trade unions.
The clause will empower Ministers to reinstate and strengthen the two-tier code on workforce matters where contracts for public services have been outsourced to the private sector. It will ensure fair and equitable employment conditions for public sector workers who have been transferred into the private sector, and private sector workers who work alongside them on public service contracts, while maintaining a high quality of service for the public. It therefore directly supports the Government’s manifesto commitment to make work pay and will tackle the issue of unfair two-tiered workforces where staff working alongside one another to deliver the same contract do not have comparable terms and conditions of employment.
The powers are constrained so that the provisions of the regulations and the code, when developed, will apply only to new contracts entered into once the Bill comes into force, but can and will apply to re-procurements of services already outsourced where the re-procurement leads to a further transfer of workers. Ministers will have the power to make regulations specifying provisions to be included in relevant outsourcing contracts. The provisions may, for example, set out model contract terms that, where incorporated into contracts, will impose obligations on suppliers. Authorities will be required to take all reasonable steps to include those provisions in all relevant outsourced contracts.
The regulations made under the clause will, first, have the purpose of ensuring that transferring workers are treated no less favourably as workers of the supplier than when they worked for the public sector contracting authority and, secondly, have the objective of ensuring that workers of the supplier who are not transferred from the public sector but recruited by the supplier to work on the contract are treated no less favourably than those transferring workers. Alongside that, Ministers of the UK, Scottish and Welsh Governments will be subject to a duty to publish a code of practice addressing similar matters to which contracting authorities will need to have regard.
To ensure that the code is effectively enforced, there will be several forms of redress. Contracting authorities will be required to take all reasonable steps to ensure that suppliers meet their contractual obligations, as set out in the regulations. In addition, the procurement review unit, which will be established under our new Procurement Act 2023, due to commence in 2025, will be able to investigate whether a contracting authority has had regard to the code and taken appropriate steps in relation to provisions specified in the regulations.
These powers are being extended through amendments to the clause, which we discussed last week, to the devolved Governments of Scotland and Wales so that the benefits of a consistent approach to fair and equitable employment terms and conditions on relevant outsourced contracts can be spread throughout the UK. Fair and equitable working conditions are the right of all employees working alongside one other on the same outsourced contracts, and these measures will help to tackle that issue head on.
Greg Smith (Mid Buckinghamshire) (Con)
It is a pleasure to serve under your chairmanship once more, Mr Mundell.
Clause 25 has got me thinking about many moons ago, in 2006, when I was part of the team that won Hammersmith and Fulham council for the Conservatives for the first time since 1968. One of our first acts was quite literally to take the red flag down from the roof of the town hall. Part of the symbolism of that, which is why I mention it, was that the council, in 2006, was one of the last to outsource anything at all. Competitive tendering simply had not happened in that London borough. Everything was still a direct service run by the local authority, and we set about contracting out waste, grounds maintenance and many other services. Why? Because we wanted to deliver better value for taxpayers—indeed, we cut council tax by 20% over the eight years that we ran the council—and to improve service standards.
One of the things I learned in that process, and the reason my point is relevant to the clause, is that the first iteration of any contracting out—that first contract, be it for refuse collection, street cleansing, grounds maintenance or whatever—does not tend to result in economies and improvements. It is often in the second or third contract iteration where the cost savings and improvements in service standards start to be seen. That is partly because of the TUPE provisions that rightly exist to ensure that those staff who are being transferred from whatever part of the public sector we might be talking about—in this case, local government—transfer with the same rights, terms and conditions, and pay that they had at the point that they ceased to be direct employees of the council, or whatever other public service, and became employees of whoever won the contract.
The rub comes in the real-world application. In such cases, the staff members who transferred are on favourable terms and conditions, and probably better pay, than some of the staff that the contractor brings into the team. If it is immediately locked in that everybody new has to be on the same terms and conditions and pay scales, we will never achieve value for money for taxpayers, and we will never enable the contractor, be that a refuse collection company or whatever, to find efficiencies and savings at the same time as increasing service standards in the way that we all want to see. It might as well never be done in the first place. That makes me question whether that is in fact the ideological position that the Government want to take. I can see the Minister grinning; perhaps I have hit upon something.
I gently remind the Committee of the time when every refuse service and local government service was provided directly, in house, before competitive tendering and the revolution of the 1980s and the Thatcher Government. We can all remember what delivery of those services looked like in the 1970s: the rubbish piled up on the streets with no one collecting it.
Steve Darling (Torbay) (LD)
It is a pleasure to serve under your chairmanship, Mr Mundell. I just reflect that when I was a unitary authority leader, we were effectively a hostage client of the private sector, since the previous Conservative authority had set up a joint venture with it. That was far from the land of milk and honey. Well, it was the land of milk and honey for the private sector, whereas local taxpayers had to suffer under a system that was set up to benefit the private sector. The reality is that often it is more appropriate for local authorities to run these services so that they are run in the interests of local communities rather than the profits of the private sector.
Greg Smith
The hon. Gentleman is clearly not of the orange book wing of the Liberal Democrats.
Greg Smith
My hon. Friend indicates that perhaps there are not any left. I fundamentally disagree with the point made by the hon. Member for Torbay. It is not about profits for the private sector, although the profit motive is an important element in driving up service standards and ensuring that if a company wants to keep a contract, it has to deliver on it.
Some councils have failed on this front by failing to set the specification of a contract correctly and failing, as the client, to enforce against the contract. That is where we see failure on so many fronts; it has little to do with terms and conditions or the points covered by the clause. Often, an ill-equipped council, be it the members or the officers—I have seen this from both sides—fails to properly specify in the first place, when it goes to market, and then fails to deliver proper contract management. That is where we see gremlins creep into the system and unintended consequences come about.
I gently point out to the hon. Member for Torbay that when I was in local government, we saw many benefits from competitive tendering over multiple iterations of the contract. I can ensure him that in the cabinet portfolios that I held in that local authority, where I was directly overseeing the waste, street cleansing and grounds maintenance contracts, I was pretty tough on those contractors in ensuring that they did drive up standards. But sometimes it is not the right step. The Labour council we took over from had outsourced housing, which we as a Conservative council brought back in house. We ended the arm’s length management organisation to bring it back within direct council control to deliver a better service for the tenants of those properties. So if it is not done properly in the first place, that model does not always work.
The measures in clause 25 are once more a sledgehammer to crack a nut. They do not recognise the practical realities of how competitive tendering has worked, excepting the flaws that I raised about how well contracts are specified and enforced against. If we want to ensure that we are delivering the best possible value for money for taxpayers—the people who pay for public services—at the same time as increasing the standard of services delivered, which I expect is a universal aim that all of us hold, there have to be flexibilities to ensure that efficiencies can be found, and that the fat is taken out of all systems, processes and ways of doing business. If we lock contractors into absolutely having to match every term and condition, with every pay scale being exactly the same, we are never going to deliver that.
Sarah Gibson (Chippenham) (LD)
It is a pleasure to serve under your chairmanship, Mr Mundell. I really welcome the clause. Despite the fact that their uniforms, pensions and contracts said “NHS”, staff at a community hospital in my constituency only realised that they had been effectively TUPE-ed over to a private business when they failed to receive the £1,000 bonus that all their colleagues in the main hospitals got. One may say, “How naive of them; they should have read their contracts better,” but most of them had been NHS workers for 25 years, so they were completely unaware that this had happened to them and that they were no longer entitled. I must thank the then contractor, a charity, for lobbying hard to make sure that eventually they got some kind of bonus, but to be suddenly without those conditions was quite frightening for them. So I welcome these measures.
I take some issue with what the hon. Member for Mid Buckinghamshire said. For many years, I served as part of Wiltshire council, which is a Conservative-led council. It was locked into a service contract for maintenance that was poor and used to lower wages, producing a system where we had very little maintenance. Our town councils are now having to pick up the bill for repairing grounds and play areas because the company, although it had the contract and was paid by the local authority, was not carrying out the works. Therefore, I welcome this measure and I am pleased to support it.
Laurence Turner (Birmingham Northfield) (Lab)
It is a pleasure to serve under your chairmanship, Mr Mundell. Merry Christmas, everyone. In that spirit of glad tidings, I draw the Committee’s attention to my declarations in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions.
Clause 25 enables the reinstatement of one of two bodies that are to be reinstated by the Bill—the other is the school support staff negotiating body, which I hope we will come to today. The clause stands in a long and proud tradition in this Parliament, and at its heart is a simple question: what duty does the state owe to people who perform services on its behalf? The phrase “two tier” has become highly charged in recent years, but I hope that we can channel some of that spirit of protest towards the iniquity of two-tier workforces.
The injustice is easy to describe—in fact, the shadow Minister, the hon. Member for Mid Buckinghamshire, described it. When a public service is outsourced, the original workers’ pay and terms and conditions are protected to a certain extent by TUPE, but those of the workers who are subsequently employed on that contract are not. Even when they carry out exactly the same duties, they will normally be paid inferior rates.
That is understandably a cause of tension and resentment at many sites where services continue to be performed on behalf of the public sector. The original workers who are TUPE-ed over can be singled out for victimisation and adverse treatment on the part of their new employer. We know from the labour force survey, in the days when that instrument was in better health, that many such workers continue to regard themselves as part of the public sector and are motivated by public service. The workers who tend to find themselves in this position are more likely to be women, on lower earnings and from non-white backgrounds.
The case for parity of treatment was made powerfully in the last Parliament by the Defence Committee, which at the time had a Conservative Chair. The Committee’s report on the treatment of contracted staff for ancillary services states:
“In general, the terms and conditions of outsourced employees are worse than those of their directly employed counterparts, with reduced wages and benefits…The Ministry of Defence should do more to ensure that contracted staff receive comparable employment contracts to staff directly employed by the MoD.”
That is precisely what the reinstated and strengthened two-tier code, enabled by this clause, will accomplish.
Two-tier workforces are not just unfair on workers; they represent a failure of public policy. When margins are tight, bidders can end up competing not on efficiency or innovation, but on a squeezing of wages. We need only look at Carillion for a prominent example of what can go wrong, and of the wider liability for taxpayers when a contractor loses sight of its wider operations. The direct cost to the public sector has been estimated at some £150 million, the wider debts to the private sector were in the region of £2 billion, and the National Audit Office has warned that we will not know the true cost for many years to come.
The shadow Minister referred to the sepia-tinted days—perhaps we should say the blue-rinse days— of 2006, but I was grateful for the contributions from the hon. Members for Chippenham and for Torbay, because there is a long-standing and cross-party record on this matter. We can go back to 1891, when the radical Liberal politician Sydney Buxton moved the fair wages resolution, a resolution of this House, which was carried unanimously—at that time, Parliament had a Conservative majority. He said:
“The Government is far the greatest letter-out of contracts in the country, and Government contracts are the most popular for three reasons. In the first place, the contractor makes no bad debts; secondly, he has quick returns; and, thirdly, a Government contract forms a good advertisement. The consequence is, that there is great competition, and tenders are cut down very much at the expense of the labour market. Such a state of things is unfair to the good employer…and injurious to the community. The fair employer is placed at a very great disadvantage as compared with the unfair.”—[Official Report, 13 February 1891; Vol. 350, c. 618.]
Those arguments hold true today. That fair wages resolution was adapted and improved down the years, and took its final form under the Attlee Government in 1946. It has subsequently been exported around the world, in the form of International Labour Organisation convention No. 94. Indeed, those great British protections, developed in this Parliament, apply now in Italy, Spain and such far-flung places as Brazil, but because of decisions taken in the 1980s, they do not apply to contracted-out workers in this country. I very much welcome the opportunity to put that right.
The two-tier code existed previously, between 2005 and 2006. It grew out of an earlier iteration in local government, and it has been in force subsequently in Wales, where the sky has not fallen in in terms of service provision. [Interruption.] If the shadow Minister wants to intervene, he is welcome to.
Greg Smith
How does the hon. Gentleman feel that the NHS in Wales is doing—better or worse than in England?
Laurence Turner
I would say better, having had some experience. The hon. Gentleman might want to return to that point.
On the substance of the clause, there were some concerns about the original incarnation of the two-tier code. It was purely voluntary and did not contain meaningful provisions for redress where an employer who had signed up to uphold the standards of the code did not follow through. I hope that that deficiency will be remedied when the associated regulations appear.
It is legitimate to have differences on points of principle. After the current Lord Maude abolished the two-tier code, the Secretary of State—now Baron Pickles—said that the Government of the time had
“Abolished the…two-tier code that…hindered the voluntary and independent sector from delivering better value for money.”—[Official Report, 26 March 2015; Vol. 594, c. 166WS.]
The shadow Minister has made much the same point. This was explicitly about driving down wages for the large number of people who are contracted out to deliver public services. I very much welcome the fact that this Government have a policy objective of making work pay. For a large number of people in the labour market who have been overlooked by politicians for too long, the clause represents an important step forward for remedying that deficiency.
Justin Madders
We have had a broad debate—very broad from my hon. Friend the Member for Birmingham Northfield, who took us on a canter through the history. He was right that it was the coalition Government who abolished the two-tier code, which is why it is welcome that the Liberal Democrats have realised the error of their ways; I welcome their support on this. Their spokesperson, the hon. Member for Chippenham, made the important point that the inherent unfairness of people doing exactly the same job for the same employer finding out that they are on different terms and conditions and are earning less is a big morale sapper. It is also a big issue in terms of workforce retention—one problem that we often see with outsourced contracts.
I will turn to the shadow Minister’s misty-eyed days at Hammersmith and Fulham, and I will raise him Ellesmere Port and Neston borough council, which was a great believer in direct provision of services; we certainly felt that was the best way to deliver value for the taxpayer and good-quality services. In his contribution, the shadow Minister alighted on the illusion of outsourcing—the fact that consultants can demonstrate that savings can be made, but when you drill into the detail, those savings are always off the back of the workforce. They are not some magical way of doing things differently. It is about cutting terms and conditions and it is about a race to the bottom, which we are determined to end.
Greg Smith
I do understand the ideological difference between the two sides on this point, but I take issue with the Minister that this is about a race to the bottom and cutting terms and conditions; it really is not. From my experience, it was not a matter of consultants, but of properly probing contracts, setting the right specification to deliver for the residents in the place that the council served, and requiring the flexibility to ensure that some people would be doing very different jobs in a different way from before in order to deliver that. It was not about wanting to cut anyone’s pay or terms and conditions; it was about service delivery and value.
Justin Madders
I take the shadow Minister’s point. I am not familiar with the machinations of Hammersmith and Fulham council in the 2010s, and it may well be that savings were made by doing things differently. But there is absolutely no reason why that cannot be done directly from a public body: if it is well led, if it is able to have constructive dialogue with its work force, savings can be made.
The difficulty with the shadow Minister’s analysis is that, while he may have been able to find savings for the taxpayer through those kinds of measures, too often the savings are made by cutting terms and conditions for new workers. That is why, as he said in his original contribution, the second or third outsourcing is usually where the savings happen, because it is when those new workers come in on lower terms and conditions that the savings begin to emerge. That is why the whole outsourcing trick is a con, because it is how those savings tend to be made.
When we add in the contract monitoring costs and the profit motivations for the outsourced company to make a living from these things, we can quickly see why it becomes a bad deal for the taxpayer. I certainly make no apologies for putting forward this proposal, because we think it is the right thing to do, to respect and value those who work in public service and ensure that they are paid the same as their colleagues for doing the same work. I therefore commend—
Laurence Turner
I thank the Minister for giving way at the death. Does he also recognise that one example of a council that tried to go down the wholesale outsourcing route was Northamptonshire? We all know how that story ended, and Eddie Martin, the Conservative former leader of Cumbria county council, stated that the then Government
“says that outsourcing is everything, but while it might get you an initial cheaper price, that price simply doesn’t last, you lose flexibility, and it causes a great deal of unrest.”
Justin Madders
I think that is the kindest thing that has been said about me this year, Mr Mundell. I thank my hon. Friend for his intervention; I think we can all see the difficulties. I know, from dealing with public bodies in my area, that sometimes when there is more than one person responsible for a service—the public body and then the contracting body—we find duplication, differing priorities and often a poorer service as a result, because there are competing ambitions in those bodies. That is one of the main reasons why we want to see a much more holistic approach to our public services. I commend clause 25 to the Committee.
Question put and agreed to.
Clause 25, as amended, accordingly ordered to stand part of the Bill.
Clause 26
Equality action plans
Sarah Gibson
I beg to move amendment 112, in clause 26, page 38, line 35, at end insert―
“(c) supporting employees with menstrual problems and menstrual disorders.”
This amendment would add menstrual problems and menstrual disorders to “matters related to gender equality”, in relation to any regulations made under the Bill to require employers to produce equality action plans.
