Education Bill
Baroness Hughes of Stretford Excerpts(12 years, 7 months ago)
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Baroness Benjamin
My Lords, further to what the noble Lord, Lord Ramsbotham, said, I would like to add play therapy to his list. Qualified play specialists who can work with the child and the parent—especially those having difficulties in relationships and attachment—really work. I have seen the results of that type of therapy, which is quite remarkable. I would like the Minister to take that into consideration when he is looking at this amendment.
Baroness Hughes of Stretford
My Lords, I shall make a few brief comments on these amendments. I start by commending the noble Lord, Lord Northbourne, who never misses an opportunity to raise the issue of parenting. I am terribly grateful that he does so because, with so many weighty matters often before this House, it is sometimes difficult to get those issues heard.
The noble Lord and other noble Lords, including the noble Lord, Lord Storey, and the noble Earl, Lord Listowel, were right when they said that we cannot overstate the importance of having good parents and the disadvantage to children when parents for one reason or another do not understand what good parenting is. For me, that involves having good involved fathers as well as mothers, as the noble Lord’s amendments make clear. Too often in our discourse about this, the default position is mothers, and we forget about fathers. As Minister for Children for four years, that was something I was very concerned about.
The point made by the noble Lord, Lord Eden, about communication from birth is profoundly important. Communication is the basis of good parenting because the enrichment children get from that kind of elaborative language, play, song and stories literally helps the brain to grow and helps the conceptual abilities of children to develop as well as helping with bonding.
I do not share some noble Lords’ opinion that somehow there has been a failure of moral fibre among the population and that today’s parents perhaps no longer care as much as our parents did. There have been changes, but some of those changes are due to changing social circumstances. The lack of proximity of grandmothers, grandfathers and the extended family to new parents means that sometimes people become parents without the support of their family who have been through that before, so they do not benefit from the wealth of that experience. I do not think this is to do with unplanned pregnancy or feckless parents. It has been demonstrated that many people new to parenting nowadays need support to understand what good parenting is. In my experience, and as the research shows, parents want that support and want to be good parents. That is why, as noble Lords have said, the provision of the opportunity to learn what that means is so crucial. Putting on the statute book that this will be available, without dictating the terms of that in detail, is an important thing to do.
The noble Lord, Lord Northbourne, rightly looked at the Childcare Act and said that it does not make provision for parenting education and support, and he is right. However, other legislation already on the statute book and in statutory regulations make provision for that, and it was enshrined in the legislation and regulations that define the Sure Start children's centre, as the noble Lord, Lord Storey, pointed out. When the regulations for what children’s centres should provide were being drawn up, they included a core offer that all children’s centres had to provide, as well as some optional things that centres could provide depending on local need. The provision of parenting support and parenting education classes is in the core offer. All children’s centres, particularly those in disadvantaged areas, have to provide parenting support, and have been doing so. There has been enormous progress in the amount of provision available and, as the noble Lord, Lord Storey, has said, many schools, particularly primary schools, now provide that as part of their core offer.
The problem for me, which I would be grateful if the Minister could address, is that because children’s centres are closing and many are having to reduce the services they provide because of lack of funds, the progress that has been made in making parenting education and support available is now in jeopardy. The Minister may well refer to the point raised by the noble Baroness, Lady Walmsley, that the Government have very recently announced some new money to promote parenting support, but I question the need for that at the same time as we are seeing some of that provision disappear because children’s centres are closing and being reduced. There is some conflict about where the Government stand in relation to ensuring the provision is available. It has been available for some time now in children’s centres but, as I say, that is now in jeopardy.
I very much support the amendments. The noble Lord, Lord Northbourne, said that he would not press them for a vote, but I think it is important for the Minister to make clear the Government’s position on this, particularly in relation to children’s centres. We will come to that issue in more detail in Amendment 5, but it is relevant here because this is predominantly where parenting support and education is currently available.
The Earl of Listowel
Before the noble Baroness sits down, can she say whether she thinks it important that there is a good, continuous institutional base for parenting training and development? I may have misremembered—
The Earl of Listowel
I thought it was the case that one could ask a brief question before someone sits down. I do apologise if that is wrong.
Baroness Hughes of Stretford
If noble Lords will accept the question put to me by the noble Earl, Lord Listowel, I will answer it. I think it is very important that there is an institutional base because one needs to develop a great deal of expertise around delivering parenting support.
There is a danger that anybody who has been a parent thinks they can give effective parenting support and education, and that is not the case. Children’s centres are required to provide only those programmes that have been extensively researched and validated to show that they have a positive impact. The Webster-Stratton approach and others have been so researched and the documentation on their effectiveness is in the public domain. It is not clear who will deliver the programmes the Government have put this extra money into, but it is very important that there is the training and delivery of really clear programmes that make a difference. Otherwise, if people think they can just get a group of parents together and advise them because they have been a parent and they know how it is done, I am afraid that can do more harm than good.
“( ) Regulations under subsections (1) of (2) may not, following their first use, specify a reduction in the total number of hours of early years provision available to each child that a local authority must secure free of charge.”
Baroness Hughes of Stretford
My Lords, Amendment 4 relates to the early education provision for three and four year-olds and now for two year-olds. Amendment 5 relates to Sure Start children’s centres, on which we have already briefly touched. As it stands, the clause makes it possible to include in statutory regulation the provision of free early years provision for children of two years of age from disadvantaged backgrounds. I want to start by saying how genuinely I welcome the extension of this provision for disadvantaged two year-olds. This was started by the previous Labour Government initially giving places to 12,000 two year-olds with a long-term goal of free places for all two year-olds, and building on the offer for three and four year-olds. I very much welcome the Government’s decision to continue that process.
As it stands, the Bill gives the Secretary of State new powers to decide, through regulation, how much early years provision should take place and when it must be made available. This amendment aims to ensure that any changes in the scope of that regulation-making power can be used only to increase provision above that which already exists, and not to reduce it. The amendment would mean that moves by any future Government to reduce early years entitlements would have to come before Parliament as a whole and could not simply be done through regulation alone. I tabled a similar but not identical amendment in Committee, and I was grateful for the advice of the Minister that its wording could have reduced the flexibility available for parents. That was not my intention.
I come back with this amendment not because I doubt the sincerity of the Minister or even the current Government in their commitment to continue and, if possible, build on this early years provision. Noble Lords have identified it as important; having children in early years education and childcare allows for opportunities on, for example, early intervention, assessment and parenting. I do not doubt the Government’s sincerity, but we do not know what a future Government might do. More importantly, there are two reasons why this provision should be included. First, families need and deserve the certainty that this provision will continue, and that if it changes it will only increase, without Parliament having to consider it again. That is important for families. Secondly, and relatedly, I would like to enshrine this provision, as far as possible, with the same or equivalent status as that of schooling from the age of five, because that would underline and would state powerfully the importance of early years provision. In other words, it is a provision that parents can expect will continue—and that Governments will continue to provide—for children aged two, three and four. It is for that reason that I hope, with the changes I have made to the amendment, that the Minister might accept it on this occasion.
I turn now to Amendment 5. We rehearsed the arguments about the importance of Sure Start briefly yesterday in Questions, and we debated it in Committee. I make no apology for returning to this but I realise, from the Minister’s earlier statement, that he is unlikely to accept this amendment. I nevertheless say that what the previous Government managed to do—and I think this Government are in support in principle—was establish a new framework of services for parents and the under-fives, through a national network of children’s centres, one in every locality. Not every centre has the same services; in disadvantaged areas there are more extensive services than in others. They are, however, a focus for the integration of services such as children’s social services, early education and health services. We aspire to early identification of children and families in difficulty in a universal, non-stigmatising service that will enable the centre to identify and reach out to families who need support, as well as offering other opportunities—such as play activities—that all families can take advantage of. Having established this national network, it would be a retrograde step to let it crumble. My concern is that it is crumbling.
I have brought forward this amendment to reinstate the qualification requirements which the Government have removed. As with teaching, we know that the quality of early years provision in particular is absolutely fundamental, and that the quality of the provision is fundamental to having a positive impact on children. It would also reinstate ring-fencing of the funding for Sure Start centres.
I quickly wrote down what the Minister has just stated: that he feels that the Government, through the early intervention grant, have provided sufficient money to sustain a national network of children’s centres. The early years intervention grant brings together funding not only for Sure Start children’s centres, but for 20-odd other services, including, for instance, the strategy to tackle teenage pregnancy. A whole range of things has been lumped into this grant. As a whole, the early intervention grant is 20 per cent less in real terms than those funding streams were when added together, so it will be a huge challenge for local authorities to sustain their children’s centres when the money now has to be spread across 21 different services and has been reduced by 22 per cent in real terms. I really must say to the Minister that while the money might sustain something of a network of children’s centres, it probably will not sustain the level of national network that we achieved with a children’s centre in every locality—one, as I have said, that is accessible, universal and non-stigmatising.
