Education Bill

Baroness Hughes of Stretford Excerpts

Wednesday 26th October 2011 Lords Chamber

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, after our discussions about admissions on Monday, I move to a number of government amendments which achieve two important things. The first introduces an important new clause that makes it possible for anyone to object to a school’s admission arrangements by referring an objection to the office of the schools adjudicator. His duty to consider all concerns that are raised to him in this way remains. This new clause builds on Clause 62, which extends the adjudicator’s remit to include all academies and free schools so that admissions to all state-funded schools will be covered by the same organisation. Our other amendments relate to the issue we discussed on Monday about national oversight of and accountability for the admissions system. Our Clause 34 would have removed a duty on local authorities to send their annual report on admissions in their area to the adjudicator. This is because in the statutory code we are placing that duty on local authorities to report locally to local people.

However, during Committee I listened with care to noble Lords’ concerns about the adjudicator not getting these reports to help flesh out his and the Secretary of State’s national picture on admissions. Noble Lords were worried that, without these reports, the adjudicator would see admissions only where things have gone wrong or might have gone wrong whereas these reports also set out the areas where things are going right, which is the vast majority. Noble Lords were concerned that this would remove a thread of accountability running from schools through local authorities through the adjudicator to the Secretary of State, which was not our intention. So we are addressing that concern with Amendments 64 to 67. They place a duty on local authorities to send their reports to the adjudicator in addition to being published locally. This will ensure his national oversight and he will continue to be able to take these reports into account when deciding whether to investigate a school’s admission arrangements. I hope that noble Lords will agree that our moves on admissions are aimed at achieving and promoting fair access and that these amendments will help achieve that end. I beg to move.

[Baroness Hughes of Stretford]

My Lords, I am grateful to the Minister for responding to my letter about these amendments and for the Keeling schedule which helps us to understand the impact of these further amendments. I welcome the moves that he has made and those new measures that he has just described. However, I would welcome clarification on two points before we get to Third Reading. In his letter to me in relation to my query about possibly seeing the draft regulations relating to these measures, the Minister says he believes that the admissions code should be the prime document and that regulations merely reflect the code rather than being a separate source of guidance. But the measures, even as amended in the School Standards and Framework Act 1998, provide for regulations which may make provision,

“as to any conditions which must be satisfied before … an objection can be referred to the adjudicator under subsection (2) or … the adjudicator is required to determine an objection referred to him”.

I understand that to mean that, in addition to the admissions code, which will not go into such matters, any regulations coming forward can stipulate conditions that parents or, as the Minister said, any person or body—including the local authority— must meet before making an objection to a school’s admissions procedure. As we have not seen the draft regulations, we have no idea of the conditions that the Government may be thinking of imposing. They could create additional hurdles for people to overcome before they can avail themselves of the opportunities to object to admission authorities’ policy and practices that the government amendments have created for them. Perhaps the Minister could clarify that my understanding is correct and, if so, what conditions the Government may be thinking of including in regulations. It is important that we have an idea of those before this matter is decided.

--- Later in debate ---

[Lord Hill of Oareford]

My Lords, it remains our intention to bring the new codes into force from February 2012. While there is no legal requirement for us to publish a further draft of the code, we intend to do so as quickly as possible, with a planned date of 31 October. Alongside those draft codes, we expect to publish draft regulations and to consult on them for four weeks ahead of laying the codes formally before Parliament on 1 December. I would be very happy to share a set of the draft regulations with the noble Baroness so that she can see them in good time.

[Baroness Hughes of Stretford]

Is it possible to see those draft regulations before Third Reading so that that issue is clarified before the Bill is finally disposed of?

[Lord Hill of Oareford]

I understand the point. Let me check where we have got to on the draft regulations and come back to the noble Baroness, if I may.

To clarify the point about binding the judgment of the adjudicator and what happens if the admissions authority does not do what the adjudicator says, the judgment of the adjudicator is final and legally binding. It cannot be ignored. The school or local authority must implement that decision without undue delay or find itself in breach of the statutory duty to have admissions arrangements compliant with the code. If they fail to do that, they risk judicial review or direction by the Secretary of State.

So the adjudicator’s ruling is binding. The difference is that instead of the current situation whereby the adjudicator specifies how the admissions authority must change its arrangements to comply with his ruling, his ruling will still be binding and it will be the duty of the admissions authority to comply with his ruling and change their admissions arrangements to make sure that they are compliant.

I take the point raised by the two noble Lords about vexatious complaints. We are proposing to put in place a couple of safeguards. First, the adjudicator would not have to reconsider his decision if someone were putting in repeated allegations and accusations on which he had already decided. Secondly, we are making it clear that there cannot be anonymous allegations of that sort to try to ensure that the system works properly.