I am very pleased to move this amendment. First, as the Bill stands, there are provisions for businesses to report on the impact of menopause on women in the workplace as part of the equalities impact assessments. I think the hon. Member for Sheffield Brightside and Hillsborough (Gill Furniss) is right to table this amendment and to remind us all that menstrual problems can hinder women at any point in their working life, not just as they enter menopause. She is the chair of the all-party parliamentary group on women’s health and an officer on the APPG on endometriosis; I feel confident that she has tabled this amendment with the best intentions. It seems an omission that this issue was not included in the original Bill.
Several constituents have contacted me about endometriosis, and specifically its impact on them at work. Endometriosis costs the UK economy £8 billion a year in treatment, loss of work and healthcare costs, and it takes an average of eight years to get a diagnosis. One in six workers with endometriosis leaves the workforce due to their condition—an issue that the Government and employers cannot afford to ignore. Those people could go back to work and stay in work if there was additional flexibility for them.
As one of my constituents told me—she does not wish to be named for these reasons—many employees with endometriosis find that their employers do not believe them about their symptoms, that their flexible working requests are refused and that they are subject to discriminatory automated absence procedures that penalise short but intermittent time off work. The amendment seeks to address that injustice. I want to be very clear that I support it, and I hope that the rest of the Committee will see its importance.
Greg Smith
I hear very clearly what the hon. Lady and the hon. Member for Sheffield Brightside and Hillsborough have said. I do not take issue with anything that has just been said. The endometriosis point is a clear one, and well made. Where I challenge the hon. Member for Chippenham, and indeed the Minister, is that that women’s health issue is not exclusive; there are many health concerns that only women face, and indeed some that only men face. Given that the clause explicitly refers to gender equality, would it not be better, from a pure legislative drafting perspective, to say that gender equality will be the catch-all that encompasses all that?
Is there not a danger that by listing one or two medical concerns, we will lock out other health problems faced exclusively by women, or exclusively by men? Naming one or two things in legislation often creates a problem in the interpretation of the rule. Courts may look back at this debate, or at any other debate on the Bill, and understand that this gender equality provision is intended to be a general catch-all for anything that any man or woman may face. If we name one or two things in legislation, however, it could become dangerous for when a man or a woman presents with something that is not named.
Sarah Gibson
I cannot help agreeing that naming a few conditions in the Bill might well be a concern, and when I first looked at the amendment on its own without looking at where it would fit into the Bill, it did seem slightly incongruous to suddenly mention one aspect. But if we look at where it would be inserted into the Bill, following a direct reference to menopause, it seems far more appropriate to make the point that menopause is not the only ongoing issue that women face. Many women are quite relieved to go into menopause, because it has been so onerous for them to have periods that keep them off work or in bed for several days a month. If we are going to mention menopause, mentioning menstruation makes perfect sense. The amendment makes sense only in the context of the Bill.
Greg Smith
I am grateful to the hon. Lady for that clarification. There is a danger that we will end up dancing on the head of a pin, but I am always concerned about naming individual things in a catch-all provision. If amendment 112 were to be accepted, it might create an interpretive problem for the courts at a later date. Indeed, it might create a problem for employers in navigating whether they have to abide by legislation that mentions one condition but not another.
I would be grateful if the Minister, in his response to the amendment, gave the Government’s interpretation—[Interruption.] With two Ministers on this Bill, it is confusing to work out which one will be responding. I would be grateful if, in her response, the Minister gave clarity on the Government’s interpretation and the legal advice that they have received.
Steve Darling
I echo the comments from my hon. Friend the Member for Chippenham about the impact of endometriosis on younger women’s lives. It can be extremely incapacitating. A constituent of mine in Torbay shared how her daughter had to give up work because of the impact and the length of time that it was taking her to go through the NHS system to get the treatment that she deserved. Action to resolve that and get her in the right place was months and months away.
To me, the Bill needs a couple of touch points that test the employer and challenge them to reflect on certain areas of their workforce. That will result in a culture change among employers, so that they reflect on these matters and see the broader picture. It is extremely important to drive that culture change by adding this amendment, because throughout the United Kingdom, including in my Torbay constituency, there are significant issues related to finding enough people to fill workplaces. If we have the appropriate culture through this proposal and other changes in the Bill, we can make sure that the pool of people who can step up and work and contribute to our economy is enhanced.
The Minister for Equalities (Dame Nia Griffith)
Amendment 112 would add menstrual problems and menstrual disorders to matters related to gender equality in clause 26. Prioritising women’s health is a positive step that the Government are taking, and the hon. Member for Chippenham is absolutely right to highlight the terrible impact that many different conditions related to menstruation can have on whether a women can perform to the best of her ability. Physical symptoms can be further compounded by the taboo that often surrounds conversations about women’s reproductive health, and I thank her for bringing that to the Committee’s attention.
Clause 26 does not provide an exhaustive list of matters related to gender equality, as the hon. Member for Mid Buckinghamshire referenced. As the hon. Member for Torbay said, this is about culture change in a place of employment. In creating equality action plans, we are reflecting the fact that many actions will be beneficial for people in lots of different circumstances. For example, the improved provision of flexible working can be valuable for an employee balancing childcare, as well as someone managing a health condition.
In the same way, ensuring that employers support staff going through the menopause will necessitate them taking steps that are positive for supporting women’s health in the workplace more broadly. For example, menopause best practice includes greater discussion around women’s health and awareness of potential workplace adjustments—things that have a much wider potential benefit. I therefore ask the hon. Member for Chippenham to withdraw the amendment.
Sarah Gibson
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Steve Darling
I beg to move amendment 162, in clause 26, page 38, line 35, at end insert—
“(c) supporting employees who provide or arrange care for a dependant with a long-term care need, as defined by the Carer’s Leave Act 2023.”
This amendment adds caring to the list of “matters related to gender equality”, on which regulations will require employers to produce an equality action plan.
This amendment relates to research showing that by the age of 46, 50% of women have taken on caring responsibilities, whereas the equivalent age for men is 57. Clearly, the impact of caring happens much sooner for women, and that is why it is appropriate to take carers into account under the equality action plan.
There are approximately 10.5 million carers in the United Kingdom, 2.6 million of whom work. That shows that a significant number of carers do not work. In an earlier debate I made the point about the pool of workers for whom there are opportunities in our workforce yet who are not able to access longer-term employment. I strongly contend that the amendment is a way to enhance the pool of opportunity by driving the culture change that I was delighted to hear the Minister say a lot of the Bill is all about.
Carers will often stay in lower-paid jobs or refuse promotion because of caring commitments. It is extremely important to include caring as part of the consideration and clearly flag that to people who consider the action plans, because it is not an obvious matter for an employer to take into consideration, but it affects such a large number of people in the United Kingdom that it would be an error in judgment not to include it in the Bill.
Greg Smith
I rise to address the technicalities of how the amendment would work in legislation and with the Bill’s gender equality provisions. I entirely accept the hon. Gentleman’s point about the disparity between the average age by which a woman might take on caring responsibilities compared with the average for a man, but those are averages and there will be outliers and exceptions across all age ranges and all genders.
I say clearly that the Opposition welcome the contribution of all carers and salute them as the heroes they are, but I am concerned that the amendment would shoehorn a very worthy and important matter into a provision on gender equality. I do not see how it fully fits; it would have been more sensible to have created provisions for the support and recognition of those with caring responsibilities in a new clause or in another part of the Bill. I worry that, like amendment 112, amendment 162 could confuse the Bill’s interpretation as it goes down the line and, potentially, is challenged in court at some point.
I accept the core argument about support for those with caring responsibilities, but it is dangerous to shoehorn provisions into clauses where that is not the primary intent. It is important that the gender equality points remain focused on gender equality issues, on which I think the Government have good intent. If the Bill gets changed too much by us bringing in things that—although clearly in scope, given that they have been selected—are on the edge of scope, that could cause an interpretative challenge later. Provisions on support for those with caring responsibilities would be far better in a new clause or a different part of the Bill, where they might fit more neatly and enable us to avoid judicial challenge.
Dame Nia Griffith
If I may, Mr Mundell, I will draw attention to my registered interests, including my membership of the Union of Shop, Distributive and Allied Workers and the National Education Union.
Amendment 162 would add caring to the matters related to gender equality listed in clause 26. The hon. Member for Torbay is absolutely right to highlight the impact of caring responsibilities on women in the workplace, and we recognise that carers might need extra protection and support. I reassure him that many people with caring responsibilities are likely already to be afforded protections under the Equality Act 2010, through the provisions relating to age and disability discrimination.
The Equality Act protects people from direct discrimination by association. That means that individuals with caring responsibilities for someone who is, for example, elderly or disabled are likely to have protection from unlawful discrimination because of their association with someone with a protected characteristic. The Government frequently receive requests for the creation of new protected characteristics. Unfortunately, merely creating new characteristics within the Act will not necessarily lead to a change in the behaviour of service providers and employers. We can see that from the number of court cases that continue to be brought under the existing characteristics.
Clause 26 does not provide an exhaustive list of matters related to gender equality. Instead, we are reflecting the fact that many actions will be beneficial for people in lots of different circumstances. For example, improved provision of flexible working can be valuable to someone who is managing a health condition as well as to an employee who is balancing care. Equality action plans will increase awareness of the need for a wide range of potential workplace adjustments for all who would benefit from them, delivering a much wider potential impact. I therefore ask the hon. Member to withdraw the amendment.
Steve Darling
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Dame Nia Griffith
The clause is the first step towards introducing equality action plans, and it provides the power to do so in subsequent regulations. Women are a crucial part of securing economic growth and improving productivity, but the national gender pay gap remains at 13.1% and eight in 10 menopausal women say that their workplace has no basic support in place. This lack of support adds up to a significant loss of talent and skills. Menopause affects 51% of the population, with one external estimate showing that the UK is losing about 14 million work days every year because of menopause symptoms.
Large employers have been obliged to publish gender pay gap data since 2017, with action plans being encouraged, but voluntary. Analysis in 2019 found that only around half of employers that reported data went on to voluntarily produce a plan saying how they would act to improve the figures. That demonstrates that only making it mandatory will push employers to act. The best employers already recognise that providing women with the conditions to thrive is good for their employees and good for business. In taking this step towards introducing mandatory action plans, we are making sure that all large employers in scope of this clause follow their lead.
We are using a delegated power, mirroring the approach taken for gender pay gap reporting. Just as with that requirement, we want to give employers as much detail as possible in legislation—more than would commonly be in a Bill. The use of regulations allows us to do that while maintaining flexibility. When drafting this power, we reflected on what we have learned from gender pay gap reporting and from the hundreds of employers we have engaged with as a result. Most organisations think about equality in the round. They have one diversity and inclusion strategy, recognising what is borne out by the evidence: the most effective employer actions have benefits for more than one group or identity. That is why this clause proposes that employers produce one plan that covers both the gender pay gap and the menopause, reflecting the way they already work, reducing the burden of duplication and ensuring that they can get on with putting the plan into action. I commend clause 26 to the Committee.
Greg Smith
We covered many of the issues relating to this clause when we discussed amendments 112 and 162. I am grateful to the Minister for citing the 2017 changes, which were brought about by the previous Conservative Government. It is morally right to completely close the gender pay gap. That will undoubtedly take some time, but every step taken to close it completely is a welcome one. It is important to make sure that employers are taking proper and serious account of the issue and action on ensuring gender equality in the workplace.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
It is a pleasure to serve under you, Mr Mundell. I have fought to break down barriers to equal justice, opportunity and dignity without discrimination for women and disabled people at every stage of my personal, professional and political life. I know that our Labour Government’s work on our missions for 10 years of national renewal has the purpose of changing lives across our country. This clause will be an important part of achieving that change for women in the workplace, ensuring that no matter what their background or where they live, women can thrive in the workplace. I am standing here because of the difference that world-class public services made to my life chances. This Bill creates a culture for world-class employers to break down barriers for women employees. The requirement to develop and publish equality action plans showing the steps that employers will need to take in relation to gender equality will be a significant move forward to improve equality, alongside collecting and publishing figures on the gender pay gap.
In an evidence session for the Bill Committee, Jemima Olchawski from the Fawcett Society said:
“We have a gender pay gap of just under 14%. On average, women take home just over £630 a month less than men. It also has a detrimental impact on our economy, because it is a marker of the ways in which women are not fully participating or contributing to the economy at their full potential. Estimates indicate that that means we are missing out on tens of billions of pounds of GDP.
We strongly support the measures as an important step towards redressing that balance. In particular, we are pleased to see the inclusion of equalities action plans as an important way to get employers to drive forward progress on the gender pay gap.”––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 81, Q76.]
This is helpful. The clause makes an important contribution to advancing gender equality by including the requirement to develop and publish equality action plans, which address the gender pay gap and support employees going through the menopause. I am pleased to be a member of the Committee seeing this go through today.
Alison Hume (Scarborough and Whitby) (Lab)
It is a pleasure to serve under your chairmanship once again, Mr Mundell. I draw the Committee’s attention to my declaration of interests and my membership of Unison and the Writers’ Guild of Great Britain.
I associate myself with the contribution made by my hon. Friend the Member for Penistone and Stocksbridge on the gender pay gap. I particularly welcome the focus on menopause support, which will be provided by the equality action plans proposed in clause 26. The TUC has reported that research from Bupa estimated that 1 million women have been forced out of their jobs because of discrimination and a lack of support for them while experiencing the perimenopause or menopause. I have lost count of the many talented women whom I count as friends and who have left jobs and careers that they loved, simply because they were not given support by their employers to manage their symptoms while at work. I am pleased that we have moved on from an era in which women going through the menopause had to suffer in silence, but we have a long way to go. That is why the mandatory equality plans are so necessary. They will help employers to provide the best workplace experiences.
USDAW research involving women members who are going through the menopause has found that one in five women take time off because of menopause-related symptoms. Given that women between the ages of 45 and 54 make up 11% of all women in employment— 3.5 million women—it is vital that employers consider the needs and experiences of women during this period and ensure that support is in place, that women can keep working and earning, and that their talents are not lost to the workforce.
Dame Nia Griffith
I thank my hon. Friends the Members for Penistone and Stocksbridge and for Scarborough and Whitby for their powerful contributions.
I cannot stress enough to the hon. Member for Mid Buckinghamshire how important our continuing consultation will be. We are keen to engage with stakeholders to ensure that we get this right and lay the appropriate regulations before the House in the appropriate way. On that note, I commend the clause to the Committee.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27
Provision of information relating to outsourced workers
Question proposed, That the clause stand part of the Bill.
Dame Nia Griffith
This clause is the first step towards requiring employers that already report gender pay gap data also to provide information about where they receive outsourced support from.
A 2019 YouGov survey found that seven out of 10 employer respondents had used third parties to provide key services. We know that the success of a business is down to everyone who contributes, including those who do some of the most demanding jobs but whose pay may be overlooked because they are employed by outsourced service organisations.
By getting large employers to disclose who they have outsourcing relationships with, we are building on what we have learned from gender pay gap reporting. Public accountability is an effective motivator for organisations. Instead of trying to get organisations to share employee data, which risks data relating to outsourced workers getting lost in the wider data, our approach will put those outsourcing relationships front and centre. That will act as a prompt for employers, and so achieve our original aim: getting employers to work throughout their networks and be invested in the pay decisions of those from whom they receive outsourced services.
We are taking a delegated power, mirroring the approach taken for gender pay gap reporting. That will enable us to provide as much detail as possible to employers in legislation, including the definitions and parameters of what will need to be reported. We recognise that outsourcing is not clearly defined and that we will need to work with employers to ensure that the measure works. The use of regulations will allow us to engage on an ongoing basis with experts in the area, provide as much clarity as possible in legislation and still maintain flexibility.
This measure is a step towards valuing and supporting some of the lowest-paid workers; it is a step towards businesses working together, rather than engaging in a race to the bottom; and it is a step in the right direction. I therefore commend the clause to the Committee.
Greg Smith
The clause builds on the gender pay gap reporting introduced by the last Government. Of course, in 2017 we were on the second of four female Conservative leaders, while the Labour party is still yet to show its commitment to gender equality in its leadership. Perhaps the Minister might be the first female leader of the Labour party—who knows? I gently and slightly naughtily make that point; it is the Conservative party that has shown a clear commitment to gender equality, particularly with the changes to gender pay gap reporting.
Expanding reporting to outsourced service providers does not seem a controversial move, but I urge the Minister to ensure that the provisions that the Government introduce do not create loopholes or miss anyone out; I can imagine various scenarios in which someone might argue that something is not outsourced, even though it is contracted. I urge her to double check that the specific language used does not create something that anyone can exploit or legally challenge. That is to ensure that the provisions build in spirit on the previous Government’s 2017 changes and do not create loopholes.