To make this a residual service only for the most disadvantaged areas misses the point of children’s centres and risks the fact that very disadvantaged families will not get to them. One of the reasons they were coming to children’s centres was that they were for everybody, not just for disadvantaged people. If it was just another arm of the statutory services, they kept away.
This is an important amendment, but I do not think for a moment that the Minister is going to accede to it. We have information now that we referred to yesterday: as a result of the reductions in funding, many centres are actually closing down and many more closures are in the pipeline. Further, centres that are staying open are reducing their service offer down to the absolute minimum. Looking to the future, given that this national network of centres had an enormous potential to make a huge difference to the next generation of young people, then of all the decisions the Government could have made in relation to funding priorities—I accept that they had to make them—sustaining this service at the level at which it was being provided ought to have been a priority. I hope—although I do not have much hope—that the Minister will also look sympathetically at Amendment 5. I beg to move.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his reply and have a few brief comments in response to his contribution and also that of the noble Baroness, Lady Walmsley.
On Amendment 4, I hope that the noble Baroness will not think me discourteous if I say that it will not sufficiently comfort me or many parents—as was my intention with the amendment—to say that it is in the coalition agreement and so will be all right. We have measures now in Parliament that were not in the coalition agreement and there are measures in the coalition agreement that have not—as yet, anyway—been put forward to Parliament. While I accept her personal commitment, and that of the Minister and indeed maybe of the current Government, what happens in the future is open to question. As I said, my intention was both to give parents some certainty and also try to give this provision to the under-fives an equivalent status to that of schooling. I am sorry that I have not been able to convince the Minister that those were sufficiently worthy objectives to accept my amendment.
On Amendment 5 and the children’s centres, I am grateful to the noble Baroness for her support on training. The comments about the improvement in the skill levels of people in early years are important but, certainly in part if not in very large measure, those improvements have been made. We have set the bar higher. A big issue about the quality of early years provision is the level of qualification and training that people get. We know that this is a largely unskilled, underpaid and female workforce. Over time, we need to bring up the levels of qualification and expertise. As I said, the improvements have been the result of setting the bar higher. Lowering the bar is a retrograde step, notwithstanding the comments that the Minister made about the requirements of people in a supervisory capacity.
On ring-fencing and whether this should have been a greater priority for the Government, we will have to beg to differ. I hope that the department will keep a close eye on what is happening in Sure Start children’s centres, both in terms of the numbers and what is being offered inside them. As I said, to risk this national network crumbling now would be another retrograde step which I am sure that the Minister would personally not support. However, in light of those comments, there is no point in my pressing this to divide the House. With that, I beg leave to withdraw Amendment 4.
Baroness Hughes of Stretford
We have had a good debate on this set of amendments and once again we have explored some of the items that we considered very thoughtfully in Grand Committee. The important point to make is that we already have legislation on this issue. It is legislation that has been crafted over many years, it is carefully balanced and it does many of the things that noble Lords around the House have been talking about in terms of balancing the rights of parents, teachers and pupils. It goes some way towards doing what my noble friend Lady Morris considered, which is safeguarding pupils. I accept that that has to be at the heart of this.
What we are confronted with is a Bill that extends powers which already exist, and we are trying to reflect back to the Government the fact that if they are going to extend those powers, they still have to maintain the balance between all the rights we have talked about. I understand the noble Lord’s points about the role of guidance and, as someone quite rightly pointed out, in previous Governments we provided it as well. But guidance has a role to expand on the core principles set out in legislation. I think that that is the issue at heart here. We have lost sight of the core principles in terms of searches, discipline and how all that is carried out. We are attempting to redress the balance.
The noble Lord talked about training and the guidance, which has come out relatively late. I point out to him that, on the issue of training, the guidance states:
“There is no legal requirement for a head teacher or authorised member of staff to be trained before undertaking a ‘without consent’ search”.
I hope that, when the guidance is worked on, that wording will be reflected on further and redrafted into a more positive statement about the need for training. I certainly feel that the view of the House is that it is important. However, the noble Lord has gone some way to reassuring us on the point.
I come back to the more fundamental points that we have been addressing: whether it is right for these searches to be carried out alone, whether a witness needs to be present, and to some extent the point raised by the noble Baroness, Lady Walmsley, about the need for same-sex searches. Our key point is that a witness is the key, core and fundamental protection of the rights both of the pupil and of the teacher. A number of noble Lords around the Chamber have talked about teachers being concerned about the extended role being placed upon them. They were fearful of their role and they are becoming more fearful of the expectations that are being laid on them. We have not heard of any pressure coming from teachers demanding this additional power. If anything, they are saying that they do not want the extra burden and responsibility. The issue of having a witness present is absolutely fundamental, and I shall return to it in a moment.
Finally, Amendment 10 concerns school rules. Again, the debate around the Chamber has highlighted how easy it is, if we are not careful, for rules from school to school to vary quite considerably. We have already heard that the rules for maintained schools may be different from independent schools, which in turn could be different from academies. Where is all this going in terms of a kind of consensus about what is right and what is wrong? All we have asked for is that the Secretary of State should issue guidance to specify what would be prohibited items in the broadest sense so that parents throughout the country would have confidence that there was some unanimity across different schools.
Our position is this. On Amendment 6, the noble Lord has gone some way to reassure us, and therefore I shall withdraw it shortly. But in doing so I give notice that we intend to divide the House on Amendment 7, which relates to the issue of a witness being present at all times. We think that that is a fundamental, core principle that should be on the face of the Bill. I beg leave to withdraw Amendment 6.
Baroness Warnock
My Lords, I strongly support the amendment introduced by my noble friend Lord Low. There is often a tendency to treat SEN as if it contains only one group of people. I have had many letters from parents who find that the school may think that anybody is an expert in their child’s particular special need as long as they are an expert in SEN. That is far from true. This is particularly noticeable in the case of autistic children where understanding the management of autism, as far as it can be managed particularly in the school context, is a very specialist subject. That is why so many autistic children are excluded from school. It is of enormous importance that the SEN expert, who must quite properly be on the panel, should be an expert in the relevant disability.
It is also important that one should not think of SEN as completely contained in those children who have statements. As my noble friend said, at least 18 per cent of people with disabilities do not have a statement. Long ago, this 18 per cent without a statement came to be known as the “Warnock children” because I was particularly interested in them. They were often neglected because their disability was not serious enough or perhaps did not seem so. Therefore the local authority had no statutory duty to provide for them.
Exclusions, which I am sure all noble Lords agree should be avoided as much as possible, need to be carefully scrutinised for any child who is on the lower grading of disability. This often involves children with behavioural and emotional difficulties, who are likely to behave badly at school and incur either temporary or ultimately permanent exclusion. I welcome the improvements that have been made and I think that things are going in the right direction. However, these questions about children who do not have statements and about the choice of relevant expertise on the panel are of the greatest importance.
Baroness Hughes of Stretford
My Lords, I speak to Amendments 17, 19, 21 and 29, and also support Amendment 15 and Amendments 24 to 28 that the noble Lord, Lord Low, and my noble friend Lord Touhig have spoken to. In particular, I agree with the noble Lord, Lord Low, that Amendments 24 to 28 have, in quite large measure, been addressed by the guidance that we received from the Minister yesterday. I am pleased that, certainly at the stage of the review panel, which is the final stage in the process of reviewing an appeal, the Government have seen fit to make provision for most of the things demanded in Amendments 24 to 28: for a special needs expert to give their views, for the parents to have a right to that, for the parents to be told about that, and so on. That is all welcome.
However, the Government guidance does not address Amendment 15, which is similar in intent to our Amendment 17. They both seek to ask—the noble Baroness, Lady Warnock, just alluded to it—whether we can make sure that relevant information, particularly about a child’s special educational needs and especially unidentified needs, has been brought into the process not at the final stage of the review panel but at the very earliest stage of the head teacher’s decision and particularly at the point at which the responsible body—that is, the governors of the school—has been asked by parents to review that decision.
Amendments 17 and 19, in particular, concern the exclusion of pupils who have unidentified special needs. There is a principle of natural justice underlying the amendments: that where a child is at risk of exclusion, the decision-maker should have the full facts about any special educational needs—not at the final stage, as I say, but at the earliest possible stage. This is particularly important where needs have not been identified, so these amendments would ensure that children with special educational needs but whose needs have not been adequately addressed by their schools are not permanently excluded. In Amendment 17, that is by ensuring that when “the responsible body”—that is, the governing body—is making the initial decision on whether to affirm the head teacher's decision, it must,
“consider a report … from the special … needs co-ordinator”,
or expert. In Amendment 19, it is by ensuring that when the review panel is considering the case at the final stage, it has a report.