--- Later in debate ---

Moved by

[Baroness Hughes of Stretford]

70A: Clause 36, page 34, leave out line 20 and insert—
“(1) Where a new school is to be established there should be local determination as to the appropriate category of new school, based on a local assessment of need and local consultation, including with parents and the local authority.
(2) The category of the new school shall not be presumed prior to the assessment of need and consultation with parents in subsection (1).
(3) The Secretary of State shall not provide a funding incentive which supports one category of school over another.”

[Baroness Hughes of Stretford]

My Lords, Clause 36 introduces a new presumption that every new school in the future will be an academy. The clause further restricts the power of local authorities to determine what is the most appropriate type of school when a new school is needed. Under the clause, before publishing proposals for a competition for the establishment of a new school, the local authority must obtain the consent of the Secretary of State.

The clause also enables the Secretary of State or the local authority with the consent of the Secretary of State to halt such a competition at an early first stage before the closing date for proposals to be submitted. The clause means that academy proposals in that process will no longer need to be submitted to local authorities for approval but will instead be referred directly to the Secretary of State for him to decide if he wishes to enter into academy arrangements with the proposer. The clause places a duty on local authorities to seek proposals for the establishment of an academy if a new school is needed, not any other type of school. It specifically denies the local authority the ability to publish any of its own proposals for a new foundation or community school in a Section 7 competition.

The Government's proposals essentially do three things. First, if a new school is needed in an area, they skew the whole process massively so that academies have an immediate head start over other types of school through this presumption, which will be enshrined in law. Secondly, they mean that a local community school is possible only as a last resort when all other options have been exhausted. Thirdly, they limit the role of the local authority and parents to have a say in the type of school, according to local need and the best fit with the local school system. At the very least, this appears to fly in the face of the localism agenda that the Government appear to be promoting elsewhere, but also it seems wrong in principle. Clause 36, with the presumption in favour of academies for every new school, gets to the very heart of the Government’s intentions and presents the most profound change and challenge to our education system.

As we have noted before, the Government’s vision is that eventually every school should be an academy. This clause will apply to primary schools, secondary schools, special schools, every kind of school—all schools as academies with power to determine their own admissions, and no formal links with local authorities or other schools. It is Death by default of local community schools leading potentially to thousands of atomised schools all linked, in theory, to the Secretary of State though in practice the Secretary of State and his officials could not possibly manage effectively so many relationships. Therefore schools will, to all intents and purposes, be free floating. The significance of Clause 36 cannot be overstated.

Amendments 70A and 73A seek simply to create a level playing field. Amendment 70A would mean that where a new school needs to be established, there should be local determination as to the category of school based on an assessment of local need and consultation, including with parents; that the category or type of new school would not be presumed prior to that consultation and assessment; and that the Secretary of State shall not provide any funding incentive which supports one category of school over another. Amendment 73A would consequently remove Schedule 12 to the Bill.

When this was discussed in Grand Committee, the Minister told us that the provisions do not mean that every new school would be an academy, but as the Bill stands any proposal for a new school would go forward only if a satisfactory academy solution could not be found. In that situation, the local authority would then be required by the Secretary of State to run a competition that includes the possibility of different kinds of schools. It is only if the second stage of the process fails that the local authority could bring forward proposals for a community school. The dice are loaded heavily in favour of academies and against local community schools, which can go forward only as a last resort. Our amendments would remove that presumption, restore neutrality between the appropriateness of different kinds of schools for different situations, and allow the decision to be made locally on the basis of what is best for the children and families in that area.

The presumption also seems to restrict parental choice, both in the decision about the type of school needed and in moving, in time, to one type of school only—the academy. The Government profess to be in favour of parental choice. Nick Gibb in the other place said that the intention behind Schedule 12 is,

“to increase parental choice by diversifying provisions and ensuring that parents have a genuine choice of school to which they send their children”.—[Official Report, Commons, Education Bill Committee 29/3/11; col. 790.]

It is difficult to see how these proposals succeed in that objective. By contrast, our amendments would put parents at the centre of decision-making and thereby ensure a wider range of types of school—more diversity in the system—by not presuming there is a one-size-fits-all solution, the academy. This seems to us to be a more mature approach and a fairer approach, opening up all options equally for local people to consider.

I hope that these amendments will be given the support of the House, particularly from those noble Lords across all Benches who, while open to the potential of academies to improve standards—as indeed I am and my colleagues are—do not believe that academies are necessarily the best and the only solution in every situation, and who want to see local involvement in decisions about new schools. I beg to move.

--- Later in debate ---

A trend towards greater school autonomy has been a common thread running through the education reform led by both Governments in recent years. Clause 36 and Schedule 11 seek to continue that trend as well as to reduce unnecessary bureaucracy. I ask the noble Baroness, Lady Hughes of Stretford, to withdraw her amendment.

[Baroness Hughes of Stretford]

My Lords, I thank the Minister for his response and noble Lords for their contributions to this debate. In response, I shall touch on some of the points made.