Laurence Turner
I will pick up the point just made about the changes made in 2017. Some of the opposition at that time came from the august institution of the Institute of Economic Affairs, which said that, if the regulations were introduced,
“they may encourage outsourcing of lower-paid jobs which happen to be taken by women (to avoid inclusion in a firm’s own return).”
That point has also been made by other organisations. King’s College London published a study on this matter three years ago, which said that
“focusing on the pay gap headline number can risk organisations seeking to window-dress their figures by outsourcing lower-paid jobs, which in turn worsens overall gender segregation within the labour market.”
Therefore, this extension of gender pay gap reporting to outsourced workers really does close that loophole and remove that perverse incentive—one example of many that we have heard about in this Committee.
We also heard from the Women’s Budget Group; Dr Mary-Ann Stephenson, giving evidence, said:
“We welcome the move to include outsourced workers in gender pay gap reporting…We are very conscious that you will quite often see that the lowest paid workers, particularly in the public sector, are now outsourced.”––[Official Report, Employment Rights Public Bill Committee, 28 November 2024; c. 163, Q176.]
The measures as proposed would effectively link the outsourced employer’s reporting to the reporting of the primary contracting authority. I hope that, when the regulations are drafted, they will shed some light on the extent of outsourcing across the economy; these workers are often invisible in official statistics, which is a wider problem for our understanding of the labour market. However, this move within the Bill is welcome.
I will just come back on one point; the shadow Minister referred to elected leaders of the Labour party. He is quite right to point out that the Labour party has not elected a woman leader—I very much hope that that will happen—but, for completeness, under the Labour party rulebook there is no role of “acting” or “interim” leader. It is therefore important to say, for the record, that in the eyes of the rulebook the noble Baronesses Beckett and Harman were as much leaders of the Labour party as any men who have fulfilled that role, and they served with distinction.
Sarah Gibson
I am not sure that highlighting quite how quickly the Conservatives go through leaders is helpful, but we do have to recognise that they have had the highest number of female leaders of any of our parties here, which is to be commended.
On a serious note, I welcome the intentions of clause 27. It is incredibly important that we start to shine a light on outsourcing, especially in the public sector, which I have seen myself, as I highlighted earlier, regarding the Chippenham hospital. To a certain extent, it seems to be a way of hiding some of the less clear and sensible ways we employ people, especially when it comes to low-paid, often female workers. I will therefore be supporting this clause and I am very pleased to do so.
Dame Nia Griffith
I think I had better start by putting on the record that I am not intending to stage some sort of leadership coup—[Hon. Members: “Shame!”]
Dame Nia Griffith
Well, I shall leave Members to interpret my words in Hansard as they choose. On that note, may I just make sure that I have not inadvertently made a mistake? I was referring to the 2019 YouGov survey, and I may have inadvertently said 2020, so I would like to just correct that on the record.
Turning now to the clause itself, I thank my hon. Friend the Member for Birmingham Northfield for making some powerful points, as did the hon. Member for Chippenham. On the burden and the detail required, I say to the hon. Member for Mid Buckinghamshire that we are absolutely committed to ongoing stakeholder engagement in this matter.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
Pay and conditions of school support staff in England
Question proposed, That the clause stand part of the Bill.
Justin Madders
Clause 28 introduces schedule 3, which inserts proposed new part 8A into the Education Act 2002. Paragraph 1 of schedule 3 contains proposed new sections 148A to 148R of the 2002 Act and will be discussed separately.
The reinstatement of the school support staff negotiating body will give school support staff the recognition they deserve for the crucial role they play in children’s education and development. Establishing the SSSNB through the Bill will help ensure that schools can recruit and retain the staff needed to deliver high-quality, inclusive education and support the Government’s work to drive high and rising standards in schools, so every child has the best life chances.
The body will bring together representatives of school support staff employers, representatives of support staff, an independent chairperson and a representative of the Secretary of State. The SSSNB will consider the remuneration, terms and conditions of employment, training and career progression opportunities for school support staff. Its remit will lead to the creation of a national terms and conditions handbook, fair pay rates and clearer training and career progression routes for school support staff in England.
Most school support staff are currently employed on National Joint Council for local government services pay and conditions. The NJC is a negotiating body made up of representatives from trade unions and local government employers. Existing NJC arrangements are not statutory or school specific. Moving to a school-specific body where pay rates and pay awards for support staff are negotiated by school support staff employer and employee representatives and ratified by the Secretary of State will both help to ensure fair pay rates for school support staff and allow central Government to have a strategic view of pay across the school workforce.
It is essential for the SSSNB to have a statutory remit so that all prospective and current support staff in state schools nationally benefit from a transparent, guaranteed core pay and conditions offer. The Bill re-establishes the SSSNB as an unincorporated body on a similar footing to the previous body from 2009 that was abolished by the coalition Government in 2010.
As education is a devolved matter, the extent of these measures is therefore England and Wales and the measures will apply to England only. This is consistent and in line with the remit of the School Teachers Review Body being England only.
The 2009 SSSNB included only those support staff employed by local authorities and governing bodies to work in maintained schools within its scope. Roughly half of schools are now academies, compared with around 200 in 2009 when the body was previously established. Support staff employed by academy trusts are now included within the SSSNB’s remit. It is crucial that the body has a remit for all state-funded schools in England in order to achieve greater national consistency, irrespective of which type of school support staff work in. That is a point that we may come on to debate in due course.
Greg Smith
The Opposition have tabled a number of amendments that probe what is introduced by clause 28 and schedule 3, which we will come on to in subsequent debates today. I will reserve the bulk of my remarks for those debates, although, as clause 28 introduces schedule 3, I will preview those debates now by noting our strong opposition to these provisions. There was a very good, solid and rational reason that the former Secretary of State for Education during the coalition years—now editor of His Majesty’s Spectator magazine—abolished SSSNBs, which was to give that flexibility and freedom to the quite right and good, educational standards-raising revolution in education that came through the creation of the academies by the last Labour Government and in particular the creation of free schools by the last Conservative Government, including in the coalition years. Clause 28 and schedule 3, which we will come on to shortly, seek to undo a lot of that. For the reasons I will outline when speaking on those amendments, I think this part of the Bill requires a rethink.
Dr Tidball
I draw your attention to my declaration of interests, Mr Mundell. I am a member of the Community union, Unison and GMB.
I found it difficult to hear, in anything the shadow Minister just said, any rationale for getting rid of this body all those years ago. I missed three years of school as a child because of the surgeries I needed. Incredible classroom teaching assistants helped me to build my confidence and learn to mix with other children again when I returned—making education and learning an escape, a way to express myself, to overcome people’s assumptions about my disability and to feel free.
I stood in my constituency because I wanted to use my skills and experiences to give back to the communities that gave me so much. To know that, because of this Bill and the clause before us now, teaching assistants and other school support staff like the ones who made school a less daunting place for me will once again have a collective bargaining system for pay and conditions—which will ensure that those staff are finally valued and recognised for their vital work—is a very great privilege indeed.
The reinstatement of the school support staff negotiating body in England, previously scrapped by the coalition Government for reasons that still remain unclear, will be key to providing professional recognition for a group of staff who have been overlooked for far too long. As Unison, of which I am proudly a member, has highlighted, the proposals in this clause
“demonstrate that the Employment Rights Bill isn’t just tackling worker’s rights—it holds the key to tackling long standing public policy failures that have been ignored because they affect workers and service users whose voices are too often neglected by decision makers. Tackling this neglect and allowing trade unions to engage in constructive social partnership and better represent their members is long overdue”.
This clause therefore empowers that group of working people, who have been so long overlooked by the Government, to have a better life at work. It will help trade unions to raise standards and pay across the labour market.
Laurence Turner
In addition to the interest to which I drew attention earlier, my partner is a trustee of a multi-academy trust.
The reinstatement of the school support staff negotiating body is a hugely welcome measure and long overdue. It is a real shame to hear that there will be cross-party division on this question, because the consequences of the decision to abolish the SSSNB are negative, they are serious and they are now plain to see. We will come on to detailed discussion of the schedule and the amendments, but it is worth reflecting on the rationale that the then Government gave back in 2010 for abolishing the SSSNB. The Secretary of State at the time said—and he never went much beyond this—that the Government had
“concluded that the SSSNB does not fit well with the Government’s priorities for greater deregulation of the pay and conditions arrangement for the school workforce.”
What has been the consequence of that decision? We saw it last year, when the Low Pay Commission, for the first time, reclassified school support staff roles as low-paying occupations. That should be a mark of shame on the Governments that oversaw that unhappy outcome—which, as I said, was a consequence of the decision to abolish that body.
Sarah Gibson
I completely agree with the hon. Gentleman; I must make a declaration that my parents were a state headmaster and headmistress before their retirement. One issue that I strongly feel needs to be taken into consideration—though perhaps it is not relevant to this Committee—is that funding for education in general has driven down the pay of these roles. If there were good funding for the education sector in general, these roles would not need so much protection. While we are considering giving more bargaining power, we also need to ensure that there is enough funding for education so that those roles can be paid, otherwise there will merely be fewer of them. I think that is something we need to take into consideration, do you not?
Laurence Turner
I thank the hon. Member for Chippenham for her intervention. I agree with her up to a point. Teaching assistants’ wages have increased by about 24% on average over the period that we are talking about, while the consumer prices index has increased by 40% over the same period, so there has been an erosion in wages. We could talk about funding at great length. However, as she said, it is beyond the scope of the Bill and the clauses that we are discussing.
The matter goes beyond funding and pay, as important and relevant as those two issues are, because it is also about contracts and about terms and conditions. There are real problems, which we will discuss, involving the construction of term-time only contracts as they currently exist. We saw in the Harpur Trust v. Brazel decision the liabilities created for employers, as well as for workers, by existing contracts inherited from negotiating arrangements that are not fit for purpose. There is a strong rationale for extending and separating the negotiation over terms and conditions, as well as over pay. That point has been recognised for a long time. Given the complaints that we have heard from the Opposition about what they see as the expeditious drafting of policies and clauses in the legislation, I hope they welcome having this matter before us, which has precedent and is the result of more than 20 years of policy development.
It was recognised as far back as the 2005 schools White Paper that an early challenge for the school workforce agreement at that time—signed, I think, in 2003—would be ensuring fair pay and rewards for support staff. We want to ensure that that is supported by a more coherent approach to union recognition at school level, clearer career paths and skills escalators, and a more standardised and benchmarked approach to grading, job descriptions, contract awards, deployments and school support staff training and development. Those are exactly the issues that we are talking about. It is sad to look back at those complaints from 20 years ago and to realise just how little progress has been made.
The decision to increase the number of school support staff workers, which was carried forward by Governments of all parties, was taken because at the time the workload of teachers was far too high. There were serious problems of classroom management and teachers found themselves undertaking a huge number of administrative duties, rather than teaching. Those complaints are current today, but it was worse then, and that was remedied by the introduction of more school support staff workers.
My hon. Friend the Member for Penistone and Stocksbridge spoke about her own experience. I can also speak from direct experience, having been a special educational needs and disabilities kid during that time, about the value to me of school support staff workers. I do not think I would be here in this Committee without them. However, for too long we collectively have not recognised their contribution.
The Minister made the point that the National Joint Council for local government services is not adequate for school support staff workers. The Green Book was never designed to accommodate those roles, and it is an anachronism that school support staff workers continue to fall under the Green Book. Indeed, while the Confederation of School Trusts has some wider concerns—I think one of the Opposition’s amendments is modelled on the submission that the CST made to the Committee—it has said that it agrees that the time is right to take school support staff negotiations out of the local government umbrella.
I know from representing school support staff workers in the past that they are some of the lowest paid workers in the public sector. I have represented some—primarily women—who have been forced to resort to food banks and payday loans to make ends meet, but they often still dip into their own pockets to provide educational essentials to children who do not have enough to get by. That record has led school support staff to be reclassified as being in low-paying occupations, which should really be a badge of shame for us. The logic of live and let be, and of deregulating and letting a thousand flowers bloom across schools, has not worked, and I would be interested to hear what the Opposition have to say on that.
Sir Ashley Fox (Bridgwater) (Con)
The hon. Gentleman says that the great educational experiment has not worked, but would he not acknowledge the significant improvement in our children’s ability to read, write and do mathematics over the past 14 years? Scores in the programme for international student assessment show that standards of reading, writing and mathematics have improved enormously in England—although they have regrettably fallen in Scotland, for reasons we can imagine. I am really proud of the achievements of the coalition and later Conservative Governments in improving educational standards. The freedom granted to academies—the freedom to innovate and to employ staff on the terms and conditions that they wish—has been critical in that, but the Government are rolling back those freedoms. Does the hon. Gentleman acknowledge the educational achievements of the past 14 years?
Laurence Turner
That was quite a generous amount of time for an intervention. The hon. Member may wish to go back to the record, because the point I made was that the experiment over pay and terms and conditions has failed. The challenge to the Opposition was: do they recognise that there is a serious problem with school support staff remuneration and contracts? If they do, what are their proposals to fix it? I would be willing to take a second intervention on that point.
Greg Smith
Much as the hon. Member for Chippenham said, this is about political choices. If this new Labour Government, six months in, wish to make a political choice to fund schools to pay support staff more, why do they not make that political choice and make that money available? We all want people to earn more, to get more in their pay packet and to be richer.
Laurence Turner
I think we have it there: the Opposition do not see this as a political priority. They chose not to take steps or to put forward meaningful proposals to raise the employment standards of school support staff. My challenge was: do they have any proposals for this group of workers, particularly in light of the Low Pay Commission decision? We have not heard an answer.
Greg Smith
I am glad the festive spirit is alive and well, but I remind the hon. Gentleman—there is no sugar coating it for Opposition Members—that the Labour party had a thumping victory in July. There is no general election on the horizon, and there is little chance of any change of Government before 2029, so it is on the Labour party to make political choices for the next four and a half years. Will the hon. Gentleman do that, or is he just going to deflect back to the Opposition?
Laurence Turner
I doubt I am going to do it personally; as with all these things, it is a collective endeavour. The hon. Member asked whether the Government are going to do this, but they are doing this—it is in the Bill. I ask again: what is the Opposition’s alternative? We are yet to hear it.
It is worth reflecting on the nature of these review bodies—not that this is a pay review body; it is a negotiation body—and the way in which we establish new agreements, because these things do not happen quickly. I think that the establishment of “Agenda for Change” in the NHS took seven years from initiation to completion. That exercise took a long time, but I do not think anyone would seriously argue for going back to the plethora of terms and conditions, and the mismatch between different grades of workers, that existed before, which created serious equal pay liabilities. That is the situation that we inherit in respect of school support staff.
These things do take time. If the shadow Minister goes back to the record of the original school support staff negotiating body—from 2009 to 2010—the progress made in that relatively short time was not on establishing the new pay system, but on drawing up model role profiles and moving towards a national handbook for terms and conditions. Those measures would be hugely welcome today. In fact, the Conservative Government acknowledged that some the school support staff negotiating body had done some important work during that time. They were on record as saying that there was a clear case for carrying forward some of it, but that never happened, and we have been left with an absence in that area of policy for almost 15 years. The changes to pay will be hugely welcome when they come. It will be a negotiation, so the outcomes will be a matter for the parties represented on the negotiating body, including the Department for Education.
We must go back to the problem: schools are finding it increasingly difficult to recruit and retain skilled school support staff. A number of private sector employers, including supermarkets, are increasingly offering term-time only contracts, with the intention of attracting people out of schools and into alternative roles. Freedom of information requests show that, where data is held, teaching assistant vacancy rates run at around 10%. That is having a real impact on the ability of schools to deliver inclusive education, which is a shame.
Nick Timothy
On schools’ ability to deliver, my hon. Friend the Member for Bridgwater asked the hon. Gentleman a moment ago to acknowledge the significant rise in the performance of English schools in the PISA rankings and other international comparative studies. Will he clearly say whether he acknowledges or denies that rise?
Laurence Turner
That is a direct question. We could talk about the way the PISA rankings are constructed.
The Chair
Order. We are not going to talk about that; we are going to talk about the Bill.
Laurence Turner
That is fine—I think that applies to both the intervention and the response. A direct question had been put about whether there is an alternative proposition on pay and terms and conditions, which is the matter we are considering today. I hope we will have an opportunity to talk in much more detail about the matters the hon. Member for Bridgwater raised, but the Opposition could not answer that direct question.
It is a shame that there is not more agreement on what is a very real policy problem. We have a serious—dare I say it—road-tested proposal in the Bill to reinstate the school support staff negotiating body. I am none the wiser about what measures the Opposition propose, but it is important that the clause be part of the Bill.
The Chair
Order. Obviously, education matters are relevant to the context of the discussion, but this is not a debate about education policy as such.