I accept that, alongside Amendments 24 to 28, Amendment 19 has largely been covered by the Government, which is great. Yet in relation to Amendments 15 and 17, while the Minister’s letter accompanying that guidance says that the responsible body as well as the review panel should take account of any relevant information in relation to pupils’ special educational needs when reviewing the decision to exclude there is, first, no requirement for the head teacher to take cognisance of that information when taking the initial decision to exclude and, at the level of the governing body in deciding whether to review that decision there is, secondly, no right for the parent to have a special needs expert. The guidance refers simply to the governing body having information on the child's special educational needs already held by the school. It does not precisely cover the circumstances where such needs have not been identified because it simply refers to the school making available to the governing body information that it already has, not seeking a wider assessment of the special educational needs that the child may have.
Surely it is better to have this expert view early in the process so that an exclusion may be prevented rather than only at the final stage, when a review panel is deciding whether to endorse the decision. That is particularly so given that the review panel does not, according to the Government's proposals, have the power to reinstate the pupil. I very much support Amendment 15 but if the noble Lord, Lord Low, decides not to press that amendment then I give notice that I would like to take the opinion of the House on Amendment 17, which would similarly bring the special needs expert person into the process earlier on to prevent the exclusions.
Amendment 21 would empower the exclusion review panels to require the schools to reinstate a pupil if they are satisfied that that is the right thing to do. We had a long debate about this in Grand Committee, when there was a very strong view across the Committee that this was a principle of natural justice—that if a decision made against someone is later found to have been flawed, that decision should not stand. Yet that principle is not upheld under the clause and the right to insist on the reinstatement of an unfairly excluded child is withdrawn.
In Grand Committee the noble Baroness, Lady Walmsley, among others, expressed similar concerns. It is rather surprising that the only amendment in relation to the power to reinstate has come from me and my noble friends, because I thought that the consensus of opinion in Committee was in support of that. I accept that heads may be in a difficult position if a panel were to reinstate, but we also had a sensitive discussion in Grand Committee about what should prevail in those circumstances. I think we agreed that given the impact on the child of having a decision by the review panel to reinstate, that is a far better outcome for the child, even if after discussion the child goes to another placement because of all the issues that have preceded that decision. It gives the child some rights in relation to flawed decisions which, at the moment, are not contained in the Bill.
Amendment 29, briefly, would require,
“a school to retain an excluded pupil”,
on its school roll,
“and to fund the pupil’s education until the pupil is no longer of compulsory … age”.
Our intention here was that the schools should retain financial responsibility but, more importantly, the responsibility for progressing that child and for their final outcomes in whatever alternative provision they went into. The intention was twofold: first, to give schools the opportunity to have a second thought before making the final decision on exclusion, knowing that they would retain responsibility for a child, as a kind of check and balance in that system and, secondly, to make sure that the school has some responsibility for the final outcomes for the child—even if the child goes elsewhere.
The Minister has sent me a letter and the department has issued a press notice on the pilots that the Secretary of State has announced, which are not the same as those proposed in our amendment but go some way to exploring the potential for schools to have responsibility for arranging an alternative decision. It is not the same as giving schools the responsibility of keeping a child on the roll. However, it involves the schools having the finance that goes with arranging alternative provision and the responsibility for ensuring the equality of that provision and for staying in touch, albeit more informally, with what happens to that child. I welcome that provision and I look forward to hearing the outcome of those pilots.
Although there is some movement in relation to Amendments 19 and 29 in the guidance, if the noble Lord, Lord Low, does not press his amendment to a vote, I would like to take the view of the House on Amendment 17.
Lord Sutherland of Houndwood
My Lords, I welcome the movement that there has been on the principles of Amendments 19 and 29 because they are sensible principles. The moves of the Government go some way to reassuring me there but I want to comment on Amendment 21, which is clearly a crux amendment in terms of overturning the powers that are specifically included under subsection (1) of the proposed new clause in Clause 4(2)—the power of a,
“head teacher of a maintained school”,
to exclude permanently.
I want to retain that power and I do not wish to give the review panel the powers to overturn it. The reason I give for that is that it would produce a virtually impossible situation for both the school and the pupil. The case would be a cause célèbre by the time it came to this stage and it would not do either any good. There is sufficient safeguard in the Bill for the school to be very careful before it moves to such an extreme conclusion. The safeguards come in subsection (4)(c) of the proposed new clause in Clause 4(2), where it is hinted—indeed, it is said explicitly at one point—that the review panel may consider the procedures of the responsible body as flawed,
“in the light of the principles applicable on application for judicial review”.
That seems a very serious warning to a responsible body, be it a head teacher or a governing body, before making such a final judgment.
I would hope that that would be sufficient to deter bodies from, not frivolously, but perhaps injudiciously or in some weakening sense, causing an individual to be excluded unnecessarily. The suggestion that the school would be considered responsible for the financial provision for the future education of that individual is a fair warning to the school. Even if the higher motive did not prevail, the lower one might well do so in the school taking responsibility for what could be a very expensive course of education. I beg to differ on Amendment 21.
Baroness Walmsley
My Lords, I rise to move Amendment 16 and to speak to all the other amendments in the group, apart from Amendment 31, because they are also in my name. As we have heard, Clause 4 proposes to change the arrangements for hearing appeals against permanent exclusions from school. Many issues arise in the case of the high proportion of children in this situation who have special needs. Clearly, a driver for this legislation has been those head teachers who have asked the Government to change the system because they have been subjected to what they believe are bad decisions and have lost confidence in it. In such a situation the logical thing is to change a bad system to a better system. Instead, I believe the Government are in danger of changing a bad system into an inferior system.
In Committee, I asked the Government to consider allowing all exclusion appeals to go to the First-tier Tribunal, where provision for children with special needs is appealed. That would mean changing to a system which one of my advisers said is light years better than what we have now, with a qualified solicitor of seven years’ experience in the chair. I hope that my noble friend the Minister will confirm on the record that the Government have agreed to pilot this idea and test it out. I am grateful for that, which is why I have not laid that amendment again but instead have laid this group of amendments which seeks to improve the Government's independent review panels in the mean time. However, I hope that my noble friend will confirm that the pilot will be a proper one and give the First-tier Tribunal the same decision-making powers that appeals panels have now, including to reinstate a child if, in its vast experience, it considers that an injustice has taken place, bearing in mind, as always, the best interests of the other children in the school as well as those of the excluded child.
Another idea has been put to me only in the past few days. I wonder whether the Government might consider whether the magistrates’ courts might have a role which does not suggest that either party has committed a criminal offence. They are used to dealing with young people and they understand how to judge difficult cases, so that is an idea worth considering while we are piloting alternatives.
Amendment 16 requires that a child has an opportunity to make his own representations to the IRP and receives all relevant information to help him to do so. I hope that this will also be allowed in the First-tier Tribunal pilot. It is now becoming good practice for children to be able to represent themselves in all sorts of spheres, according to Article 12 of the UNCRC, including in SEND tribunals. It would make sense for them to be able to do it here too.
Amendment 20 is about the training of panel members, which should be provided by accredited independent providers and cover all relevant issues, as outlined in my amendment. Amendment 30 defines what is meant by independent and accredited providers. Amendment 22 would ensure that the panel understands whether it was being asked to consider a case that should really be before SEND and then be able to refer that case to that First-tier Tribunal instead. Amendment 23 seeks to support the head teacher in a situation where the independent review panel has asked the school to reinstate the child, perhaps because it feels that exclusion was too harsh a punishment for the offence. Under the legislation, of course, we know that it cannot insist. However, in such a situation the head teacher may wish to put a condition on accepting the child back and involve the parents in ensuring the child’s future good behaviour in the interests of the other pupils in the school. That is why I have suggested that a parenting contract or parenting order might be a good idea—something else in the head teacher’s armoury.
Finally, Amendment 32 would provide a last resort for the child and his parent if he believed that the IRP had erred on a point of law. It would allow an appeal to an Upper Tribunal, rather than judicial review. An Upper Tribunal is a judicial body with expertise in this area. SEN cases already go to it and it consists of members of the senior judiciary. They look at a case on the basis of error of law or fact, so moving beyond the process under which the decision was taken, which is all that a judicial review can look at. The Upper Tribunal can look at a panel decision and remake it, or refer it back to the original panel.
Of course, we all hope that, if properly trained, the independent review panels would make sound decisions and that is what this clause seeks to ensure. However, no one is infallible, so this is a failsafe natural justice mechanism which I hope commends itself to my noble friend the Minister. I beg to move.
Baroness Hughes of Stretford
My Lords, I want to briefly speak to Amendment 31 in this group. This is a very simple amendment which would ensure that Clause 4 on exclusions and all that we have been talking about would apply also to academies. As the clause stands, it says:
“Regulations may make provision for this section and for regulations made under this section to apply, with prescribed modifications, in relation to Academies or a description of Academy”.
This amendment simply changes the “may” to “must”, so that the exclusions legislation and the guidance covered in Clause 4 apply equally to all state-funded schools. We cannot see any reason why these provisions, especially with the movement already made by the Government in guidance, should not apply also to academies. Why should the parents of children at academies not have the right to a special needs expert at the review panel? Why should the detailed requirements now in the guidance on the head teacher at the decision-making stage, on the governing body and on the review panel not also apply to the arrangements in academies?