The amendments tabled by the noble Lord, Lord Avebury, and my noble friend Lady Massey and the contributions from the noble Lord, Lord Alton, and the right reverend Prelate relate to the number of places in denominational schools for children who are predominantly—although, as was said, not exclusively—from families of faith. I understand and respect the fact that that is a very important issue for people of faith, as, indeed, it is for those of none. I do not want to go down the route of debating that issue except to acknowledge that I have heard both sides of that debate. The main thrust of the amendment is potentially relevant to all new schools in the future, and therefore to a much wider group of children. I therefore want to focus on the presumption.

Correct me if I am wrong, but I think that I have discerned that the principles of local determination on these matters and of retaining a wide diversity of schools in a locality—a balance, as my noble friend Lady Turner said—are shared and supported on both sides of the debate. I therefore hope that both sides will support my amendment as my noble friend Lord Touhig has correctly identified it.

As for the amendments tabled by the noble Baroness, Lady Walmsley, although I very much welcome her support for local involvement in decision-making on local schools, I do not feel that her amendments go far enough. She is not seeking to delete paragraph 6(1) from Schedule 11, which enshrines the presumption that where a new school is needed the local authority,

“must seek proposals for the establishment of an Academy”.

That is the core of Clause 36, to which we object. Given the resolution on academies at her party's most recent conference, it is somewhat surprising that the Front Bench here is apparently prepared to support a presumption in favour of academies. I do not support her amendment because it still does not challenge that presumption.

In response to the Minister I would say, as I am sure he would expect, that there is no divide at all between us on the desire to raise standards in schools, to increase opportunities for children—particularly those whose start in life has been more disadvantaged—and to achieve diversity of school provision. I take issue somewhat with his claim that the Government are merely extending the Labour Government’s policies on academies. The language used by the current Government may be similar but the scale of their intentions make this policy, and its outcome for the system of education in this country as a whole, qualitatively very different indeed.

I agree as well that, in the beginning of our embarking on the road of academies in disadvantaged areas, some local authorities were resistant to the idea. But things have moved on. The Labour Government in particular demonstrated that, by selective targeting of academies in the most disadvantaged areas, standards in those places and for those children could rise substantially. It is a very different matter for the current Government to propose to enshrine in law a presumption that every new school in the future should be an academy, with community schools only as a last resort.

It is also a very different proposition to say there should be a presumption that every school is able to become an academy regardless of whether it is equipped to handle the greater autonomy that such status brings. Although we on this side support academies in principle, the principles of local determination and a diversity of provision from which parents can choose are more important. We are not convinced by the Government’s argument. It is, by anybody’s standards, a step too far to enshrine this presumption in law. I wish to test the opinion of the House.

--- Later in debate ---

[Baroness Hughes of Stretford]

My Lords, I welcome the affirmative resolution procedure introduced by Amendment 74, which will mean that Parliament will have to consider any further proposals by the Government to change and particularly to extend the exemption from inspections for any other categories of school. That is a bottom-line issue and I am pleased to see that the Government have brought forward those amendments. However, and we will go on to debate this in the next group, the principle of exempting any public service from the possibility of inspection in the future is a principle that we cannot support. Risk assessment and proportionality is one thing—for a long time it has been the approach adopted by Ofsted and supported, as it has developed, by successive Ministers including myself and my predecessors in the previous Government —but exemption, potentially for ever, even for a school judged to be outstanding is quite another.

Do the Government intend to exempt, for example, excellent hospitals from further inspections? What about excellent nursing homes or care homes for the elderly? I suspect not, because the Health Secretary announced today increases in the inspection of hospitals, including no-notice inspections, of which I entirely approve and think there should be more of in relation to schools as well.

I note in the Minister’s response to the Committee and in his letter to me, which my noble friend Lady Morgan has outlined, the actions that he has agreed Ofsted will take in relation to outstanding schools if this measure is approved. They will try to minimise the dangers—there are dangers, not just to safeguarding but to educational standards—that could arise from the government decision wholly to exempt such schools from inspection.

--- Later in debate ---

[Lord Hill of Oareford]

My Lords, let me respond briefly to the specific point about safeguarding raised by my noble friend Lady Walmsley, which I think the noble Baroness, Lady Morgan of Huyton, alluded to. I can confirm that the thematic survey of safeguarding will take place and will be used to inform the judgments that we make going forward about that important issue.

I turn to the core point made by the noble Baroness, Lady Hughes of Stretford, about the thinking behind the Government’s approach. I recognise the points of view that she put across: wanting a more proportionate approach based on having far more data about how schools are doing generally and publishing those so that parents can see the whole time how the school is doing, but having the position that if schools are performing well—delivering what parents want, delivering strong results—we need not make them be inspected in the same way as all other schools.