Uma Kumaran (Stratford and Bow) (Lab)
It is a pleasure to serve under your chairship, Mr Mundell. I refer Members to my entry in the Register of Members’ Financial Interests and to my membership of GMB union. I note the comments that you have made, but if I may I will just respond to the shadow Minister, who talked about the previous Conservative Government’s record. I draw his attention to an article published by the London School of Economics that said that England was an outlier among OECD countries, having both lower numeracy and literacy levels among school pupils.
Nick Timothy
Does the hon. Lady accept that it is not just the PISA rankings that show great advances in achievement in English schools, but the TIMSS—trends in international mathematics and science study—report published last week? That report said exactly the same thing: English schools are ahead of any comparable western country.
The Chair
Order. I am sure you did not wish to do it, Mr Timothy, but we are going down exactly the opposite route to the one I suggested. Let us stick to the Bill.
Uma Kumaran
The school support staff negotiating body—to stick to the Bill—is an important part of the Bill and will help to ensure standardised fair pay and employment terms across the board, addressing not only local but regional disparities.
School support staff make a massive contribution to the running of our schools. Just last Friday, I visited the Odessa school in Forest Gate in my constituency, which has an above-average intake of SEND pupils, and I saw at first hand the contribution the support staff made. That is why the Bill, and this clause, are so important—because those staff, too, deserve to have their contributions properly recognised through a negotiating body. At present, their job profiles are out of date, opportunities for professional development are poor and the work they do often goes largely unrecognised or unnoticed. The SSSNB can play a major part in tackling the recruitment and retention crisis across our schools.
I do not think anyone could look at our current approach to school staff and say it is a functioning system—that is certainly not what I hear from teachers when I visit local schools. Local support staff have told me the hardships they are under, and the TUC has shared a report with us showing that one in eight workers use food banks, a quarter take second jobs and half are actively looking to leave their role because they cannot make ends meet.
The attitude—which some may call neglectful—that we have had towards school support workers due to the approach taken by the last Government has sent a clear message that they simply are not valued. By re-establishing the school support staff negotiating body, the Bill will change that. I therefore commend the clause to the Committee.
Sir Ashley Fox
It is a pleasure to serve under your chairmanship, Mr Mundell. We are discussing clause 28 and schedule 3, and the hon. Member for Birmingham Northfield asked what the Opposition’s proposal would be. Well, nothing needs changing—the clause and schedule are completely unnecessary. I say that because it is my belief that the way the education system in England is delivered—mostly by academies—is a successful model. The Government’s proposals will harm our education system because they will take freedom away from schools and academies. There is a fixed amount to be spent on education, and the governors of schools and academies are best able to decide where those resources are allocated.
The hon. Member for Birmingham Northfield told us it was unfair that some teaching assistants have lower pay than others and that their terms and conditions are not identical. He also said it was difficult to retain and recruit teaching assistants. If that is the case, the governors of a school or the leaders of an academy can pay more to recruit the staff they need.
What we see from the Government is a belief that Whitehall knows best. They intend to centralise terms and conditions and will try to specify how much each teaching assistant in each school will work, because that suits their political agenda and the agenda of the trade unions that pay for their election campaigns.
Laurence Turner
Why does the hon. Gentleman’s argument against central direction-setting not apply to teachers? Is he arguing for the abolition of the School Teachers Review Body?
Sir Ashley Fox
Teachers are different because teaching is a profession that should certainly agree not to strike on pay and conditions, in return for the provision of the pay review bodies, which should play an integral part in ensuring that children’s education is not disrupted by industrial action. I would be happy to grant academies the freedom to pay a little more or less for scales, although perhaps that is not currently possible. I want the maximum freedom granted to academies and schools because, fundamentally, I believe they are best able to allocate the limited resources.
As my hon. Friend the Member for Mid Buckinghamshire said, if the Government really wanted to raise pay and improve conditions for teaching assistants, it is in their power to increase substantially the amount of money available for schools. They choose not to do that, but instead say that schools must stick to certain parameters on pay and conditions that will not enable schools to deliver the best education for children.
It is important that I talk briefly about the enormous improvement in educational standards for our children, which has been enabled by the freedom that academies have been granted. Clause 28 and schedule 3 start to roll back those freedoms. My fear is that this is the start of a process in which we will see educational standards in England deteriorate.
Laurence Turner
I thank the hon. Gentleman for giving way a second time. He describes a picture of extraordinary success. Classroom-based support staff spend the majority of their time supporting SEND learners. Does he regard the SEND system as a success?
Sir Ashley Fox
I am trying to think of how clause 28 and schedule 3 relate to SEND education, and I am struggling. I do not believe that the SEND system is a success, and I do not think that more central control is the way to solve that. In fact, one of the problems is that every time there is a problem, we in Parliament and Whitehall think, “The solution is a directive from above. That will sort out the problem.” That is precisely the model that the Government are adopting in clause 28 and schedule 3: “There’s a problem with low pay, so we will set up a process in London that will help matters.” That is not true at all.
I hope we can all agree that the purpose of spending money on education is to improve the life chances of our children. How are resources allocated? Are they best managed on a school basis or an academy basis? Or are they best decided in London? I argue that they are best decided on a school or an academy level. As I say, I fear that clause 28 and schedule 3 are the beginning of a process in which we will see more and more central control exerted over schools, and that that will lead to worse outcomes for our children.
Justin Madders
I will respond in the strict terms that you have directed, Mr Mundell. I also point out to Members that an education Bill will be presented today. So there will be an opportunity for the wider debate that Members are keen to have, when that Bill gets its Second Reading in due course.
Nick Timothy
I will avoid the temptation to start to read out the PISA statistics. It is important that the Bill that is published today is seen alongside this Bill, because together they chip away quite substantially at the academy freedoms that have been behind school reform. It would be good to hear the Minister acknowledge that fact.
Justin Madders
Of course, the Bill has not been published yet, so we cannot stray into that. We may be able to get on to it this afternoon, but we are trying to help some of the most poorly paid people in our society, who do such an important job. My hon. Friends the Members for Penistone and Stocksbridge, for Birmingham Northfield and for Stratford and Bow all talked about how important teaching assistants are, particularly in supporting those with special educational needs. My hon. Friend the Member for Birmingham Northfield was right that it is shameful that the Low Pay Commission has now deemed teaching assistants to be part of the low pay environment. We are determined to address that, which is why the reinstatement of the SSSNB is an important step.
Let us reflect on some of the evidence that we have had—for example, the GMB evidence. Andy Prendergast said:
“we see increasingly more pupils with special educational needs go into mainstream education, and they need that additional support.”––[Official Report, Employment Rights Public Bill Committee, 28 November 2024; c. 132, Q136.]
Some of those staff do detailed things such as phonics, supporting pupils with special educational needs and disabilities, and help to deliver classes.
I take the point that has been made about the NJC being an inappropriate way of evaluating and assessing job value. It is clear—indeed a number of other pieces of written evidence have supported our assertion—that the NJC is not the right vehicle for assessing teaching assistants’ pay. We believe that the SSSNB is the way ahead.
The hon. Member for Bridgwater talked about this being a centralising move. Of course, the SSSNB will comprise mainly employers and employee representatives. It will not be a Whitehall-dominated machine.
Sir Ashley Fox
But to the extent that the SSSNB will decide the terms and conditions of assistants in Bridgwater, Mid Buckinghamshire and Birmingham Northfield, and those conditions will apply to all teaching assistants, regardless of the school’s or academy’s view on the subject, it is a centralising measure, does the Minister not agree?
Justin Madders
It is a necessary measure because, as we have seen, teaching assistants and school support staff have suffered in recent years. The point that the hon. Member for Chippenham and several other Members made about funding is correct. It will, of course, be incumbent on future Governments to ensure that any proposals that come forward are affordable. It should be noted that the recent Budget put some additional funds into special educational needs.
Let us look at why this measure is needed. We know that there is a chronic issue of low pay, a lack of career progression and damaged recruitment and retention among school support staff. A survey of teaching assistants found that 27% were considering leaving education altogether—surely we need them to stay—while 60% cited low pay as a reason for leaving, and 40% said that lack of opportunities for progression was. Eighty-nine per cent of schools said they found recruitment difficult, particularly in respect of teaching assistants, and 78% said they found that group hard to retain. There were similar figures in terms of the difficulties with the recruitment and retention of teaching assistants with SEND specialisms.
We are setting up this body to recognise that these people do a critical job in our education system and that they are not properly represented at the moment. They do not have a proper voice, and they do not have a proper mechanism to ensure that the valuable work they do is properly measured, remunerated and recognised. That is why the SSSNB is so important.
Question put, That the clause stand part of the Bill.
Employment Rights Bill (Fourteenth sitting)
(1 day, 11 hours ago)
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The Committee divided: - Ayes: 3 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 11 / Noes: 4 - Question accordingly agreed to.
Greg Smith (Mid Buckinghamshire) (Con)
I beg to move amendment 168, in schedule 3, page 115, leave out from the beginning of line 15 to the end of line 31 and insert—
“(1) In the case of staff employed under subsection (3)(b) of section 148C, matters within the SSSNB’s remit are limited to the establishment of a framework to which employers of school support staff must have regard when discharging their functions.
(2) A framework under subsection (1) must include information on—
(a) the remuneration of school support staff;
(b) the terms and conditions of employment of school support staff;
(c) the training of school support staff;
(d) career progression for school support staff; and
(e) related matters.
(3) When taking any action related to the matters in subsection (2), an employer may disregard the framework only in exceptional circumstances.
(4) For the purposes of subsection (3), the definition of ‘exceptional circumstances’ shall be set out in regulations.
(5) In the case of staff employed under subsection (3)(a) of section 148C, the matters within the SSSNB’s remit are matters relating to the following—
(a) the remuneration of school support staff;
(b) terms and conditions of employment of school support staff;
(c) the training of school support staff;
(d) career progression for school support staff.
(6) The Secretary of State may by regulations provide that, for the purposes of subsection 5—
(a) a payment or entitlement of a prescribed kind is, or is not, to be treated as remuneration;
(b) a prescribed matter is, or is not, to be treated as relating to terms and conditions of employment of school support staff;
(c) a prescribed matter is, or is not, to be treated as relating to the training of school support staff;
(d) a prescribed matter is, or is not, to be treated as relating to 30 career progression for school support staff.”
This amendment would change the matters within the SSSNB’s remit in relation to academy staff, limiting it to the creation of a framework to which academy employers must have regard in all but exceptional circumstances.
It is a pleasure to serve under your chairmanship, Ms Vaz, at the Committee’s last sitting before Christmas—let us make it a memorable one. [Laughter.]
The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)
They are all memorable.
Greg Smith
Some are definitely more memorable than others.
Amendment 168, tabled in my name and that of my hon. Friends on the Conservative Benches, would change the matters that are within the remit of the school support staff negotiating body in relation to academy staff, limiting it to the creation of a framework to which academy employers must have regard in all but “exceptional circumstances”. I am sure that Government Members will agree to a moderate amendment in the spirit of what they seek to do.
As I said in the debate on clause 28, which introduces schedule 3, in 2010 the then Conservative Secretary of State for Education, Michael Gove, rightly abolished the school support staff negotiating body. The Conservative Government had a clear and principled reason for that: employers should have the flexibility to set pay and conditions locally, rather than having a top-down, centralised framework imposed on them. Instead of giving employers the flexibility to do what works best for them, this Government are establishing a national terms and conditions handbook on training, career progression routes and fair pay rates for school support staff.
These things can sometimes get taken out of context, so I want to be clear: we are not advocating for a race to the bottom on pay and conditions for school support staff, but we believe that the current arrangements are working well and have allowed for innovation that is beneficial for pupils—real children up and down the land receiving their education. Our worries about the re-establishment of the school support staff negotiating body are principally that we believe that school employers must retain a degree of freedom and flexibility to recruit, develop, remunerate and deploy their staff for the benefit of the children in their community—their setting—to achieve their particular aims from a school improvement and inclusion perspective.
Children with special educational needs and disabilities rely on schools’ ability to deploy staff to meet their individual needs, and stifling innovation in staffing to meet those needs would be the greatest barrier to reforming the SEND system. In particular, ensuring that mainstream provision can meet the needs of SEND children requires, in its very essence, an innovative use of support staff resource.
As I have said in previous debates, I salute all support staff, whether they support children with SEND or other- wise. They are great assets to every school who do an enormous amount of good work for every child they work with on a daily basis—I am thinking of the example given earlier by the hon. Member for Birmingham Northfield, and the way in which they interact with and support my own children in their schools in Buckinghamshire. They are hugely important, but this is about ensuring local decision making, local flexibility and the local ability to shape what is right for children’s education, development and future life prospects.
For those reasons, we believe that the statist approach created by the Bill is fundamentally misguided, and that children, particularly those with additional needs, could be worse off because of it. All school employers operate in a competitive market to attract and retain staff. I accept that in the education world it is currently particularly difficult to recruit teachers and support staff—there is no doubt that that has been a challenge for a considerable number of years—but, particularly in relation to support staff, schools compete with other local establishments, including in the private sector, and employers in local markets. Incentives to attract and retain staff are needed.
Our concerns with the re-establishment of the school support staff negotiating body do not end there. Academy trusts sign a funding agreement with the Secretary of State that gives them certain freedoms, among which is the ability to set pay and conditions for staff. What the Government are trying to do with the Bill is therefore to unpick a clear, established and positive freedom that academy trusts have. To take that away from them would be a retrograde step. The Bill explicitly overrides that contract. As for school support staff, it states:
“Where the person is employed by the proprietor of an Academy, any provision of the Academy arrangements relating to the Academy has no effect to the extent that it makes provision that is prohibited by, or is otherwise inconsistent with, the agreement.”
His Majesty’s loyal Opposition worry that this is just the start of the Government’s longer-term mission to unwind academy freedoms, and that it shows that they fail to understand how to support educational excellence.
The data on key stage 4 performance recently released by the Department for Education shows that academies and free schools tend to perform better than other types of school. We therefore believe that it would be counterproductive to unwind one of the key tenets that has led them to where they are today. There is always room for improvement, but when things are travelling in the right direction it is foolish to put barriers up. Our amendment would change the SSSNB’s remit so as to create a framework that academies must have regard to but are not compelled to follow. That seems a reasonable compromise, and I ask the Government to consider it carefully.
In this context—we are all creatures of our own experience—I think particularly of examples from my constituency of Mid Buckinghamshire and the county of Buckinghamshire more widely. I think I brought up this example in relation to other sectors in earlier Committee sittings. Because the county of Buckinghamshire borders London boroughs, rigid pay scales make recruitment an even greater challenge, because of the London weighting issue. Many teaching assistants, school support staff and, frankly, staff in any sector—we will come to adult social care later in the Bill, and care workers are equally affected—who live in Buckinghamshire and perhaps want to work there feel compelled to go and get the extra money that the London weighting would bring by applying for a job in, say, the London boroughs of Hillingdon or Harrow. Nobody can blame them for doing that, but it creates a recruitment challenge for Buckinghamshire, Hertfordshire, Essex, Kent, Surrey and other London-bordering counties.
The amendment seeks to correct for what the Government are trying to do with schedule 3, and so to maintain the freedom that allows academies in Buckinghamshire and those other counties to dynamically adapt their pay and offering for school support staff and counter those challenges. It would mean that schools in Buckinghamshire that want to employ people who want to work in Buckinghamshire can get them on board, rather than there being a false incentive that forces people to take jobs in one of the London boroughs and secure the London weighting that goes with them. That is one practical example of why I believe that academies, and free schools for that matter, should have that core freedom and flexibility to get it right for their children.
Laurence Turner (Birmingham Northfield) (Lab)
It is a pleasure to serve under your chairship, Ms Vaz.
I think I am correct in saying that Buckinghamshire is one area that has opted out of the National Joint Council, so I recognise that the shadow Minister brings a particular perspective to the debate, but the final line of the amendment states that
“a prescribed matter is, or is not, to be treated as relating to 30 career progression”.
I assume that is just a typographical error, but it would be good to have that point clarified.
More widely, I do not think the amendment is necessary. In some ways, it is quite loosely worded. It seeks to put in the Bill a reference to a framework, but a framework is not defined and that would not be clarified through later regulations. Therefore, I am not sure that the wording before us would necessarily resolve the Opposition’s aim, and the meaning of “framework” is probably not something that we would want to have out in the courts.
On the wider issues, the shadow Minister said that the proposals in the Bill would overwrite the funding agreements, but part of those agreements is a requirement for academy employers to have regard to the academies handbook, which is altered as part of the normal course of public policy, so such variations are not especially new. As I say, I do not think that what is in front of us would achieve the Opposition’s aim. The reinstatement of the school support staff negotiating body was a manifesto commitment. It would be problematic to say that a manifesto commitment could not be implemented because funding agreements were already in place. It is quite proper for the Government of the day to pursue their public policy objectives in this manner.