Apart from the point of principle, there is a very practical reason why we need to do this. It is clear that the Government, in clauses we will discuss later—with presumptions that all new schools will be academies, with powers for the Secretary of State to intervene in schools that are in difficulties so that they immediately become academies—intend, as they have made clear, that as many schools as possible, if not all schools, should become academies in the fullness of time. If that is to happen, if we have many more schools becoming academies, I cannot see why we are discussing this legislation. If it does not apply to academies, it raises the question of the point of the guidance—it will become redundant if all schools become academies and this clause does not apply to academies. So we have very practical reasons for making sure, right at the outset, that this applies to all state-funded schools, including academies. I hope that the Minister will accept this amendment and I look forward to his response.
Lord Hill of Oareford
My Lords, let me start by talking about supporting pupils to participate appropriately in the exclusion process. I very much agree that that is important. The guidance on exclusions, which I have circulated, makes clear our view that pupils should be actively supported to participate at all stages of the process. In strengthening this aspect of the guidance we sought the views of the Children’s Rights Alliance for England. In response to its suggestions, the guidance now sets out: first, that head teachers should take steps to allow a pupil to present his case before an exclusion decision is made and take account of significant contributory factors, such as bereavement or bullying, that come to light after an incident of poor behaviour; secondly, that consideration should be given to how to enable and encourage the excluded pupil to participate in governing body reviews and independent review panels; and, thirdly, that independent review panels should be conducted in a non-threatening and non-adversarial manner. I am happy to discuss this draft guidance with my noble friend Lady Walmsley and will consider any suggestions that she may have.
I also agree with her point that schools should be able to agree with a parent clear measures to address poor behaviour when a pupil returns to school following exclusion. She talked about parenting orders and contracts. In fact, schools do have the power to agree a parenting contract or to apply for a parenting order, so I hope she will feel reassured that that is possible as things stand.
The noble Baroness, Lady Jones, raised the question of how the new exclusions process will be applied to academies. I can reassure noble Lords that the requirements will be the same on all state-funded schools, including academies and free schools. We have already updated academy funding agreements to reflect the changes proposed in the Bill, but the Bill also allows us to apply requirements that are placed on maintained schools equally on academies through regulations. I hope that that reassures the noble Baroness. As for training, which is an important issue, if a parent requests an independent review of an exclusion decision it is important that independent review panel members have the capacity to perform their role effectively. As is currently the case, local authorities and academies will be required to provide training to panel members every two years on specific areas set out in regulations. No individual will be permitted to be a panel member without receiving this training, which must cover issues such as the legislative requirements in relation to exclusions; the need for the panel to observe procedural fairness and the rules of natural justice; and the duties of the review panel under the Equality Act 2010.
I understand the point made by my noble friend about the quality of training that some local authorities may provide or commission, but I am not sure that we would want to introduce a requirement for independence which would prevent a local authority which can deliver high-quality training itself from doing so. We want to draw on best practice in training for other bodies that make important administrative decisions. To that end, we are talking to the Ministry of Justice about what more we can do to support this training to ensure that local authorities are clear about the new requirements and are able to develop or commission effective training.
“( ) requiring the responsible body to consider a report about the pupil from the special educational needs co-ordinator when considering whether a pupil should be excluded;”
Baroness Hughes of Stretford
My Lords, I gave notice that if the noble Lord, Lord Low, withdrew his amendment, I would take the opinion of the House on this one, which has the same aim. It would bring forward to an earlier stage in the process a requirement that the governing body seeks the views and assessment of a special needs expert. It is in the interests of children to bring that forward earlier in the process. I beg to move.
Sure Start
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Lord Hill of Oareford
I do not have that specific answer to hand. Perhaps the noble Baroness will be able to help me, because I know the party opposite has done some work on that. I think the number amounts to 1.5 per cent of all Sure Start children’s centres.
Baroness Hughes of Stretford
My Lords, dozens of Sure Start children’s centres have already closed and many more will do so. Equally importantly, services are really being cut back in the remaining centres. The noble Lord neglected to say that the early intervention grant has been reduced by 22 per cent in real terms. Yet, for a tiny fraction of the cost of the health reorganisation, the Government could have protected children’s centres. Does this not reflect the fact that the Government are out of touch, particularly with women’s concerns, and why so many women now think that the Government are going in the wrong direction?
Lord Hill of Oareford
I do not accept in any respect the point that the noble Baroness makes. From our debates during the passage of the Education Bill—I will not bore the House by repeating them—she will know about the money and funding that the Government have put into a whole range of priorities, including addressing the children in greatest disadvantage and seeking to help mothers and families who are struggling with those problems, as well as a whole series of initiatives and trials. We will continue with those. But to come back to the point made by my noble friend Lady Walmsley, there is a difference in the way certain local authorities have prioritised their spending, which we have to accept.
Education Bill
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The Lord Bishop of Hereford
My Lords, surely it is the case that everyone here would be totally committed to having the best possible teaching in every institution. However, in the light of the comments that have been made, I shall make three points. First, reference was rightly made to child protection. As we well know, a lot of teachers were qualified a long time prior to the present requirements and training. They did not receive that training when they first qualified after doing their diplomas in education, certificates, BEd or whatever. That seems to me to be a crucial point.
Secondly, while we want these things frontloaded as much as possible, they should not be just frontloaded. It is not just a matter of training before a person teaches. As we all know, and to which we are all committed, there is very much the ongoing need for training. Perhaps that needs to be given a slightly greater weighting than, perhaps I might say, has happened in the comments that have been made.
Thirdly, I would observe that, were a free school rash enough to want to have teachers who were not up to the job, that would surely be a recipe for disaster and failure. They would have no pupils. They certainly would not pass the inspections. Is this not an area where there needs to be some recognition that anyone involved in education will have the best for their pupils in mind and their co-operation, and would therefore want the best possible teachers? How far is it right for legislation to touch that? How far is it right to have trust in the governors and the trustees of the schools? Certainly, when they advertise for posts, they will want skilled people and the best. Surely they will provide training, if it is lacking, in their own context. As I have heard, and I have no doubt other noble Lords have as well, those involved in free schools are already speaking—if they are prepared to consider people without teaching qualifications—about making sure that they provide whatever teaching experience and extra training that people need.
Finally, to what extent could we and should we rightly trust the schools themselves and to what extent is this a matter for legislation?
Baroness Hughes of Stretford
Having been prompted by the noble Lord, Lord Storey, I should like to make a brief intervention, which I hope the Minister will address in his summing up. If he does not, we can come back to it. It seems to me that our view on this amendment may depend on what we define to be a “teacher”. I do not know if there is any definition in law as to what a teacher is. Certainly, for clarification, I do not think that we are saying, any more than the noble Lord, Lord Storey, is saying, that everyone who stands in front of a class and delivers teaching should have a professional teaching qualification.
However, the spirit of the amendment is that it is very important that every child and every class in a school, and every subject area in a secondary school, should have a qualified teacher with oversight of the progression of each pupil and the delivery of the materials in relation to the subject being taught. That is the key issue. Certainly, the previous Government provided for considerable diversification of people in the classroom teaching and talking to pupils—for example, teaching assistants and learning mentors. There are many potential uses of people with great expertise in their field, but who may not be qualified teachers, to come in and give their expertise and enthusiasm to pupils. I believe fundamentally that the progression of each pupil should be under the oversight of someone with a teaching qualification and, if appropriate, in the subject area. Seeing the preparation that my son, who is a primary school teacher, carries out and the expertise gained from his basic training that he brings to bear on both those issues—the progression of each child and the way in which subject matter is delivered—has further convinced me that this provision is right. That is not to say that people with a basic teaching qualification should not also undertake continuing professional development. Of course they should and all qualified teachers are required to do so. However, there is added value to be gained from the professional training which people without that training cannot bring to those two tasks. I would be grateful if the Minister would clarify the Government’s position on that.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, I agree with what the noble Baroness, Lady Jones of Whitchurch, and my noble friend Lord Storey said about the importance of a high-quality professional teaching workforce. As the noble Baroness said, in some of our earlier debates in Committee we have talked about some of the Government’s plans for improving teacher quality such as raising the bar for entrants to ITT, strengthening performance management arrangements, our proposals for teaching schools and the expansion of Teach First, which the previous Government introduced and to which I shall come back in a moment.
I am grateful to the right reverend Prelate for mentioning continuing professional training. I agree with him and the noble Baroness, Lady Hughes of Stretford, about the importance of that. We have also asked the Coates review to revise and improve the standards that underpin QTS, and we have announced that we will adopt the clearer and more focused standards recommended by the review. Therefore, we are not talking about some wholesale move away from a commitment to the highest possible standards. As the noble Baroness, Lady Jones, said, we require academies to employ teachers with QTS through their funding agreements. The decision not to require QTS for all staff in free schools is simply intended to allow the possibility of greater innovation at the edges of the maintained sector. We have done this because we are keen to give free schools the ability to recruit experienced teachers who might have a background in FE, the higher education sectors, the independent sector or in other walks of life, who can bring their wider experience to bear in the classroom. It may be a way of getting—I have seen this in a school where I was a governor—a brilliant mathematician with a brilliant degree into teaching more speedily when there is a desperate need. It may be a way—this point was raised by my noble friend Lord Storey—of getting people from the Armed Forces, who might be able to engage particularly well with teenage boys. There are practical cases at the margins where this extra flexibility might help.