[Baroness Hughes of Stretford]

Just while the Minister is on that point, would he concede my main point, which is that it is not necessary to exempt outstanding schools from inspection in law in order to have the different, proportionate approach that he talks about?

[Lord Hill of Oareford]

The reason why we are making this change and doing it now is because we are putting on a statutory basis the approach that we want. That is why we are doing it. In practice, the vast majority of secondary schools will be inspected through a thematic survey visit over a five-year period. The risk assessment arrangements will trigger inspections. The starting point is that we think it builds on the principle of proportionality that already exists in inspections. With these increased safeguards in place, and I am grateful to noble Lords who have encouraged us to strengthen those and look at this again, we think that it will deliver a proportionate and effective system.

--- Later in debate ---

[Lord Lucas]

My Lords, I add my voice to those who have already spoken. I am greatly saddened by this Government’s attitude to inspection, which seems to me to be coloured by too many years in opposition listening to schools complaining about inspection. Indeed, inspection under the previous Government was not generally taking a constructive turn, but then, we had not constructed it in a constructive way ourselves previously. I had hoped that this Government would go back to first principles and ask what inspection is for. If you start by saying that it is to make sure that our children are receiving the best possible education, then you need a system which is much faster to react than the current one. It can take Ofsted three years to pick up that a school is going wrong, because their data are always backward-looking and they always want two years of that before they believe that there is any trend in place. So in the schools that I have seen and known to have gone wrong, it has been the third year or the beginning of the fourth when Ofsted have come to call and by then, a lot of children’s educations have been harmed. I would have been looking to produce something which was much faster to react, rather than something which is going to be slower to react.

To pick up the point made by the noble Baroness, Lady Morris of Yardley, and the noble Lord, Lord Quirk, it is essential that inspectors, the people who are seeing a lot of schools, see the very best. The point about the best schools is that they are utterly surprising and jaw-dropping when you see them: you could not believe that what they are doing could be done. When you have seen it, you start to understand how other schools could do it too, but if you have not seen it, you just do not know; you just accept that the ordinary way of doing things is sufficient, that the platitudes that, “We are doing well by our children here” are right, because it is okay by the current average, rather than being anywhere near the potential of the children. When you see the difference that a really good school can make, you understand that there is a long way to go; not that schools are bad at the moment, but that the good schools can be a great deal better than they are. That understanding comes from going round outstanding schools and being able, as the noble Baroness, Lady Morris, said, to set your yardstick on the basis of what you know can be achieved with children like these in a school that really understands how to deal with them.

We do not have that; we have something that goes backwards. We have a decision to remove outstanding schools from the purview of Ofsted. However, things change. I came across a school by chance the other day—Glenthorne in Sutton. It is sprouting all sorts of new initiatives. You can study three A-levels and golf, as well as tennis and football, to a professional standard. It is great to see these initiatives but no one will take a look at them. No one will know whether they are going right or being balanced correctly. It will be three years before anything shows in the figures. However, a good, experienced head, going around six months into the project, would know whether it was going right. To think that you can do this by remote control—that we are looking after the future of our children by stepping back in this way—is a profound misconception. I am afraid I despair of changing the Government’s mind at the moment, but give it a year or two, let an outstanding school or two crash, and then we will think about it again.

[Baroness Hughes of Stretford]

My Lords, I cannot improve on the contributions that we have heard from my noble friends and the noble Lords, Lord Quirk and Lord Lucas. I just want to add a few more points to the debate.

The first is one of principle. I believe strongly that not just the Government but we in this House and the other place are guardians of the public when they use public services. We have to take very seriously the arrangements we make to ensure the safety as well as the standards of those services. Secondly, as we have seen, the possibility of an inspection in any public service is not a guarantee of high standards. However, the certainty of no inspection surely means a huge risk of declining standards and, in this case, a risk to children. Thirdly, our experience in other sectors, particularly in health and social care recently, shows that pulling back too far on inspection has led to serious risk to patients and older people. Fourthly, there is the point that I made in my previous contribution, which, with respect, I do not think the Minister answered fully. Exempting outstanding schools completely is not necessary in order for them to have a qualitatively different inspection regime. We should keep them in the framework of inspection.

My noble friend Lady Morris asked the Minister to take a deep breath and think again about his position and responsibilities. I ask noble Lords also to think from the point of view of a parent of a child at a school, with which they may well be very happy as an outstanding school. However, they would not be happy to know that it would never be inspected again. A further point is that when parents are looking for a school for their children, they look not only at a school’s results but on the internet for Ofsted reports. In this instance, a few years down the line there will be no up-to-date Ofsted reports for those parents who are looking for a school to examine. They will not know the difference between the school as it was when it was outstanding and the school as it is further down the line. On this issue we all have a responsibility to consider all the points made, particularly the dangers inherent in this approach, and whether we are happy to support them.