I would like to correct the record. In the morning sitting I said that freedom of information requests had established that, where data was held, the vacancy rate for teaching assistants was 10%. The actual figure is 18%. I just wanted to put that higher number on the record.
Nick Timothy (West Suffolk) (Con)
I should warn the Committee that I have a frog in my throat and a bit of a cough, but I think it is known that I used to work for the former Prime Minister, Baroness May, and I have seen how to get through a speech with a cough.
The amendment is important because it seeks to protect one of the academy freedoms that have made English schools the best in the west. I say English and not British schools advisedly, because education is devolved and, in Scotland and Wales, standards have gone not forward but backward. In Wales, the average pupil reaches about the same level of attainment as the average disadvantaged pupil in England, yet it is the Welsh model that the Government seem to be intent to follow. So the amendment is all about seeking to protect the academy freedoms behind the success of the school reforms of which the Conservatives are rightly proud.
According to the programme for international student assessment—or PISA—rankings, English primary school- children are the best readers in the west. On 15-year- olds, they say that schools in England are 11th in the world in maths, up from 27th in 2009; 13th in science, up from 16th; and 13th in reading, up from 25th. That is an unqualified success story. Yet I am afraid the Education Secretary and Ministers in the current Government repeatedly claimed that standards fell under the Conservatives.
Laurence Turner
The hon. Member is making an interesting argument. I am keen to tease out the evidence for the assertion that there is a relationship between the decentralisation of pay and terms and conditions, and performance. Can he explain why, then, the overwhelming majority of academies subscribe to the National Joint Council green book terms and conditions? Is that not, in fact, an argument for collective bargaining as a handmaiden to academic success?
Nick Timothy
I am doing my best to remain in scope, Ms Vaz.
If I may say so, the hon. Member asks a characteristically precise and intelligent question. I suggest that members of the Labour party who want to move away from academy freedoms look first at what Labour figures such as Tony Blair and Lord Adonis say about why those freedoms matter.
It is a bit like with the Bill overall: just because some employers choose to hit certain standards, that does not necessarily mean that those standards must then be imposed in a uniform manner through legislation. The point about academy freedoms is that, a little like labour market flexibilities, they are cumulative. If we look at the list of academy freedoms—whether in respect of the terms and conditions that schools are able to employ staff on, the relationship with councils and how admissions are decided, or the policy of having to respond to school failure through academisation—we see that they are all being picked away at, partly through this Bill and partly through the Children’s Wellbeing and Schools Bill, which we discussed briefly earlier and is being introduced today. While that Bill has not been published, as the Minister corrected me earlier, there is a description on gov.uk of the measures in that Bill, and it is quite clearly a reversal of policy when it comes to academisation. The reason that school reform has worked over this time is not just because of particular measures about things such as the promotion of a knowledge-rich curriculum, or didactic teacher-led instruction, or anything like that. Those are the means by which lots of schools have chosen to use their academy freedoms in order to improve standards—
The Chair
Order. This is the Employment Rights Bill, not an education Bill. I do not know how long you are going to continue, but could we move to a possible wind-up, Mr Timothy?
Nick Timothy
Perhaps we could, but I am trying to make the argument that, in the end, when we are talking about employment in the public sector—when we are talking about terms and conditions and things like that—yes, these things are obviously of huge importance to the employees themselves, but they are also important regarding the way in which employers set themselves up. The purpose of a school is obviously to educate our children, and the ultimate objective is to drive up those academic standards. That is the context in which we are discussing these particular academy freedoms and what this Bill therefore does.
It is the case that free school and academy founders have been in the vanguard of reform, precisely because they have been able to use their freedoms from local council control—freedoms to develop the curriculum in their own way, to set things such as the school day and term dates, and to decide the pay and conditions for their staff themselves. We can see that in the data that is published: it is not just about things such the PISA rankings; it is also about things such as the trends in international mathematics and science study, an international comparative study, which was published a couple of weeks ago and showed that, despite the pandemic, English schools have actually improved and have outperformed almost all western countries.
It is also the case that the progress data that the Government have published demonstrates that the best schools in the country have benefited from exactly those kinds of freedoms. The best school in the country, looking at performance data, is Michaela, which is a free school. Free schools and academies far outperform normal maintained schools when it comes to that data, and that is because of the freedoms that we are talking about trying to defend through our amendment.
I know that this is a debate for another time, but I am very disappointed that the Government have cancelled the next wave of free schools, that they have weakened things such as Ofsted and its inspection framework, and that they want to water down discipline policies and so on. I am very disappointed as well that, through measures such as this, the Government are watering down the academy freedoms that have done so much to make our schools the best in the world.
Sarah Gibson (Chippenham) (LD)
It is a pleasure to serve under your chairship this afternoon, Ms Vaz. I share the passion of the hon. Member for West Suffolk for education—as I stated earlier, both my parents became headteachers before retirement—so I appreciate that he is very concerned about the state of education in our country. However, I am very concerned that this amendment is in danger of creating a slightly two-tiered system between maintained schools and academies, whereby maintained schools would have a certain level of protection for their staff that would not be there in academies.
If this change is so important for the academies, my question to the hon. Members for Mid Buckinghamshire and for West Suffolk would be that, if this is good for academies, surely it is good for maintained schools? In that case, why are we not arguing that this whole Bill should be changed, and that this whole clause should be taken out and the change therefore applied to all schools?
I am also concerned about the separation of requirements for one school and not for the other.
Greg Smith
Does the point the hon. Lady is trying to argue go to the very reason for having different types of school in the system? Academies were set up by the last Labour Government for a reason, which was to have additional freedoms such as those the amendment defends. Free schools were set up by the coalition Government, of which the Liberal Democrats were part, to have a different set of freedoms—in that sense, parental and governing body freedoms that are over and above everyone else. If we were to make all schools the same, surely that is an argument for one style of school alone.
Sarah Gibson
I appreciate the clarification. The point of free schools and academies was to have a diversity of education. A diversity of employment rights, which is what we are discussing, is a different element. If we end up with a situation where I, as a member of support staff, am looking at two jobs in my region, and one is with a maintained school and one is with an academy, and there is protection for one, I can only see that as detrimental to our academies. I am unable to support a provision that separates those two types of school.
Greg Smith
I am grateful to the hon. Lady for giving way once more. She is presuming that the academy would be offering a lower rate, but in fact, it might be the case that, in order to attract staff, the academy offers something much higher.
Sarah Gibson
I appreciate the point, and the shadow Minister is quite right: I was assuming that without support there might be such a situation. However, that does not detract from the fact that in most situations, having a body that someone can go to that is independent from their employer has to be a supporting situation. Nobody would go to that body for support if they were being paid above the average in their area.
Laurence Turner
Is it the case—perhaps this gets to the heart of the matter—that the proposed way that the SSSNB would work is that a matter would be referred to a body, an agreement would be reached, and it would be passed back to the Secretary of State to write it into regulations? Nowhere in the Bill does it say that that would be a ceiling. If it was something that was negotiated between the parties, it would be a floor that could be improved on. There is nothing in the Bill to stop that happening.
Sarah Gibson
I appreciate the clarification. That makes perfect sense—it would be unlikely that a body representing employees would create a ceiling, so I cannot help feeling that that issue is not likely to come up. With that in mind, I am unable to support the amendment.
Justin Madders
It is a pleasure to see you in the Chair this afternoon, Ms Vaz, and as always I refer to my entry in the Register of Members’ Financial Interests, and my membership of the GMB and Unite trade unions.
The shadow Minister will not be surprised to hear that we are not going to accept the amendment, as it would drive a coach and horses through what we are trying to achieve. The remit in the Bill gives the negotiating body the scope necessary to negotiate and reach agreements on pay and conditions, and advise on training and career progression for all school support staff. The Secretary of State may then incorporate agreements reached in support staff contracts through secondary legislation. As has been pointed out, that would be a floor. It will be possible for schools to innovate above that, and the detail will be worked out in due course. This is about creating a baseline for terms and conditions, not a ceiling.
As the shadow Minister knows, as roughly half of the 24,000 state-funded schools are academies the amendment would seriously undermine the policy intention of the SSSNB. We believe that about 800,000 employees would be positively impacted by the Bill, but the amendment would mean that school support staff in academies would have no voice, and no opportunity to raise their concerns about pay, career progression and training prospects, which we know are real issues, particularly in the SEN sectors. There would no vehicle for them, because they would not be part of this body. Of course their employers would have to have regard to what the SSSNB decided, but there would be no legal requirement for those terms to be incorporated into individual contracts. I think that misses the point of what we are trying to achieve here. I do not accept that there is a connection between good educational outcomes and low pay for teaching assistants, which seems to be the thrust of the argument from the Opposition. As my hon. Friend the Member for Birmingham Northfield said, the references in the amendment to a framework are not particularly helpful, as it is not defined and would create more confusion. We should say that it is not just academies that can demonstrate excellence in innovation. All schools have the ability to do that, and there will be room for all schools to continue to innovate under the legislation and meet their local recruitment needs.
Greg Smith
I listened very carefully to what the Minister and the hon. Member for Birmingham Northfield said about amendment 168. I was open to dialogue on it to see if we can make it stronger and improved. Its proposed new subsection (2) sets out all the information we would expect to see in such a framework. There are five parts including the remuneration of school support staff; the terms and conditions of employment of school support staff; the training of school support staff; career progression for school support staff; and—the lovely catch-all phrase that drafters love to put in—all related matters. I would say that it is pretty clear what we have laid out.
To get to the nub of the argument, this is not about some sort of race to the bottom. It is not about, as the Minister asserted, arguing for low pay. That is not what we are doing at all. This is a point of principle about support for the academy system, which was brought in by a former Labour Government, and support for free schools, which was brought in by a coalition of the Conservatives and Liberal Democrats. The three main parties in this House on that basis are broadly aligned, unless anyone has radically changed their mind—perhaps they have, and 2015 probably did focus some minds.
This is a point of principle of diversity in the education system, and central to the diversification of offer is that those establishments, in this case academies, have the freedoms to decide things themselves, locally. In this case, it is on pay and terms and conditions but, wary of the fact that I do not want to go out of scope, it can be on other things as well. To take that away would be the retrograde step that I spoke about. It would undermine academies, and it would undermine the very point of having choice and the diversity of offer in the education system for parents.
Justin Madders
The shadow Minister is talking about choice, but the Bill does not remove any academies from the current system. Will he confirm that?
Greg Smith
No, of course it does not remove academies from the system, but it does take away a freedom and power that all those wonderful academies, many in my own constituency and I am sure some in the Minister’s, currently enjoy to be able to set their educational offer, including the power of who they recruit and on what basis they recruit them. I come back to the point I made when I intervened on the hon. Member for Chippenham; if we are going to just make everything the same again, there needs to be an honesty about actually advocating that from the Government, from the Liberal Democrats or from whoever it might be. I value and welcome the choice that we have in our education system, and this is one of those freedoms that makes that choice possible.
Michael Wheeler (Worsley and Eccles) (Lab)
Will the hon. Gentleman give way?
Sarah Gibson
I could not agree more with the hon. Gentleman about the importance of diversity of education. One of the things that academies and free schools have done very well is cater for children with learning difficulties, whether they are dyslexic or autistic, or doing all the other things that probably many of us in this room have benefited from. However, basic rights as an employee of an institution and the right to protection and a body to go to if somebody feels that they are being unfairly treated have little to do with diversity of education. I cannot help feeling that we are conflating the two issues of employment rights and educational standards, which do not necessarily go hand in hand. Paying staff well does not stop an institution having a diverse and fantastic form of education.
Greg Smith
I think the hon. Lady has potentially misinterpreted my remarks. I am not directly conflating the pay of staff with the educational outcome: I am saying that there are academies that may well be able to structure their own affairs in the way they recruit, pay and set terms and conditions so that that is actually more favourable. That is one of those fundamental freedoms that make academies—and free schools, for that matter—different and able to offer the diversity that we both seem to celebrate, particularly in supporting those children who need additional support to whatever degree in that setting. Someone else was waving at me a minute ago.
Michael Wheeler
I am more than happy to wave in a friendly manner in this festive sitting. As usual, I draw attention to my declaration in the Register of Members’ Financial Interests of my membership of the GMB and USDAW. We have heard the phrase “academy freedoms”, with a lot of emphasis put on freedoms. We have also heard the Minister confirm that diversity is not being lost in terms of educational choice. We have heard that teaching assistants, according to the Low Pay Commission, have unfortunately been defined as low-paid workers. Does the hon. Gentleman accept that the only “freedom” —I use inverted commas there, for the sake of the record—being lost is the ability of academies and free schools to pay poorly?
Greg Smith
I understand the point that the hon. Gentleman makes, but I caution him against this presumption that those academies want to pay poorly, somehow mistreat their staff or set pay rates so low that most of us would think that it was an absurdity. I am not sure that they do; I am not sure that anybody wants to pay their staff as low as they can get away with. Those academies often advertise and appeal for staff, be they teaching assistants, teachers, ancillary staff or whoever, in a manner that actually makes them more attractive than the other offerings. That is part of the freedom to set up the school in the way that they wish and to ultimately deliver the best possible outcome for the children they are teaching and preparing for their future lives.
I come back to the point that if we start stripping away the freedoms and rights of those establishments to have local control, in this case around employment, I do not see any other natural conclusion than trying to bring our entire educational establishment back into being one single style of education. There may be some on the left—I say “the left” broadly; I am not just looking at the Labour party—who would welcome going back to simply having the secondary modern or whatever it might be. To be fair to her, the hon. Member for Chippenham agreed with me on the point of diversity and choice in education. It is a huge strength and a benefit to all children in this country that we have that level of different offering and choice in our educational establishment, and it has made our country fundamentally better. For total fairness, I repeat the fact that it was the last Labour Government who introduced academies.
Nick Timothy
I reassure my hon. Friend that the danger he is talking about is not just hypothetical. Special advisers in the Department for Education have briefed the newspapers, calling free schools a “Tory vanity project”. I find that absolutely appalling, as somebody who believes—
Nick Timothy
Yes, and free schools have the academy freedoms that we are talking about undermining with this and other legislation. I just wanted to draw that example to my hon. Friend’s attention.
Greg Smith
I am grateful to my hon. Friend; he is always reassuring. He raised an important point. Given that, as he highlighted, free schools enjoy the same freedoms —they are specifically referred to in amendment 168—as academies, I am worried that the Government’s attitude to free schools indicates that they are rowing back on support for them.
Justin Madders
The shadow Minister keeps referring to freedoms, but does he accept that the only freedom that would be given to academies by virtue of this amendment would be the freedom to pay their staff—I am not saying that they would—lower than the national terms and conditions?
Greg Smith
I come back to this point of principle: either we have autonomous bodies that can make their own decisions or we do not. If the Government’s answer is that we do not, I certainly understand why they do not want this amendment, but I do not understand why they persist with their support for that which they created in the first place—the academisation of so many schools—and resist making the more straightforward argument for a one-size-fits-all education policy. I hope they do not adopt such a policy, because of the progress that the Labour party made through academisation in the first place. However, that is the natural conclusion of what the Minister is saying.
Alex McIntyre (Gloucester) (Lab)
I refer to my membership of the Community and GMB unions. In the break, the shadow Minister challenged me, saying that I had been very quiet this morning—I was feeling festive, but perhaps I am feeling less festive now. Let us take the analogy about choice that he is trying to set out and put it in a slightly different context. Private limited companies are often seen as the drivers of growth, and we have heard lots about that from the Opposition. Those companies have lots of freedoms to make decisions and to invest where they want, but they are all subject to the national minimum wage. Is the shadow Minister suggesting that a national set of terms and conditions will remove academies’ freedom to make entrepreneurial decisions? I am interested to hear whether the Conservative party’s position is now that the national minimum wage should also be abolished.
Greg Smith
No. I did challenge the hon. Gentleman on his quietness in the morning sitting, and he has not disappointed this afternoon, but of course that is not the position of the official Opposition. The last Labour Government brought in the national minimum wage, but the last Conservative Government brought in the national living wage. We are absolutely committed to that, but it is a rule that applies equally and evenly across every sector in the economy. In schedule 3 and amendment 168, we are talking about a specific carve-out of an existing position for one specific sector.
Justin Madders
I beg to move amendment 65, in schedule 3, page 116, line 6, leave out “education”.
This amendment, and amendments 66, 67, 69, 70 and 71, make a minor drafting correction.
Justin Madders
Amendments 66 and 67, and 69 to 71, make minor drafting corrections to the clauses to remove the word “education” when referring to local authorities. This is necessary because of an error in terminology used in the Bill on introduction.