As the noble Baroness, Lady Jones, will recall, during the passage of the Academies Act we made commitments to ensure that additional safeguards are in place for vulnerable groups regardless of the type of school they attend. The free school funding agreement requires free schools to appoint a special educational needs co-ordinator and a designated teacher with responsibility for children in care, who hold qualified teacher status.
My next point links with the more general point made by the right reverend Prelate. Free school applications have to undergo a rigorous assessment process and have to demonstrate how they intend to deliver the highest quality of teaching and learning. However, as he argued, more generally they will be directly accountable to their parent and pupil bodies for the quality of education provided. Clearly, they will want to provide the highest quality education both in order to be approved and to continue to succeed. Like other academies and state-funded schools, they will be required to collect performance data and publish their results, and they will be inspected by Ofsted under the same framework that applies to all publicly funded schools, including on safeguarding. As free schools are intended to respond to parental demand for change in local education provision, it will be incumbent on free school academy trusts to ensure that their teaching staff are properly equipped to deliver their particular educational vision.
The core of the Government’s argument is that all Governments seek to innovate. The previous Government took the decision to set up Teach First, which is an innovation I applaud; it was intended to bring about more flexible entry into the profession. I am sure that at the time there were some people who argued that this was a dangerous innovation, and I am glad to say that the previous Government persevered with it. We see this as being no different. It is a modest innovation, it is a permissive measure, and it is subject to the strict accountability measures that I have set out. I therefore ask the noble Baroness, Lady Jones, to withdraw her amendment.
Baroness Hughes of Stretford
With respect, did the Deputy Chairman call Amendment 126ZZA?
Baroness Hughes of Stretford
That is the first amendment in what is not the next group of amendments but the group after that, according to the draft groupings. Is that not right?
Lord Skelmersdale
My Lords, the noble Baroness, Lady Murphy, has just withdrawn Amendment 126 to Clause 54. We now move on to Clause 55, which starts with Amendment 126ZZA.
Baroness Hughes of Stretford
I beg the Committee’s pardon. I was working to earlier groupings and wondered why they were listed in that way. I obviously did not check my computer at the last minute.
Amendment 126ZZA
Baroness Hughes of Stretford
I shall speak also to Amendments 126ZZB and 126ZBA to Clause 55, and to Amendments 126ZD and 126ZE to Clause 58. Elements in those clauses and these amendments relate to the requirements on the consultation that must take place before a maintained school can convert to an academy. The proposals in the Bill are worded such that the governing body itself can decide who is consulted and when that consultation takes place. That timing can include consultation taking place not only before but after an order is applied for or is made. That seems to us to be contrary to the spirit of any consultation, in which, minimally, there ought to be legitimate parameters around who should be consulted and when the appropriate timing is. Most reasonable people would say that consultation should take place before a decision is made.
These amendments therefore seek to say, first, that there should be some minimal requirements on who is consulted—that the governing body cannot have a completely unfettered right to decide whether anybody, or nobody, will be consulted.
Secondly, the consultation should take place in time to inform decision-making. If it can take place after a decision has been made, if only in principle, that begs the question of what purpose it serves. As to consultation that can take place after an order is made, let alone an application for an order for a school to become an academy, it seems to suggest that the Secretary of State will make a decision in favour of an application whatever the consultation might say. That does not do the Government much good and certainly does not suggest that they regard consultation as a meaningful process.
There are important issues of principle here. Before making this speech, I thought of all the consultations that Governments and many other organisations are required to have with the public before they put forward proposals or change legislation. All the consultations have a set of minimum requirements on the people consulting as to what should be the scope and the best timing for the consultations. I cannot for the life of me think that it is reasonable, again on the altar of freedom for schools, to tear up the reasonable notion that there should be a definition in statute of the scope and timing of this consultation. That is a reasonable thing for the law to say and therefore I hope that noble Lords will support the amendments.
Baroness Brinton
I will speak to Amendments 126ZB and 126ZC. Before I do, I will say that I support the comments about consultation made by the noble Baroness, Lady Hughes. Post-event consultation is not consultation. In my experience, and I am sure in that of many noble Lords present, it is infuriating to communities when that happens, because they realise that they are being given information rather than a chance to influence what is happening.
The intention of the two amendments that I am speaking to is simple and sits at the heart of the coalition agreement's stated desire to affirm and support localism. I turn first to Amendment 126ZB. The current consultation on intervention for conversion to an academy is the opposite of true localism. As expressed in Clause 55(3), the consultation is done either by the proposed academy—and we know from experience that many academies do not want to consult widely—or by the Secretary of State. How on earth the Secretary of State or his hard-pressed civil servants can seriously manage such consultations, I do not know. Even more worrying is the fact that this is exactly the role that should be given to the independent but local elected authority, which has the strategic responsibility for economic and social well-being in its area and must ensure the appropriate provision for schools and the learning of education and skills.
Amendment 126ZC follows logically when a new school is being considered for academy status. At present, the Bill leaves everything to the Secretary of State, who will have to consult locally in order to take a view on what is needed. Therefore, it seems sensible that,
“the local authority must confirm whether the school is required”,
taking account of other school provision in the area. We should see new schools only in areas where there is a need. In these straitened times, setting up new schools where there is a surplus of school places is not the most sensible thing to do. Finally, I will just say that we are concerned that this undoes some very sensible work done with the Academies Act before Christmas, and we hope that the Minister will reconsider the Government’s position.
Lord Hill of Oareford
The view of the Government is the same as it was a year ago. It is the view that the House reached after debates and, indeed, votes; namely, that we do not need to prescribe lists of people, short or long, in legislation in the way that perhaps happened in the past.
Baroness Hughes of Stretford
If the Secretary of State received an application and the consultation that had been done beforehand did not include the views of parents and staff, what would his attitude be in making a decision on the basis of that consultation?
Lord Hill of Oareford
The view that the Secretary of State would take is that schools that are converting need to comply with the terms of the legislation—the Academies Act—which requires that they should consult such people as they think are appropriate.
Baroness Hughes of Stretford
We have had a number of occasions when, because the Minister is a very reasonable person, we have not pressed to the point where we have got a satisfactory answer from him. This is one of those occasions. We had a similar situation not long ago in relation to qualified teachers. What would the view of the Secretary of State be if he received an application that did not inform him of the views of parents? What action would he take to ask why? Would he ask the applicants to go back and get them? Would the Secretary of State be happy to make a decision without knowing what local parents thought about the proposal?
Lord Hill of Oareford
It is clearly the case that the governing body wanting to convert has to consult the groups it considers appropriate. If people felt that they had not had a chance to be consulted and were to raise those complaints with the department, that would clearly be something that the department would have to take into account in reaching the decision that it takes. It is not possible for me to go through every possible circumstance that one can possibly come up with and give an answer. There is a clear legislative framework within which the department operates.
Baroness Hughes of Stretford
I want to press this again because this is not about what the applicants think. This is about the point at which there is an application on the table for a decision by the Secretary of State. I am asking the Minister to tell us what would be the view of the Secretary of State. Does he think he could make a decision without knowing the views of local parents? What would be in the Secretary of State’s mind and what would the Government at that point require in order to make a decision? If he were to say that the Government would require to know what parents think, I would say that that requirement ought to be laid upon the applicants in the way that they frame the consultation. However, at the moment I am asking: what is the Government’s view about what they need to make a decision?
Lord Hill of Oareford
I am sorry not to be able to be more helpful to the noble Baroness because I know that she is also extremely reasonable. She will no doubt keep pressing and we can return to this another time. But the Government’s position is that the legislative requirement on a converting governing body is set out in the Academies Act 2010. The Government take into account whether or not schools have demonstrated that they have complied with those requirements, which are set out clearly and were inserted as a result of debate on this Bill last summer.
Lord Hill of Oareford
I was coming to that point. I have not got very far with my response. On precisely that point, my noble friend Lady Brinton raised the issue of who should do the consulting when schools are considering converting to academy status. As we have just been discussing, the starting point of the Government is that it should be carried out by the school’s governing body. However, this approach might not always work with underperforming schools that are eligible for intervention. There may be rare occasions when the governing body of the underperforming school seeks to block the development of an academy solution by refusing to consult. Clause 55 resolves this issue, as my noble friend pointed out, by permitting the proposed sponsor to do the consulting.
My noble friend suggests that the local authority would be a better alternative than the proposed sponsor. Clause 55 relates to schools that are failing their pupils and we think need radical improvement. We know that the evidence shows that converting such schools into academies with excellent sponsors can bring about that improvement. Becoming an academy involves, by definition, moving out of local authority control, so it seemed to us it was not right for the local authority to lead the consultation. It is the sponsor who has been identified as able to transform the school, so in our view they are better placed to consult on its future direction. But that consultation has to be carried out in a proper way.
My noble friend also raised important points about the local authority role in decisions about new and additional academies, such as free schools. I hope that I can reassure my noble friend that what her amendment seeks to put into law is already happening in practice. As a result of views expressed during the passage of the Academies Act, the Government introduced a specific requirement on the Secretary of State to take account of the impact of free school proposals on other schools. In meeting this requirement, the department seeks the view of relevant local authorities. In addition, any group wishing to set up a free school has to consult locally on its proposals. The consultation report is an important part of its application to the department. In deciding whether to approve a free school proposal, the Secretary of State therefore takes account of the views of the local authority and other interested parties, including on the issue of the level of need for additional school places.
We know that in practice, many local authorities are already playing a more active role than this. Some are building the free schools programme into their strategic schools planning and have provided proposers with support in areas such as finding sites, getting planning permission and working out levels of demand. It is the case that we do not believe that free schools should be set up only where local authorities identify that they are needed. The key point is to try to make the system more responsive to parental demand by giving parents, teachers or community groups the opportunity to do so.
We accept that consultation is important. It should be conducted in an open way. It should be appropriate to local circumstances. The Academies Act and this Bill provide for such consultation and I would therefore urge the noble Baroness, Lady Hughes of Stretford, to withdraw her amendment.
Baroness Hughes of Stretford
My Lords, I thank those Members of the Committee who have contributed to the debate. I also support the amendments spoken to by the noble Baroness, Lady Brinton, which would further refine reasonable requirements regarding how and by whom the consultation should be undertaken. I absolutely agree that it should be undertaken by people without a vested interest in the outcome. I also agree with her that the proposed new schools should comply with local authority requirements regarding the need for new schools.
The fact that this matter was debated a year ago when we discussed the Academies Bill—as the Minister said—does not mean that we should miss an opportunity to correct something that needs to be corrected. There are two key questions here: why should decisions on the scope and timing of consultation be left to the governing body to determine and why should a party with an interest in pursuing the objective of an academy be allowed to undertake the consultation? Unfortunately, the Minister did not answer either of those questions at all, let alone unsatisfactorily. His constant recourse to the legislative requirements for consultation, as if they have nothing at all to do with the Government, was very strange indeed.
My questions sought to ascertain what the Government require by way of information about the views of parents, staff, pupils and local authorities—four key groups—when the Government finally take a decision. Will they take a view at that point in the decision-making on the adequacy of the consultation, and therefore on the quality of the information that the Secretary of State has to enable him to make an informed decision? I am afraid that the Minister implied that the Government will require no information on the views of those groups. The governing body may decide not to consult those people or decide to consult them only after the Secretary of State has made a decision. That is simply not right. I think that all of us in this Room know that it is not right. I have some sympathy with the Minister as he is reasonable and he has been placed in a position of arguing for the demonstrably unarguable. I have no doubt that we will return to this on Report, but for the moment I beg leave to withdraw the amendment.
Education Bill
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Baroness Hughes of Stretford
My Lords, under Clause 43, the Secretary of State will be given new powers to intervene directly and to move quickly—much more swiftly than hitherto—to close schools. In response to that proposed new power, I shall move Amendment 122ZC.
Currently, the Secretary of State can direct the closure of a school only if it has already been categorised by Ofsted in its independent inspection as requiring special measures. Clause 43 will allow the Secretary of State to step in and close schools on the basis not of an independent, standardised assessment but of any judgment that he comes to that that route of closure is required. Under subsection (3), he will be able also to direct a local authority to issue a performance standards and safety warning notice where it has decided against it. Then, when a warning notice has been given for whatever reason, and the school has not complied, the school will automatically become eligible for intervention and it will be open for the Secretary of State to close it.
Closures of schools could therefore be triggered in this way by the Secretary of State, and not on the basis of an independent assessment by Ofsted. That is a serious extension of power. Closing a school is a nuclear option and has serious implications for parents and an area. The provision would also mean a transferring of schools into academy status by diktat of the Secretary of State without the normal processes having been gone through. I shall explain shortly what I mean by that.
Will the Minister set out his thinking on how closures allowed under the clause would take place and how they would contribute to increasing standards and meeting parents’ and pupils’ needs? Under what circumstances would the Secretary of State step in to close a school that was not in special measures rather than, as is the case at the moment, help drive improvements in the school as a first option? How would such closures that the Secretary of State could simply enforce enable a local authority, for instance, to plan strategically to meet pupil place needs?
As noble Lords may gather from our amendment, which is different from those that will be moved by Liberal Democrats, we do not have a particular problem with the power contained in the clause giving the Secretary of State the power to direct a local authority as there may be circumstances in which local authorities are or have been slow to act in relation to schools where improvements are required. However, we do have a problem with the uncircumscribed and unfettered power of the Secretary of State himself to close a school, and there are two reasons for that. First, there is an issue of principle relating to such a serious option in an area; that if a school is not in special measures, it is right that parents, teachers and locally interested parties are able to play a part in determining what happens to it. There ought also to be an independent assessment by Ofsted on the need for that option. Secondly, I question whether the clause is something of a Trojan horse to accelerate the establishment of academies. The clause, coupled with Clause 36 on the establishment of new schools and the presumption in the Bill that any new school will be an academy, will mean that where, outside an Ofsted inspection and the conclusion of special measures, the Secretary of State decides to close a school—he can do so for a whole variety of reasons—the new school that takes its place will, by default, be an academy. It will not have to go through the normal processes that schools are now required to go through to become academies. It is conceivable that even some relatively well-performing schools could be required to close by the Secretary of State.
I would therefore be grateful if, in addition to dealing with the points I raised earlier, the Minister could reassure us on this point. Will he set out the vision for the future education system and say whether the Government see a place for maintained schools in that? Is it the case that this provision and Clause 36, and the presumption that all new schools will be academies, are designed to ensure that the Secretary of State can accelerate the establishment of academies, irrespective of the views of parents and teachers, by closing schools directly himself and then reopening them as academies?
Baroness Sharp of Guildford
My Lords, I, too, want to speak to Amendments 122A and 122B. Clause 43 gives the Secretary of State powers to intervene and close schools that are in special measures. That widens the powers of intervention to schools causing concern. Subsection (3) strengthens the Secretary of State’s powers so that where a local authority, having been directed to consider set performance standards and to issue a safety warning notice, has decided not to do so, the Secretary of State may direct the local authority to give such a warning notice. If such a warning notice is issued to a school and it fails to comply, it immediately makes itself eligible for intervention. As the noble Baroness explained, that may well mean that it is closed and an academy is opened in its place. Under the Education and Inspections Act 2006, the warning notice gives the school the right to ask the chief inspector whether the warning notice is justified and the chief inspector may confirm it or otherwise.
Our problem with the subsection is the degree to which it removes all discretion from local authorities. The problem is that a local authority is asked to consider whether to give a warning notice and to set performance standards. If, having looked at the school, it decides that other measures might be more appropriate and it therefore does not issue a warning notice or the appropriate performance standard, the Secretary of State may now just peremptorily intervene. At a time when the Government are anxious to try to devolve responsibilities—the Localism Bill is going through the main Chamber today—it is against the whole spirit of localism that the Secretary of State should be given these somewhat draconian powers.
Amendment 122B is to some extent a probing amendment. It suggests that we want to know, if academies fail in the same way as some schools fail, whether they have to obey the same rules as maintained schools have to. Is it appropriate that there should be intervention in exactly the same way and that they might be closed down? If they are closed down, the obvious solution would be for the local authority to have the power to step in and open a maintained school in its place—a sort of quid pro quo for the shutting down of a maintained school and the opening of an academy. Here we would have the equal and opposite effect. We would like to know a little more about what happens if an academy fails.
The Earl of Listowel
My Lords, I am grateful for the Minister’s response. I certainly recognise the concerns about failing schools that have continued to fail children over long periods. However, I am reminded of something that a young man who grew up in a non-functioning family said to me a little while ago. He said, “I have issues of trust”. It is very hard for families who are struggling to trust individuals or institutions. Their relationship with their school can become very important. I can imagine that it might be enormously disruptive to such families to find that their school is being turned upside down. Therefore, I will listen to the response of the noble Baroness. I am reassured to a large degree by what the Minister said, but I say to him and his colleagues that when you bring about these changes, it can be very upsetting for those vulnerable families.