I will also speak to amendment 68. We know that academy trusts use a range of innovative practices to support staff in a range of roles. The sector and the workforce have evolved since the previous negotiating body for school support staff existed in 2009. That is why we intend to consult on the definition of support staff in scope and appropriate protections for staff in transitioning to the new arrangements. The consultation may bring to our attention staff in academy trusts who are not captured by the existing definition of support staff, working wholly at one or more academies, but who we think should be. Having the ability to broaden the scope, as well as to exclude staff types in secondary legislation, would give us more flexibility to respond to the consultation.
Greg Smith
As the Minister said, amendment 68 extends the definition of school support staff in the Bill to include people who do not work in an academy, but who are employed by the proprietor of an academy to carry out particular kinds of work, to be specified in regulations—it is our old friend, waiting for future regulations to be laid before the House—for the purposes of one or more academies. The other amendments in this grouping are minor drafting corrections, and we accept that. I merely want to put on record once more that had this Bill not been so rushed to meet the arbitrary political 100-day deadline, we might not be in this place, and we might have had greater clarity from the get-go. We accept, however, that these are fundamentally minor amendments that really should have been included at introduction.
Justin Madders
The shadow Minister’s comments are noted, and I commend the amendments to the Committee.
Amendment 65 agreed to.
Amendments made: 66, in schedule 3, page 116, line 8, leave out “education”.
See the explanatory statement for amendment 65.
Amendment 67, in schedule 3, page 116, line 10, leave out “education”.
See the explanatory statement for amendment 65.
Amendment 68, in schedule 3, page 116, line 13, leave out from “employment” to end of line 14 and insert “which—
(i) provides for the person to work wholly at one or more Academies, or
(ii) provides for the person to carry out work of a prescribed description for the purposes of one or more Academies.”
This amendment extends the definition of “school support staff” in new Part 8A of the Education Act 2002 to include people who do not work at an Academy but are employed by the proprietor of an Academy to carry out particular kinds of work (to be specified in regulations) for the purposes of one or more Academies.
Amendment 69, in schedule 3, page 123, line 31, leave out “education”.
See the explanatory statement for amendment 65.
Amendment 70, in schedule 3, page 123, line 33, leave out “education”.
See the explanatory statement for amendment 65.
Amendment 71, in schedule 3, page 124, line 13, leave out “education”.—(Justin Madders.)
See the explanatory statement for amendment 65.
Greg Smith
I beg to move amendment 123, in schedule 3, page 124, line 39, at end insert—
“(2A) Before making or revising arrangements under sub-paragraph (1), the Secretary of State must publish and lay before Parliament an impact assessment of the costs on the education sector of any proposed arrangements.”
This amendment makes a requirement from the Secretary of State to undertake an impact assessment of the costs on the education sector before making or changing arrangements related to the School Support Staff Negotiating Body.
The Chair
With this it will be convenient to discuss amendment 124, in schedule 3, page 126, line 9, at end insert—
“(1A) The report must include an assessment of the increased costs to the education sector of any pay and conditions agreements made in that reporting year.”
This amendment requires the annual reports of the School Support Staff Negotiating Body to include the cost of pay and conditions agreements.
Greg Smith
Amendment 123 requires the Secretary of State to undertake an impact assessment of the costs to the education sector before making or changing arrangements related to the school support staff negotiating body. I have already spoken, probably at greater length than anybody particularly wished me to, about our reservations over the re-establishment of the body—in particular the way that it will override the traditional academy freedoms that seem to trigger Government Members so much.
I am interested in what assessment the Secretary of State has undertaken about the current arrangements for pay and conditions for support staff, and in whether the Minister can provide concrete evidence about the shortcomings and how those would be rectified by re-establishing the school support staff negotiating body. In other words, is the policy driven by evidence or by ideology? The amendment asks for the Secretary of State to come clean about the costs of the proposed arrangements, not just to the schools budget but to pupils in schools.
We had some back-and-forth earlier about how, if they are to work, the changes made by the Bill need to marry up with the real-life pay settlements and budgets made available by the Treasury. Otherwise, the net result will be that schools will have to obey the rules as set out in the Bill without getting any additional money to pay for doing so. Who will suffer if the school is asked to do that? It will be the children and pupils, because of the number of textbooks, laptops, iPads or interactive screens and boards—all the things that are used in education—that the school can buy.
Laurence Turner
I am trying to understand what the shadow Minister means by cost to the education sector. Does he mean the running cost of the body itself or the cost of an agreement? If he means the latter, how could that possibly be accounted for when, as we have heard, any new pay scale is likely to be some years away and would be subject to negotiation?
Greg Smith
The answer is, of course, both. There will be a cost to the body and a cost to the individual education establishments—the academies, free schools and so on—that still fundamentally rely on a funding settlement. One pot of money can only go so far. I accept that the body itself will be separately funded, but the pay awards that individual schools would have to make will not. If schools are being asked to swallow the cost, they will have to find it within their budgets.
I am sure that I am not alone in having visited schools—other hon. and right hon. Members will have done so in their own constituencies—where headteachers say that they have to have this debate when setting their budget every year. Over the decades, Governments of all political persuasions have given them things to deliver and rules to follow but only one pot of money, so something has to give. If they are to follow the rules, the ones who suffer are children, through the equipment and books that the school is able to purchase.
The amendment is a reasonable one. It requires one of those impact assessments, so that we can all be absolutely clear. When we vote, in whichever way, on this Bill as it passes through Committee, Report and Third Reading, as well as ping-pong with the other place, we can be really clear about what these provisions mean on the ground for real schools and real children going through their education. As I think we all accept, that is so important to their future lives.
Amendment 124 requires the annual reports of the school support staff negotiating body to include the cost of pay and conditions agreements. We believe it is important that there is transparency over the additional costs and burdens that this new body will impose on school employers. What might those costs be? Will the Department for Education appropriately compensate school employers for them? I will not repeat the arguments that I made on amendment 123, but the point is fundamentally the same. The amendments are designed to probe the Government properly on what the measure will mean in the real world.
Laurence Turner
I want to come back on some of the points that the shadow Minister raised. I appreciate his clarification about exactly what information the Opposition are trying to tease out with amendment 124. I hope he does not mind me saying that the cost of any future settlement agreement is speculative in nature. We heard from the Minister earlier that part of the remit that Ministers will give the body will be about affordability and the funding available at the time. It will probably be several years in the future when that new pay scale comes into force, albeit that there is some good work that the SSSNB could be getting on with in the interim that would have very low costs for the sector.
We have some information about how much the body itself would cost. An answer to a written parliamentary question in 2011 put the estimated cost saving of abolishing the SSSNB at £1.4 million over the spending review period. That was about £350,000 a year. In today’s prices, we are looking at close to half a million. That is a very small fraction of a percentage of the Department’s budget, and it is probably an overestimate given that civil service wages have not kept pace with inflation over that time. The former education spokesperson for the Labour party, Andy Burnham, who was involved in the setting up of the original SSSNB, described it as a “low-cost panel”. That is exactly what we are talking about here. I hope that that provides some reassurance that amendment 124 is not necessary.
The SSSNB produced annual reports, which were published by the Government in the normal way. The Department for Education tracks the costs of school support staff pay increases. That information is made available, including to sector representatives, through the schools and academies funding group. I hear what the shadow Minister says, but I do not think these amendments are necessary because the information is unknowable or already available, or it will be made available in the normal course of business.
Sarah Gibson
For similar reasons as I was concerned about previous amendments, I feel that I cannot support this amendment. I think it is unnecessary to add more complications to the system on things that are probably already covered in other areas.
Justin Madders
I thank the shadow Minister for tabling amendment 123 and 124 and for raising these issues. The Department will assess the cost implications of the constitutional arrangements of the SSSNB prior to constituting it, but it would be disproportionate to require an impact assessment. My hon. Friend the Member for Birmingham Northfield referred to some costs; those costs have not necessarily been pinned down at this stage, but they are clearly below the level at which a formal impact assessment would normally be required. It is envisaged that the costs of the body will be limited to administrative expenses and fees, so we do not think that amendment 124 is necessary.
The Bill requires the constitutional arrangements for the SSSNB to provide for it to prepare annual reports; it allows the Secretary of State to specify the manner in which reports are published. Assessing the impact on the education sector of agreements reached will be important, prior to the Secretary of State’s ratification of any agreements. We anticipate that the Department for Education will undertake an assessment of affordability and impact, as it will be better placed to do so than the SSSNB itself. It is important to note that there will be employers on the SSSNB who will be part of the body making those recommendations, so they will have those considerations at the forefront of their mind.
Considerations of cost and affordability will be an important part of any discussions and negotiations that take place in the SSSNB. Annual reports are likely to set out the work undertaken by the body, but the exact detail of what will be in the annual reports will be agreed at a later date; I do not think that it would be appropriate to specify that in the Bill.
Greg Smith
I cannot remember a single time in the last Parliament when the then Opposition would have made the case that there was no need for an impact assessment. I put that to the Minister very gently as a point of principle that is specific to amendments 123 and 124. However, I understand the argument that he is making.
The Opposition still think that the Bill’s approach is flawed as to diversity across our educational establishments. We will not press our amendments to a Division now, but we reserve the right to revisit the matter when we come up for air on Report, once the Minister has had time to reflect on the implications of his policy. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the schedule, as amended, be the Third schedule to the Bill.
Justin Madders
As the Committee has discussed, clause 28 introduces schedule 3, which provides for the establishment, remit and functioning of the school support staff negotiating body. Paragraph 1 of schedule 3 will insert into the Education Act 2002 a new part 8A, which contains proposed new sections 148A to 148R.
New section 148A will reinstate the SSSNB as an unincorporated body. Reinstating the SSSNB will give school support staff the voice and recognition that they deserve as a crucial part of the school workforce. It will help to address the recruitment and retention challenges facing schools and will drive standards in schools to ensure that we give every child the best possible chance in life.
New section 148B sets out the remit of the SSSNB for remuneration, terms and conditions of employment, training and career progression of school support staff, and the powers of the Secretary of State to define what is or is not to be treated as falling within those categories within the regulations. This ensures clarity over the remit of the SSSNB and what can and cannot be referred to it by the Secretary of State. The remit will lead to a national terms and conditions handbook, fair pay rates and clearer training and career progression routes for school support staff in England.
New section 148C defines school support staff in relation to who they are employed by and their role. Support staff are defined as all staff, other than qualified teachers, who are employed by local authorities, governing bodies and academy trusts to work wholly at schools in England. The 2009 SSSNB included only those support staff employed by local authorities and governing bodies to work in maintained schools within its scope. Support staff employed by academy trusts are now included in the SSSNB’s remit, despite the shadow Minister’s attempts to persuade us otherwise.
It is crucial that the body have a remit for all state-funded schools in England to achieve greater national consistency, irrespective of the type of school in which support staff work. Roughly half of the 24,453 schools in England are now academies, compared with approximately 200 in 2009 when the body was previously established. New section 148B gives the Secretary of State a power to prescribe in regulations those who will not fall within the SSSNB’s remit.
Amendment 68 will allow the Secretary of State to include, through secondary legislation, those who do not work wholly at academies within the SSSNB’s remit, by reference to the type of work that they do. The Department currently holds limited information about the roles in which support staff are employed in academies or the terms and conditions under which they work. It intends to consult on which roles should and should not be within scope of these provisions. These powers will provide the necessary flexibility to respond to that consultation and amend the remit of the SSSNB as necessary.
New section 148D sets out the power of the Secretary of State to refer matters to the SSSNB that are within its remit, namely those matters relating to remuneration, terms and conditions of employment and training and career progression of school support staff. Referrals by the Secretary of State to the negotiating body will mean that those representing employers and employees can agree and advise on suitable outcomes for school support staff within the parameters set out by the Secretary of State in relation to wider Government priorities and context.
New sections 148E and 148F set out the powers of the Secretary of State when referring matters relating to remuneration, terms and conditions of employment and training and career progression to the SSSNB. The Secretary of State may specify factors that the SSSNB must consider and a timescale for their consideration. The new sections set out the steps that the SSSNB must take, depending on whether it has or has not reached agreement on matters relating to terms and conditions. Where the Secretary of State refers a matter relating to the training and career progression of school support staff to the SSSNB, the SSSNB is required to provide a report on the matter to the Secretary of State, rather than reaching agreement.
New section 148G will give the SSSNB the power to consider matters within its remit that have not been referred to it, with the Secretary of State’s agreement. This will give the SSSNB the ability to raise alternative matters that it wishes to negotiate or advise on. Agreement from the Secretary of State is required from the outset to ensure that no work is undertaken on a matter that could be considered to be outside the SSSNB’s remit. It will also ensure that the body has sufficient capacity to consider referred matters within the required timescale, alongside any additional matters that the SSSNB wishes to consider.
New section 148H sets out the Secretary of State’s powers in relation to agreements submitted by the SSSNB. The Secretary of State may ratify an agreement in secondary legislation in full or in part—if in part, the part not ratified falls away—or refer the agreement back to the SSSNB to reconsider it under new section 148I. This power is necessary to ensure that any agreements are practicable—for example, that they are affordable—before being incorporated into contracts. The ability for the Secretary of State to ratify agreements in part is a pragmatic approach to allow matters with agreement to progress and to avoid delays if there is an element of an agreement that the Secretary of State is not content to agree.
New section 148I sets out what happens where the Secretary of State refers a matter back to the body for reconsideration. The Secretary of State may specify factors to which the body must have regard in reconsidering the agreement and by when it must revert.
New section 148J will apply where the SSSNB has submitted an agreement to the Secretary of State after reconsideration. The Secretary of State has powers to ratify the agreement in full or in part in regulations; to refer the agreement back to the SSSNB for reconsideration; to make regulations requiring prescribed people to have regard to the agreement in exercising prescribed functions; or to make regulations that make alternative provision in relation to the same matter. The new section gives the Secretary of State a range of powers to determine the best course of action based on the agreements from the SSSNB to ensure that the desired outcomes for school support staff are met and are practicable.
New section 148K sets out the process if an agreement cannot be reached by the SSSNB on a matter relating to school support staff remuneration and terms and conditions referred to it by the Secretary of State. The Secretary of State may specify a later date by which agreement must be reached or may make regulations in relation to the matter referred to the SSSNB if there is an urgent need to do so, but the Secretary of State must consult the SSSNB before making those regulations. This will ensure that the Secretary of State is able to regulate as necessary in the event that agreement cannot be reached, for instance on a pay award for school support staff.
New section 148L sets out the Secretary of State’s powers if the SSSNB fails to submit a report on a matter relating to the training and career progression of school support staff by the deadline set by the Secretary of State. The Secretary of State can specify a later date for the SSSNB to report or issue guidance on the matter. This ensures that the Secretary of State can still issue guidance on training and career progression to support recruitment and retention in the absence of a report from the body.
New section 148M sets out the effect of regulations made by the Secretary of State that ratify agreements reached by the SSSNB in full or in part. The terms of the agreement are imposed in a person’s contract of employment so that a member of school support staff must be paid and treated in accordance with those conditions. Any inconsistent terms in contracts of employment or academy funding agreements have no effect. That allows the Secretary of State to make changes to the pay and terms and conditions of school support staff as agreed by the SSSNB, in order to ensure fairer pay rates and greater national consistency, boost recruitment and retention in those roles, and drive improved standards in schools.
New section 148N sets out the effect of regulations made by the Secretary of State where she decides not to ratify agreements reached by the SSSNB or where the SSSNB fails to reach agreement on a matter. Where the Secretary of State decides to make regulations imposing terms and conditions into school support staff contracts, for example because there is an urgent need to make changes to terms and conditions and the SSSNB has failed to reach agreement on them, school support staff must be paid and treated in accordance with those terms and conditions. It is important that the Secretary of State has the ability to legislate to provide fair terms and conditions for school support staff in the event that the SSSNB fails to reach an agreement.
New section 148O will allow regulations made under part 8A to have retrospective effect, subject to their not subjecting anyone to a detriment in respect of a period that falls before the date on which the regulations are made. This will allow the Secretary of State to backdate pay awards agreed after the start of an annual pay period to ensure that school support staff may benefit from them for the entirety of the period.
New section 148P sets out how and when the Secretary of State and the SSSNB can issue guidance on matters within the SSSNB’s remit. The SSSNB, with the Secretary of State’s approval, can issue guidance on pay and terms and conditions, as can the Secretary of State. Only the Secretary of State can issue guidance on training and career progression. Local authorities, governing bodies and academy trusts are required to have regard to guidance issued. This will allow the Secretary of State and the SSSNB to support employers in the implementation of new terms and conditions and the promotion of training and career progression opportunities for school support staff.