Baroness Hughes of Stretford
I thank the Minister for his response and I thank Members of the Committee who have spoken on this subject for their contributions. I absolutely agree with the Minister that underperforming schools cannot be allowed to continue underperforming indefinitely. I feel as passionately about that as he does. So do many Members of the Committee, I suspect. However, the key question is: how effectively can we drive that improvement in performance, particularly when underperformance has been persistent over a period? Sadly, it is also generally the case that underperforming schools are not distributed evenly around the country. They tend to be concentrated in areas where local authorities are weak or where there are endemic problems and so on. There is often a concentration of underperforming schools. That issue needs to be grappled with. The route that the Government are taking is different in some respects from the one that we were proposing. The previous Government wanted powers to direct a local authority to act, but not necessarily the sweeping powers that this Government are taking to allow the Secretary of State to make the judgment directly about closing the school. That is a key difference. I can entertain the possibility that there may be a place for the Secretary of State to have that power but, in deciding this in Committee and on Report, we ought to have a much clearer idea of the criteria that the Secretary of State would use to make the decision for direct closure and the kind of circumstances in which those powers would be used.
There are other powers that it may be more constructive to use. For instance, there are powers to intervene directly with the local authority. As a Minister, I did that in a number of local authority areas in setting up performance management boards. Sometimes it was with representation from a Minister, chaired by a Minister with Department for Education officials with independent representation, with experts, with the chief executive of the local authority, with the director children’s services and with head teachers, charged with driving up performance, not in 10 years but demonstrably in one or two years. That method might not be suitable everywhere, but where it is appropriate it drives up performance in schools without the nuclear option of closing local schools with the uncertainty that that creates for parents.
In that system, if maintained schools improve, they will stay as maintained schools. That is another key difference between our vision and that of the Government; we saw a place for diversity in having schools of high standards both in the maintained sector and, where this was necessary to drive up standards, as academies, with the freedoms that academies have. I do not think that is the case here, and my concern, as I have voiced before, is that the different measures taken together in the Bill will actually enable an acceleration of academies simply by diktat when the Secretary of State closes schools. The schools that will replace those schools will by definition be academies, not maintained schools, so I still have concerns.
I saw the Minister and his officials nodding. It would be helpful if it were possible for him to write to me before Report with some idea of criteria and the circumstances in which these powers to close schools and reopen them as academies would be used, so that we could make a judgment on what is on the Government’s mind on this issue. With that, I beg leave to withdraw the amendment.
Baroness Hughes of Stretford
My Lords, the noble Lord, Lord Low, has articulated clear and comprehensive arguments for Clause 42 not standing part of the Bill. I shall make three brief points in support of those arguments.
First, as the noble Lord said, the power of the Secretary of State to intervene in complaints is currently very limited. He is able to address only a very small number of complaints. The 2008 consultation document on complaints made this clear, stating:
“In practice, this means that except where there is a clear breach of a specific duty (for example, a school failing to have a complaints policy or a behaviour policy) there are few occasions when the Secretary of State is empowered to intervene”.
It does not seem very constructive to argue that parents can appeal to the Secretary of State. Let us be clear, we are talking about unresolved complaints. We all agree that complaints should ideally be resolved at the lowest level, with the school, the head teacher or the governors, but where they remain unresolved after going through those processes, it does not seem reasonable to argue that parents can go to the Secretary of State when, in practice, the number and nature of complaints that the Secretary of State can hear in law is very limited. Where would parents with complaints outside that limited ambit go?
Secondly, the Secretary of State does not in practice investigate those complaints in person; they are investigated by civil servants in the department. There is an unhappy record of civil servants making decisions on individual cases whatever their nature. That is understandable because they neither know the detail nor have the local knowledge. We do not see consistency of decision-making across cases which are similar with such a system. It is not good practice for civil servants to make decisions on individual cases, but that is what happens in practice. A recommendation is then made to the Secretary of State, who also lacks any detailed knowledge with which to approve it or not. It is not a very satisfactory system from a parent’s point of view.
Thirdly, because of those deficiencies, an attempt was made, as the noble Lord, Lord Low, outlined, to see whether there was a better way. A pilot was launched whereby parents were able to take unresolved complaints to the Local Government Ombudsman. This started only a little more than a year ago—in April last year. We may well hear from the Government that take-up has been low. The scheme has not been very well publicised and, as the noble Lord, Lord Low, said, we have had little information on its impact—anecdotal evidence shows that it has been rather positive. We need clearer and more reliable information about the impact of the system, particularly parents’ and schools’ views. It seems premature to abandon that new method before we are clear whether it offers a more effective, more efficient and more satisfactory way forward.
If Clause 44 were to stand part of the Bill, we would be left with a very unsatisfactory situation. It was because of the problems with the system of parents going to the Secretary of State that there was an attempt to find another route. We should surely see whether the other system can be made to work more effectively from parents’ and schools’ point of view before we abandon it.
Lord Lucas
My Lords, I found the speech of the noble Lord, Lord Low of Dalston, immensely persuasive. Bullying in schools has been a problem without a solution for a long time, as I am sure my noble friend Lord Elton would agree. It is very hard for a parent who has gone through the procedures outlined by my noble friend in his response to the noble Lord, Lord Low, and not achieved any success to be stuck in a position where their child continues to be bullied and there is nothing more that they can do about it. There is, in effect, nowhere else for them to turn. The experiment started by the previous Government of giving this responsibility to the Local Government Ombudsman must be worth pursuing and evaluating.
I have recent experience of trying out both the department and the ombudsman with a complaint, although not in this area. Someone who lived in Lambeth was referred to me because he had been unable to find a school place for his child. Lambeth had failed in its duty to the extent that, when this man went to the appeal tribunal for places at a couple of schools, Lambeth said, “You don’t need to bother. We’ve found him somewhere”, which turned out not to be true. Not only had Lambeth not found him somewhere but it destroyed the chance that he had of getting his child into a school. I have talked to the department about that. It has been perfectly courteous but ineffective. When I discovered that this was something that the Local Government Ombudsman could take up, I referred my contact to it and it has been wonderful. It immediately put someone on the case and gave him someone to talk to day to day. He feels totally cared for and supported. It is a completely different experience from dealing with a government department. That is no surprise; government departments are not set up to do this. I did not know that the Local Government Ombudsman was as good as this but it has clearly developed an extremely good service.
The other difficulty that I have come across recently is rather from the other side of the fence. I shall read something that was written to me by a local authority that was trying to deal with academies in its area:
“I am concerned that academies may not be complying in full with the provisions of the Pupil Registration Regulations. Some academies have withdrawn from Education Welfare Services, rather preferring to address matters of non attendance ‘in house’, however in certain circumstances they should, in accordance with the Pupil Registration Regulations, inform the Local Authority. For example, when a child has had 10 days or more continuous absence, and in other matters that are of concern to those in the Local Authority charged with safeguarding the welfare of children.
In addition, I would like to seek some clarity with regard to Free Schools and their obligations in keeping pupil registers, publishing attendance policies and advising other agencies when there appear to be concerns”.
Communication between schools and the welfare authorities is vital. If a local authority feels that a school may not be complying with its obligations, what is it supposed to do? Is it supposed to write to the Secretary of State, who is then supposed to chase individual academies? This is not the business of a government department, particularly when there is an agency that apparently does these things so well.
Home education is the other area in which I come across this. There are many people for whom home education is a choice. They prefer to look after their own children and educate them in their own way. However, there is also a large number of people who have been forced into it and have, particularly if their child has SEN, come to the end of their tether with the non-compliance of schools and local authorities in dealing with their children’s problems. To date there has been no good place for them to go. If the Local Government Ombudsman is to offer that sort of resource, it will be enormously appreciated. I could understand abandoning it because it had proved ineffective but to abandon it now is a great mistake.
Baroness Hughes of Stretford
My Lords, I hope that we can deal with this quickly. This clause amends Section 456 of the Education Act 1996, on the regulation of permitted charges, to achieve two objectives—first, to allow a charge for the cost of buildings and accommodation when a school provides an optional extra, and, secondly, to make an exception for early years provision whereby a charge can be made only for teaching staff engaged under contracts for services and allow a charge to be made for employed staff. It is a rather technical issue.
I have a number of concerns about the way in which these provisions might operate. I am very grateful to the Minister for two letters that he sent me, on 21 June and 20 July this year, clarifying the way in which the Government envisage these measures operating. The assurances depend to a large extent on the regulations behind the provisions, which cannot be made totally clear to me today, but I should be grateful if the Minister could put the position on record in her reply, which would at least give me and other Members some assurance about the operation of these measures.
Without delaying the Committee further I ask the Minister, first, to confirm that through regulations the measures will not enable schools to delay entry into the reception class, keep children in nursery classes longer, and therefore charge. Secondly, can she confirm that the measures will not enable schools to charge for any child in reception class, even if they are still aged four? Thirdly, will the measures enable charging only for teaching staff over and above the free entitlement? Fourthly, can the Minister also assure me that there will be some protection for the additional free hours that many local authorities currently provide for disadvantaged and vulnerable children; and, fifthly, that there will be some attempt to specify some concept of reasonableness in the charges that schools can make and how the regulations might define how the charges to parents may be made up so that they are reasonable? If we can get those assurances on record today, I am sure that it will take us forward.