New section 148Q will provide a carve-out for the SSSNB framework from the collective bargaining provisions in the Trade Union and Labour Relations (Consolidation) Act 1992. The new section is necessary to ensure that agreements reached by the SSSNB can be imposed in contracts only through ratification by the Secretary of State.
Paragraph 2 of schedule 3 will insert a new schedule 12A into the Education Act 2002. New schedule 12A includes provision for the SSSNB to be constituted in accordance with arrangements made by the Secretary of State. School support staff and employer representative organisations on the SSSNB will be set out in secondary legislation; the Secretary of State will be required to consult the TUC before prescribing which organisations represent school support staff.
The membership of the SSSNB will include support staff, employee and employer representatives, an independent chair and a representative of the Secretary of State. It may also include members who do not represent school support staff or their employers. However, only school support staff and employer representatives will have voting rights. The new schedule also provides for administrative support to be provided to the SSSNB, including for the Secretary of State to pay expenses for the chair and for administrative costs incurred by the SSSNB. The SSSNB is required to provide a report for each 12-month period.
I commend schedule 3, as amended, to the Committee.
Greg Smith
After that lengthy oration from the Minister, I can only conclude that when it takes that long to explain something, a bureaucracy is coming that probably nobody wants. As we rehearsed during our debates on amendments to the schedule, it challenges in many respects the freedoms that some of our education establishments enjoy.
As the Bill leaves Committee at some point in January and heads back to the main Chamber for Report, I urge the Minister to reach out to educational establishments—and perhaps to the Department for Education, but real-world schools are probably better—and reflect on the impact that this new bureaucracy will have on them. Is it as streamlined as it can humanly be? The Minister was on his feet for seven or eight minutes trying to explain that bureaucracy. In fairness, he did a commendable job of it, but that does not necessarily make it right. Whether we are in opposition or in government proposing things, we too rarely ask ourselves in the House: have we collectively got this right?
The Opposition believe that this new body—which we in government, along with the Liberal Democrats, removed—should not be brought back in. There is a better way of achieving some of the noble aims that the Government have in this regard and avoiding some of the potential catastrophes that we spoke about earlier. We therefore cannot support the schedule remaining in the Bill.
Sarah Gibson
I support the schedule. Over the past 10 years, we have seen how difficult it has been to retain and employ support staff in our schools, partly because they do not see a career progression and do not see themselves valued. I hope that this body will help to support those staff and will allow them to feel that they are very much part of the education authority and so have that support.
Laurence Turner
We have covered a huge amount of ground in this debate, so I will restrict my remarks to a few matters that have been raised. I say to the shadow Minister that if he thought that the Minister’s summary was bureaucratic and difficult to follow, he should sit through some meetings of the National Joint Council for Local Government Services, which is the dominant mode through which pay and terms and conditions are set.
It is worth reflecting briefly on some of the practical issues in schools that can be remedied through this new approach. It is a well-known problem that schoolteachers’ and school support staff’s pay award dates are misaligned. For schoolteachers, it is September; for school support staff, it is April, with the financial year. That can be a nightmare for bursars, school business managers and large employers, who have to plan their budgets with that significant difference.
In a previous life, I sat through a working group convened by the Local Government Association through the NJC on a vexed issue: how can school support staff’s work out of term-time be calculated on a term-time-only contract, because they are accumulating annual leave but cannot take all of it during term? It was a bit like a version of this Committee that reached no conclusions and never ended. These are real problems that result from the ossification of the NJC system. It is not appropriate for school support staff workers. As we all know, when a pay and grading system becomes ossified, legal danger lurks for employers in the inconsistencies that emerge.
There is no justification for saying that TA level 2 means something completely different in neighbouring authorities. That can become a block on people’s progression and ambitions to relocate. Multi-academy trusts and other academy employers overwhelmingly remain subscribed to the NJC, because this system of pay and grading, which has grown up over decades, is labyrinthine and difficult to follow, and most academy trusts do not have the HR and payroll functions to put something new in place.
We can put some figures on this. The school workforce census carried out by the Department for Education collects data on NJC coverage compared with other pay gradings. For local authority maintained schools, 80% of school support staff are paid on NJC grades, when non-responses are excluded. For academies, the figure is 77%, so there is no huge difference between the two sectors. Even among the remainder, some staff are employed under separate agreements with Soulbury terms, so are quite separate, and a high proportion—possibly even the majority—are paid on NJC-like terms and conditions, although there might be some local improvements to those pay gradings. That is the issue that the Confederation of School Trusts raised in its written evidence, and I think it has been addressed through this Committee. We are seeking to establish a floor, not a ceiling, so local improvements can still be made where employers and trade unions agree them.
The clause takes a lot from the lessons that were learned from the previous iteration of the SSSNB, which is welcome. The clauses on the adult social care negotiating body contain a general provision that any specified matter relating to employment could be referred to that body. Proposed new section 148J is drafted a bit more tightly for the SSSNB—at least, that is my reading of it—so I wonder whether there is a case for aligning the wording for the two bodies.
Let me go back to why we are doing this. School support staff are the hidden professionals in the education system. I did not just represent school support staff; I was once a school governor in a specialist SEND setting, and there were school support staff and teaching assistants. It is important to remember that the term covers site staff, cleaners, caterers and all sorts of other workers, who often do not get talked about. Those workers make lifesaving interventions—they may have to administer medicine or perform a medical intervention that literally keeps a child alive—but they are paid about £14,000 a year. That represents a failure of central Government to account for the pay, conditions and wellbeing of all the people who work in schools. The measures we are discussing are hugely important and welcome, and it is very welcome that the Bill has been brought forward this early in the Parliament.
Justin Madders
I am grateful for Members’ contributions. The shadow Minister gently joshed me about the technical detail but, as my hon. Friend the Member for Birmingham Northfield pointed out, that is the nature of the beast: it is important that all eventualities are covered. We have not reinvented the wheel here; we have lifted much of what was already in place for the previous iteration of this body, and we have taken some further learnings from that.
On my hon. Friend’s points, we have not needed to take the broader powers of the adult social care body, which we will discuss shortly, because the clauses relating to the SSSNB give it a remit to negotiate terms and conditions, as well as advise on training and career progression. That is broader than its 2009 remit, and we think it covers the areas that are recognised as those that need to be included, in addition to the powers the body had in 2009. Of course, the Bill has to be detailed—it has to be right—because it will affect 800,000 people, and a lot of people in that workforce are on low pay, have poor career prospects and are frustrated at the lack of progression in their job. When setting up such a body, it is important to cover all eventualities.
This is not a novel concept, but it is an important step forward in our industrial relations in this country, and in tackling low pay and insecurity. I am proud that we are able to discuss it today.
Question put, That the schedule, as amended, be the Third schedule to the Bill.
Greg Smith
I beg to move amendment 121, in clause 29, page 41, line 34, at end insert—
“(5A) No regulations may be made under this section before the Secretary of State has published and laid before Parliament an impact assessment of the costs on the social care sector of any proposed Adult Social Care Negotiating Body.”.
This amendment makes a requirement from the Secretary of State to undertake an impact assessment of the costs on the social care sector of any newly proposed Negotiating Body.
The Chair
With this it will be convenient to discuss amendment 122, in clause 29, page 41, line 34, at end insert—
“(5A) Regulations under this section must, for any Negotiating Body established under subsection (1), include a requirement for annual reports to be published and laid before Parliament.
(5B) Annual reports, required under subsection (5A) must include an assessment of the increased costs to the social care sector of any pay and conditions agreements made in that reporting year.”.
This amendment would require any Negotiating Body established under these regulations to publish annual reports setting out the cost of pay and conditions agreements.
Greg Smith
Amendment 121 would require the Secretary of State to undertake an impact assessment of the costs on the social care sector of any newly proposed negotiating body. Amendments 121 and 122 mirror those tabled in relation to the school support staff negotiating body that we have just spent the best part of an hour and a half debating. That is because our concern is essentially identical: that this is ideologically driven policy, not evidence-based policy.
Can the Minister provide the Committee with the evidence that the adult social care negotiating body is necessary? Has the Department of Health and Social Care made any assessment of the additional costs that may be incurred by the sector? Given that social care is provided across multiple platforms—to use a generic term—from the NHS to local government to many private sector providers, this measure will cross a number of sectors responsible for providing social care, and it is important that there is a cross-governmental impact assessment alongside it that provides a clear understanding of the costs involved to all parties, particularly local government, which is facing extraordinary pressures at the moment.
We have seen what has happened with councils such as Birmingham, which reached the point of bankruptcy, and with other councils that are under considerable financial pressure. When I speak to my council in Buckinghamshire, I hear that much of that pressure is driven by social care. It is a good problem to have; medical advances and technologies are ensuring that people have longer lives, but there is then the requirement for adult social care for far longer than was previously the case. The burden of that is falling disproportionately on local government budgets at the moment, and the Deputy Prime Minister and her Department need a clear understanding of the impact on the local government cost base.
Sarah Gibson
I rise to speak to the amendment, but I note that the whole clause is relevant. As the shadow Minister stated, this debate is fairly similar to the discussion we had about the SSSNB. Our hope for the adult social care negotiating body, similar to that for the SSSNB, is that having a uniform body can help to negotiate and address some of the issues that he highlighted, such as the poor pay and terms and conditions that a lot of adult social care workers suffer.
Social care providers in my constituency, many of which are not for profit, have welcomed the fact that the adult social care negotiating body will include providers, and that they will be able to discuss this issue together. I feel that that is an important point when discussing some of the issues that hon. Members might be concerned about. There is a suggestion that the Government might consider that some of those not-for-profit providers should be included in the negotiating body so that they have a voice.
However, several of the providers in my constituency that I have spoken to have said that, as employers who take their employees seriously and pay them properly throughout the day, they welcome the body on the grounds that it will give them a level playing field against the many employers who do not do that, since they feel that they are commercially disadvantaged against those employers. That is the predominant response that I have heard from employers in my constituency. With that in mind, I will not support the amendment and I do support the clause.
Justin Madders
The shadow Minister will not be surprised to learn that we do not support his amendments. Amendment 121 seeks to require an assessment of the impact of the new negotiating body on the adult social care sector. The Government have already produced a comprehensive set of impact assessments for the Bill, including one on the fair pay agreement for adult social care. That was published on Second Reading and was based on the best available evidence regarding the potential impact on businesses, workers and the wider economy.
The adult social care fair pay agreement will be subject to sector-wide collective bargaining and negotiation. At this stage, our impact assessment provides an illustrative analysis of its potential impact, including the magnitude of the cost to businesses, as well as the benefits for up to 1.6 million social care workers. We intend to refine that analysis over time, working closely with businesses, trade unions, academics and, of course, the Department of Health and Social Care.
As is standard practice, we will publish an enactment impact assessment once the Bill reaches Royal Assent, in line with the better regulation framework requirements. That will account for where the Bill has been amended in its passage through Parliament in such a way as to significantly change its impacts on business. That impact assessment will be published alongside the enacted legislation. In addition, the Government will produce an impact assessment to accompany regulations connected to the establishment of the negotiating body.
The Minister asked why the body is needed—what is the evidence base? He will be aware of the evidence given to the Committee, both orally and in writing, about its importance. The hon. Member for Chippenham spoke of the need for a level playing field, which is certainly a big part of what we are looking at here, because many of us will know from our experiences in our constituencies—never mind the evidence before the Committee—that, fundamentally, the adult social care sector is in desperate need of help. We have known that for a very long time, and if Members care to look at the Low Pay Commission’s recent reports, they will see that it has dedicated a considerable amount of space in them to the challenges in the sector. Trade unions, of course, have also been calling for action in this area for many years.
It is also well known that there are huge recruitment and retention challenges in the adult social care workforce. It is a very large sector, employing about 1.6 million workers, which is about 5% of all people in adult employment, and it plays an important role. The people in those roles are predominantly women and, as was noted during the evidence sessions—and backed up by the analysis in the impact assessment—there are about 130,000 vacancies at the moment. It was also noted that filled posts have reduced by 4% recently, and that the shortfall since 2022 has been plugged primarily by overseas workers, which we know is a topic of great interest.
The turnover rate in the sector is incredibly high: it has been higher than 25% since 2016 and was consistently over 30% between 2017-18 and 2022-23. There were some improvements last year, but that was largely driven by international recruitment, and the turnover rate is generally much higher than the UK average. The impact assessment notes that, while some movement is healthy, the higher rates witnessed can be disruptive and impact not only productivity, but the quality of service, with recipients of care not getting continuity. I think we can all recognise the situation in which a person in receipt of care has a different person turning up every day and how disruptive that can be. It is important to note that recipients of care, and not just the workers, will benefit from the Bill.
We know that low pay is rife, as has been identified by the Low Pay Commission. In December 2023, the average wage was £11, and nearly 70% of workers were paid within £1 of the minimum wage. In the last two reports by the Low Pay Commission, space has been dedicated to underpayment in the sector. In its latest report, the Low Pay Commission said:
“In the social care sector, non-compliance appears persistent”.
The shadow Minister asked a wider point about travel costs. He will no doubt welcome the announcement in the Budget that we are freezing fuel duty, but the cost of travel is a much broader issue than the point he raised. Clause 30 will allow broader questions of terms and conditions to be considered. Clause 39 is also important, because it deals with record keeping. We know from research by Unison that about one quarter of domiciliary care workers are repaid only for travel time, and only 18% of them have the travel time listed on their payslips. Given that these people often earn close to the minimum wage, this is an absolute scandal that needs to be addressed. The shadow Minister made an important point about travel, but we hope that the fundamentals of ensuring that people are paid for that travel time will be addressed by the negotiating body.
Let me turn to amendment 122. The Government are committed to engaging with the adult social care sector on the design of a fair pay agreement, including how the negotiating body will be set up, how it should operate and how negotiations will run. The powers under clause 29 allow for the Secretary of State to create the adult social care negotiating body by regulations and to provide for the smooth and efficient running of that body. The regulations will confirm the type of body being created. The power also allows for reporting requirements to be imposed on the negotiating body, such as producing reports. Engagement with the sector will ultimately influence the type of body that the negotiating body actually becomes. All public bodies have specific reporting requirements to meet transparency standards.
I can confirm that the Department of Health and Social Care has committed to publishing an impact assessment on establishing fair pay agreements in the adult social care sector to accompany the secondary legislation required to establish the negotiating body. It is intended that the assessment will include an analysis of the potential costs and benefits that will arise from a fair pay agreement. On that basis, I invite the shadow Minister to withdraw his amendment.
Greg Smith
I am grateful to the Minister for his remarks, and not least for acknowledging the importance of the points about just travel time and about compensation for using one’s own vehicle and having to purchase the petrol, diesel, electricity, hydrogen or whatever to get around—in a brave new world, who knows what it might be? I invite him to ensure that that can be locked into, whatever the negotiating body has the power to do. I say that not least for rural communities such as mine, where it is not unusual for someone to have to travel for half an hour between many of the villages, and from one person they are caring for to another. That adds up very quickly in terms of not just time, but the cost of the fuel to get them there and the wear and tear on the vehicle’s brakes, tyres and so on.
We will not press these amendments to a Division. However, as the Minister reflects on this issue, I urge him to again ensure that the way in which this new body will inevitably be set up accounts for the multiple different platforms of provision across local government, the private sector and the not-for-profit sector, which the hon. Member for Chippenham talked about. This is a much more complex arena than that of schools, which is much more heavily defined—we spoke about that earlier. I urge the Minister to reflect on that as he potentially brings forward Government amendments or minor surgery to the Bill ahead of Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Justin Madders
As Committee members will have noticed, this is a significant group of clauses, which relate to the establishment of a negotiating body for the adult social care sector, a key element of the Government’s plan to make work pay. The body aims to address the long-term issues of low pay and poor retention in the adult social care sector.
The adult social care sector is large, with 1.59 million people working for it in England in 2023-24, which as I have already said is equivalent to 5% of all adults in employment. Poor terms and conditions are associated with higher staff turnover. For example, the Skills for Care annual report states that care workers were less likely to leave their posts if their employers paid above the 3% auto-enrolment rate for pensions, or paid more than statutory sick pay if care workers could not work due to illness. This is a key element of the Bill.
I will speak to each clause in turn. Clause 29 gives the Secretary of State the power to create the adult social care negotiating body by regulations, with the aim of negotiating a fair pay agreement within the adult social care sector. Giving specific powers to the Secretary of State in relation to the body is key to ensuring that the Government have the necessary powers to set up and design this body, and that will take place after engagement with the sector.
The clause ensures that the Secretary of State has the power to create a body that is appropriately made up of members including representatives from relevant trade unions and employers. It also enables regulations to provide for the smooth and efficient running of the body, and for it to be subject to reporting requirements. The Secretary of State will have the power to set out the body’s decision-making process and to make provision for any staff and facilities and for payment of fees and expenses.
Clause 30 defines the matters within the negotiating body’s remit—namely, the remuneration and other terms and conditions of employment of social care workers. The clause enables the body to cover not only pay, but wider terms and conditions of employment of adult social care workers.
We know that the adult social care sector is diverse, so the clause also allows the Secretary of State to add further matters to the remit of the body, provided they relate to a social care worker’s employment. The remit of the body can also be narrowed by the Secretary of State, who has the power to specify in regulations the types of social care worker that fall within the remit of the body.
Members will see that clause 31 defines “social care worker” as including those who work in, or are employed in connection with the provision of, adult social care. The clause specifically excludes from the definition of adult social care anything provided by an establishment or agency regulated by His Majesty’s chief inspector of education, children’s services and skills, to ensure that children’s services are not captured. The clause provides an essential definition of adult social care worker, which the other clauses refer to throughout. Without it, the remit of the body and the scope of the clauses would not be sufficiently defined.
Clause 32 sets out the power of the Secretary of State to make provision in regulations about the consideration by the negotiating body of matters within its remit. In accordance with regulations made under the clause, the Secretary of State will be able to specify conditions that any agreement must meet, such as on funding. It also allows regulations to provide that the body may consider only matters referred to it by the Secretary of State, such as specific terms and conditions for certain types of social care worker, and must take into account specified factors when coming to an agreement.
The regulations that can be made under clause 32 can impose information-sharing duties on the body’s members to enable efficient negotiation and require the body to submit any agreement to the Secretary of State for consideration. They also allow for the body to be allocated clear deadlines for discussion, so as not to delay this important process.
Clause 33 enables regulations to provide that the Secretary of State can refer agreements back to the negotiating body for reconsideration. Making provision for reconsideration of an agreement ensures that any agreement can be refined following review by the Secretary of State and that the Government are not forced to reject an agreement they are unable to implement. It also provides the Secretary of State with an appropriate safeguard to ensure that further work can be done, where necessary, to ensure that a suitable agreement is reached. The Secretary of State can also make regulations that provide for the same matters listed in clause 32.
Clause 34 allows the Secretary of State to make provision in regulations for circumstances where the negotiating body is unable to reach an agreement. Providing a clear process for the body to resolve roadblocks in reaching an agreement is key to ensuring that the body arrives at a conclusion that is agreeable to all parties. In regulations made under this clause, the Secretary of State will have the power to appoint someone to resolve the barriers to an agreement and confer the relevant dispute resolution powers on them.
Clause 35 allows the Secretary of State to ratify an agreement made by the negotiating body and thereby give it legal effect. That is essential to successful implementation and ensures that any agreement provides the maximum protection for affected workers. It allows for sufficient flexibility, because the Secretary of State can ratify part of an agreement, such as implementing some aspects through employment contracts, while leaving others that would be more appropriately implemented through codes of practice.
The regulations may have a retrospective effect, as outlined under clause 41. That is necessary to enable regulations to appropriately fill any gap between, for example, the body reaching an agreement and the subsequent regulations ratifying that agreement, and could be used to backdate a pay rise to the date previously agreed by the body. However, the retrospective effect is limited by appropriate safeguards: regulations cannot make provision that reduces remuneration or alters conditions of employment to a person’s detriment, in respect of a period before the date on which regulations are made.
Clause 36 explains that the effect of ratifying an agreement under clause 35 is to change the employment contracts of adult social care workers included in the scope of the agreement. The ratification regulations can change both the remuneration and the terms and conditions of employment contracts, depending on the content of the fair pay agreement. They also give precedence to the terms in ratified agreements over inconsistent terms in existing employment contracts. For example, if an agreement sets a new minimum hourly rate, that will take precedence over employment contracts that set out a lower rate, and so ensure that the employee enjoys the rate set out in the ratified agreement. The clause is essential to ensuring that any ratified agreement will be on a statutory footing and therefore legally implemented.
Clause 37 gives the Secretary of State the power to make provision in regulations when the body has notified the Secretary of State that it has been unable to reach an agreement. The Secretary of State’s powers under this clause are limited to those matters on which the body has failed to reach an agreement. The powers under the clause are similar to those in clause 35, and enable regulations to override the pay and other terms and conditions set out in social care workers’ contracts.
As under clause 35, the regulations may have a retrospective effect, as outlined under clause 41. That is necessary to enable regulations to appropriately fill any gap between, for example, the body reaching an agreement and the subsequent regulations ratifying that agreement, and could be used to backdate a pay rise to the date previously agreed by the body. However, the retrospective effect is limited by appropriate safeguards: regulations cannot make provision that reduces remuneration or alters conditions of employment to a person’s detriment, in respect of a period before the day on which regulations are made.
Clause 38 gives the Secretary of State the power to make regulations about the creation of guidance or codes of practice in relation to the agreements reached by the body. The clause also enables regulations to impose duties on specific persons in relation to provision in guidance or a code of practice, and makes provision around the consequences of failing to comply with those duties, including increased financial awards in any later court or tribunal proceedings. That will ensure that any pieces of guidance or codes of practice are appropriately followed, with appropriate consequences for parties that fail to comply.
Clause 39 gives the Secretary of State the power to make regulations imposing record-keeping obligations on employers. Similar provisions already exist for enforcing other aspects of employment law, such as the national minimum wage and the working time regulations. The clause therefore gives the power to apply the provisions under the National Minimum Wage Act 1998, to give social care workers a right of access to records. There may be new requirements under a ratified agreement that are not covered by existing record-keeping obligations, and without this clause the employer may not be able to provide evidence to enforcement authorities that the new requirements are being followed. We expect the fair work agency, upon its creation, to take on responsibility for the enforcement of the national minimum wage, including those record-keeping requirements.
Clause 40 will give the Secretary of State the power to make regulations about the enforcement of remuneration terms in ratified fair pay agreements. These regulations can apply enforcement mechanisms used under the National Minimum Wage Act 1998, notably the notices of underpayment regime, and the clause lists specific sections of that Act in relation to enforcement. We do not intend to introduce any criminal sanctions to enforce the fair pay agreement framework. That will ensure that any pay terms can be appropriately enforced by the state, ensuring that employees are effectively paid under the conditions of a ratified agreement. The clause also prevents double recovery of remuneration, ensuring that enforcement cannot take place twice—once for the national minimum wage and again for a ratified fair pay agreement—in respect of the same work.
Clause 41 gives the Secretary of State the power to create regulations under clauses 35 and 37 that have retrospective effect. As we have set out previously, that is to ensure that provision in terms of pay and conditions that falls after an agreement is reached and before the day on which regulations are made can have retrospective effect. That is necessary to enable regulations to appropriately fill any gap between the body reaching agreement and subsequent regulations being passed to ratify that agreement. Subsections (3) and (4) ensure transparency, creating an obligation to publish documents, such as the ratified agreement, that are referred to in the regulations.
Clause 42 makes further provision about the regulations that can be made under the powers in this chapter. These provisions are non-controversial, and they include the option for regulations to confer discretion on a person. That may be needed, for example, to give the chair of the body discretion to deal with a matter during the negotiation process or to give a third party discretion to resolve a dispute in accordance with the regulations under clause 34. Subsections (2) and (3) provide that ratification regulations will be subject to the negative resolution procedure, and any other regulations made under this chapter will be subject to the affirmative resolution procedure. That is because ratification relates to an agreement that has been reached by the negotiating body and assessed by the Secretary of State as being appropriate for ratification, and it would not be necessary to subject the ratification regulations to detailed parliamentary scrutiny.
Clause 43 simply allows regulations to provide that any actions or agreement by the body would not constitute collective bargaining or a collective agreement as defined in the Trade Union and Labour Relations (Consolidation) Act 1992. The Government have taken that approach because these clauses, and the regulations made under them, will create a new, separate legal framework under which fair pay agreements in the adult social care sector will be negotiated. For example, the clauses provide for a fair pay agreement to apply across the entire sector and to be legally binding when it is ratified in regulations.
That goes further than the 1992 Act, which sets different requirements for collective agreements to be legally binding and envisages that collective bargaining will be on a much smaller scale between one or more recognised trade unions and one or more employers or employer associations. The Government’s intention is very much for the negotiating body’s activities to be a form of collective bargaining, as a concept. It is simply that we cannot have two different legal frameworks to the same process.
Clause 44 is uncontroversial. It simply provides definitions for the terms used in this chapter and ensures that the definition of worker’s contract can cover agency workers who might not have a contract with their agent or the person they have been supplied to work for. That ensures that an agreement can be ratified for agency workers who do not have a contract with the agent or principal. The clause clarifies that references to a ratified agreement may also include references to parts of an agreement that have been ratified.
I am confident of the Government’s ability to deliver this flagship policy, supported by the Health Foundation, which indicated the strong case for improving pay and conditions in the social care sector in its written evidence to the Committee. Indeed, the same thing was noted in much of the evidence that we have heard in support of these measures. I commend clauses 29 to 44 to the Committee.
Greg Smith
As we prepare to begin the 12 days of Christmas, we have the 16 clauses of the adult social care negotiating body. I am not sure which has the better ring to it, but I think only one ends with a partridge in a pear tree.
I have a few questions for the Minister after his impressive run-through of the 16 clauses. I might not have agreed with every word he said, but we have to acknowledge a powerful performance, and he went through such technical detail with such speed. In clause 29, yet again we have the powers to set up a body but only after engaging the sector. There is nothing wrong with engaging the sector, and we encourage regular engagement with any and every sector, but this is yet another example in the Bill of legislate first, consult second. That is always a concern whenever it comes up, and not least on clause 41, where the Minister repeatedly referred to certain retrospective powers.
Alison Hume (Scarborough and Whitby) (Lab)
It is a pleasure to serve with you in the Chair once again, Ms Vaz. I remind the Committee about my membership of Unison.
We all want to live in a place we can call home, with people and things we love, in communities where we look out for one another and do the things that matter to us. Adult social carers support millions of people every day in that. The shadow Minister rightly spoke about the vital contribution made by social work carers who go to support people in their own homes, but there are other carers who support people who have highly complex needs to live in specialised settings. One of those people is my adult son, who has been in supported living for the last six years. It took a while to find him the right setting, but he is now living in a specialised service that accommodates people who have a diagnosis of autism spectrum disorder, and I am pleased to say that he is thriving.
Members of the Committee may be aware that one of the defining characteristics of ASD is how neurodivergent people relate to, and connect with, the people who care for them. My son sees his carers as being part of an extended circle of trust—not family, but close. After all, why shouldn’t he? They support him with all his daily living needs. They plan his meals, accompany him to the shops to buy food, help him to cook it and keep him company while he eats it. They help him to do all the chores that any 26-year-old young man would rather not do at all. But far more importantly, the staff who care for my son help him in all aspects of his life so that he can achieve the best he can, whether through volunteering to build up his confidence or through educational opportunities to improve his prospects of work.
Many of these staff are highly skilled. I cannot speak highly enough of the work they do. They have worked in adult social care for many years and are dedicated to the people they care for, like my son, but others are new in the job and do not stay long. That is not as a result of not wanting to do the job, but of not being able to afford to stay in the job. In fact, some carers live in poverty. For young adults like my son, the turnover and lack of consistency in staff, which is no fault of the organisation that employs them, means that his extended circles of trust are continually broken down. That leads to a lack of engagement, which affects his mental health and wellbeing.
I wanted to talk about my lived experience to shed light on why the adult social care negotiating body and the whole Bill are so important, because we so need a step change in our attitude to social care. We must respect the work that social care workers do and value it more highly. Three quarters of those who work in the industry are women, and they earn around only 68% of the median salary for all UK employees. It is just not good enough. I welcome the negotiating body, which I believe will be a game changer in addressing low pay and insecure employment. It will send a powerful message to the 1.59 million social care workers in England to say, “You are valued, you are respected and you are part of a profession that I am proud to say the new Government are committed to supporting in the long term.”
Sarah Gibson
I start by thanking the hon. Member for Scarborough and Whitby for that very personal story. I imagine it has been extremely difficult. She must be very relieved to have finally found somewhere where her son is happy. I have several friends with children in similar situations. I know that it can be extremely stressful.
We are all in agreement that people working in social care have been undervalued for a long time. These provisions are incredibly helpful in bringing them to the fore and in trying to make their conditions of work considerably better. Members on both sides of the Committee have made that point very clearly.
I have one specific concern, which is on clause 41, where it talks about
“provision that has retrospective effect.”
Like the hon. Member for Mid Buckinghamshire, I find the word retrospective in any legislation extremely worrying. My background is in the building industry, and that retrospective element has been introduced many times in the 20 years that I have been in the building industry, to the detriment of many of the hard-working professionals involved.
This clause concerns me because many of our care-provider employers are small businesses, and they are also not-for-profit small businesses. Those small businesses will be in no position whatsoever to provide any retrospective increase in salary if they are asked to do so, because they simply do not have any profits—because they are not for profit—to draw on to pay any increase. I am very concerned that if subsequent legislation were to introduce a retrospective pay increase that these firms do not have provision for, that would detrimentally affect some of these hard-working and useful not-for-profit care providers. As it stands, I will not be able to support that clause.
Justin Madders
I will deal with the point raised by the Liberal Democrat spokesperson and the shadow Minister first. This measure is about the practicality of negotiations. Clause 41 is not trying to say that the body will reach back in time to change workers’ terms and conditions; it is about the fair pay body agreeing terms and conditions, and the period between that agreement being reached and it then being ratified and passed in regulations by the Secretary of State.
For example, if the body said that from 1 April 2028, for argument’s sake, there would be an uplift of whatever pence or pounds an hour to everyone’s pay, and if the regulations enacting that were not passed until July of that year, the retrospectivity would be from July 2028 back to 1 April, so that pay can be included. That is normal in pay negotiations. That is all it is; it is not about trying to unpick previous agreements; it is about the way that anything agreed is implemented.
The shadow Minister said that we legislate first and consult second. As he will be aware, introducing a fair pay agreement in such a huge area of employment in this country is a novel and groundbreaking introduction to our legal system, so we need to put the legislative framework in place, which is what the Bill does. The detail and how it will work in practice is what the consultation and the secondary legislation will deal with. That is the proper way to do this, and that is how we will get this right. The Government are absolutely committed to getting this right. We absolutely recognise the terrible pay and conditions that lots of people in the adult social care sector face and the need for this kind of body to try and drive out those poor practices.
The shadow Minister asked about clause 33 and the ability of the Secretary of State to refer matters back to the negotiating body. He will of course understand that as the Bill is currently drafted the Secretary of State will need to pass regulations in order to enact many of the recommendations from the body. Some will be guidance, but that will still need the Secretary of State’s involvement. It simply would not be tenable for the Secretary of State to be compelled to pass legislation with which they did not agree, so I am sure that the shadow Minister will appreciate why that is in the Bill. We hope that that does not come to pass—it would clearly not be in the spirit of what we are trying to achieve—but we have no way of knowing what the future holds in that respect. It is therefore important for the Secretary of State, who is the person responsible for this system, to have the final say on such matters.
Greg Smith
I took careful notes, and we can check Hansard later, but I am pretty certain that the Minister himself used the word sufficient in his remarks.
Justin Madders
We may have to write to the hon. Member on that. Having furiously double-checked clause 32 during the other hon. Members’ speeches, I cannot find the word sufficient.
My final point relates to the powerful contribution from my hon. Friend the Member for Scarborough and Whitby about her personal circumstances and how important it is that we get this right. It is people such as her son who have benefited from good support in social care, and at the end of the day, they are the people who will benefit from stability and security in the workforce and better retention rates. This is about the workforce, but it is also about the people who receive the care, and it is about time that we gave them more priority. That is why these clauses are so important, and I therefore commend them to the Committee.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clauses 30 to 44 ordered to stand part of the Bill.
The Chair
Before I call the Whip to move the Adjournment, I wish everybody a very happy Christmas and a happy new year.
Justin Madders
On a point of order, Ms Vaz. I thank all those who have worked behind the scenes—the Clerks and other staff—to ensure that the Committee has run smoothly. We have had some very interesting debates and made good progress with the Bill. I wish everyone involved a very merry Christmas and a happy new year. No doubt we will see many of them in January.
Greg Smith
Further to that point of order, Ms Vaz. I seek your guidance on how we might put it on the record that we wish a very merry Christmas to everyone involved in this Bill Committee. I might not agree with every word of the Bill, but I appreciate all the work that the civil servants put into supporting the Minister and the Government—and, likewise, for the Opposition, the hard work of all the Clerks, as well as Hansard, the Doorkeepers and security. I wish Members of all parties a very merry Christmas.
The Chair
Thank you, and thank you to all hon. and right hon. Members, the officials and the Clerks, who have been very supportive.
Ordered, That further consideration be now adjourned. —(Anna McMorrin.)