Baroness Garden of Frognal
My Lords, many schools provide high-quality early education provided by parents that is good for getting children ready for school. However, schools can currently effectively offer only the free entitlement—the 15 hours a week, 38 weeks a year—that all three and four year-old children are entitled to. This is because they cannot charge for extra early years education that they provide during school hours for three and four year-old pupils over and above the 15-hours’ free entitlement.
The previous Government took a power in the Childcare Act 2006 to make regulations enabling schools to charge for additional hours that they might wish to offer parents. The Bill, therefore, does not seek a power for schools to charge. It enables schools to reflect the costs of their provision in that charge. It is, in effect, a technical clause. It is about ensuring that charges for optional extras can include a proportion of building and accommodation costs and, for early years provision, the time of qualified teachers.
Why are we proposing this change? Because making school-based early years provision sustainable will create greater choice for parents about the type, quality and flexibility of early years provision that they can take up for their child. We want to enable parents to take up provision above their free entitlement in the maintained sector, if they wish to, as they already can in private, voluntary and independent providers.
Enabling schools to charge appropriately will help them to remain financially viable, but I stress that schools will not be permitted to make a profit from charging and will be able to charge only up to the costs of delivering the provision. I reassure the noble Baroness that that will of course be a reasonable charge and it must be within boundaries.
Furthermore, it will not be permissible in any way for schools to charge for early education that is part of the free entitlement, including—I reassure the noble Baroness on this point, too—the new entitlement for disadvantaged two year-olds, or for reception provision. The Government remain committed to reception classes being free, with full-time provision of 25 hours a week from the September after the child turns four. The noble Baroness referred to the letters from my noble friend the Minister of 21 June and 20 July, which we hope will have given her further reassurances on those points.
There is no ability for schools to charge for education during school hours for pupils of compulsory school age, and there is no ability for them to charge for hours provided to parents for free under the early years entitlement—a measure which the noble Baroness introduced and which we have extended in this Bill. We are committed to ensuring that reception provision is free, and there will be no ability to hold children up in nursery classes, as she feared. Through the Bill, we want to ensure that schools can charge for additional, optional provision in a way that enables them to cover their costs and provides greater choice of provision for the parent and a consistent and high-quality early education for the child.
If the noble Baroness raised other points which I have not covered, I will of course write to her, but I hope that, with those reassurances, she will feel happy to withdraw her objection to the clause standing part of the Bill.
The Earl of Listowel
My Lords, I support the amendment and pay tribute to the noble Baroness, Lady Whitaker, and the noble Lord, Lord Avebury, for their longstanding advocacy for Gypsy and Roma children. I recall the noble Lord tabling a debate on the education of Gypsy and Traveller children 10 years ago.
I am also reminded by this debate that I once taught a nine year-old Traveller boy. What really comes back to me is how enthusiastic and keen he was to be a part of the group and one of the boys. I imagine that many of these young boys and girls want to be a part of a group, and it is tragic that this opportunity to bring them into society is so often lost.
If I understood correctly what the noble Lord, Lord Avebury, said, I was concerned to hear that specialist services for these children may be being lost. Trust is very important. If these services have developed trust with those communities, it is very important to maintain that relationship.
There are also things that schools, if they are well informed, can do. For example, the special experience of Gypsy and Traveller children can be a bonus for the pupils generally. A boy from a Traveller community can talk about the involvement with animals or other activities that his community has and celebrate that with the other children. Alternatively, for example, a head teacher can involve the mother—it would usually be the mother—of a Gypsy or Traveller child. Even if she cannot write, she can help the child with his homework. The head teacher can ask the mother to put a sign by her son’s work to say that that boy sat quietly for half an hour to do his homework. That is her job and she can communicate that to the head teacher. Therefore, it is possible to engage with those parents. It is possible to think about these things in a very constructive way, and I hope that the Minister can give a positive response to the amendment.
Baroness Hughes of Stretford
Before the Minister speaks, perhaps I may ask whether he will address a particular point in his summing up. The point raised by my noble friend is very important in the light of the education system—or lack of an education system, if I may put it like that—that will arise if all the Government’s changes go through. The very important question is: who will be responsible for looking after the very small groups of children who are, by definition, not very visible because they are small in number but are none the less, for all kinds of reasons that noble Lords have identified, very disadvantaged when it comes to taking up opportunities for education? Given that local authorities will not have any locus in local areas if the Government’s objective of the majority of schools being academies and free schools comes to fruition, I should be grateful if, in responding, the Minister could say where responsibility will lie for looking at the achievement, or lack of it, of these small groups of children, working with schools in some way but without the power and leverage to do so. Who will ensure that schools do better by these very small groups of children? In the new world that the Government will take us into where academies are going to be everywhere and will not be focused on disadvantaged children, I cannot see where that responsibility will lie and where the leverage with individual schools to do better by these children will come from.
Lord Hill of Oareford
My Lords, it is clear from this debate—as has often been the case—that promoting the highest possible quality of education for the most vulnerable children in society is a subject dear to the heart of the Committee. We have set out in our schools White Paper, published last year, and more recently in our Green Paper on special educational needs and disability, our overall plans on how we want to achieve this,. These include the pupil premium, which will deliver an extra £2.5 billion a year by 2014 to support the education of the most disadvantaged children. My letter to my noble friend Lord Avebury on 25 August set out the overall the statutory framework and range of measures in place to support vulnerable children. In response to the point made by the noble Baroness, Lady Hughes of Stretford, the White Paper was absolutely clear that the local authority retains its responsibilities for vulnerable children, and the Bill does not affect its statutory duties in any way.
However, the nub of this debate is around Gypsy, Roma and Traveller children, who are of particular concern to the noble Baroness, Lady Whitaker, and to my noble friend Lord Avebury. He is absolutely right that Gypsy, Roma and Traveller pupils continue to underachieve significantly relative to their peers and are still much more likely to leave school without completing their formal education. This year, under one-quarter of Gypsy, Roma and Traveller pupils achieved level 4 in English and maths at the end of key stage 2, compared with 73 per cent of all pupils. At key stage 4, just 10.8 per cent of Gypsy, Roma and Traveller pupils achieved five or more good GCSEs, including English and mathematics, compared with about 55 per cent of all pupils. These are stark differences. Gypsy, Roma and Traveller pupils have the worst attendance of any minority ethnic group and there is a marked decline in enrolment between primary and secondary school level, a point that has been made. They have the highest levels of permanent and fixed-term exclusions.
Local authorities have a key role to play in addressing this issue. They are under a statutory duty to ensure that education is available for all children of compulsory school age that is appropriate to their age, ability, aptitudes and any special educational needs they may have. This duty applies regardless of a child’s ethnicity, immigration status, mother tongue or rights of residence in a particular area.
Along with schools and colleges, local authorities have a range of safeguarding duties for vulnerable pupils, as well as duties to establish as far as possible the identities of those children of compulsory school age who are missing education. We are currently revising statutory guidance to clarify how local authorities can best carry out their duties to identify children who are missing education. I say to my noble friend that we expect to strengthen current references to Gypsy, Roma and Traveller pupils in the revised guidance and I should be happy in due course to share that in draft form with him, the noble Baroness, Lady Whitaker, and anyone else who is interested.
It is also the case that Ministers in my department are working, under the chairmanship of the Secretary of State for Communities and Local Government, with a range of government departments to ensure that the range of inequalities faced by the Gypsy, Roma and Traveller communities are properly addressed. That working group expects to publish before the end of the year a report on how the Government will tackle the issue, including a package of measures designed specifically to raise educational aspirations, attainment and attendance. We are grateful to the work carried out by the Gypsy, Roma and Traveller education stakeholder group, chaired by my noble friend Lord Avebury, for the contributions that it has made so far, and I look forward to working with the group over the coming weeks to develop further plans in that area.
Baroness Hughes of Stretford
My Lords, I am sure that all Members of the Committee are considering these issues because they share with me a desire to improve the opportunity of outcomes for all children, including high-ability children. However, there may well be—I think there is—a difference between some Members of the Committee about the most effective ways of doing that. In this sense, Amendment 124D, to which I am speaking, takes the opposite view to that just expressed by the noble Lord, Lord Blackwell.
Under the Academies Act 2010, a selective school converting to academy status can maintain its selective admissions policies. Amendment 124D would remove the ability for selective schools to maintain selective policies on conversion. It would require any schools converting to academy status in future to have a comprehensive admissions policy upon that conversion.
I shall to cite three arguments in favour of our amendment. The first is on the basis of some of the evidence from international countries that are performing better than we are in education. Secondly, I wish to raise a point of principle and, thirdly, to look at the practical implications of the Government’s proposals on the issue—and whether as a result of the Bill the current ability of schools to retain selection in moving to academy status would lead to an extension of schools with selection policies. I question whether that is what the Government want.
First, in terms of the evidence, particularly from Finland—one of the highest performing countries on the educational spectrum in the western world—it is interesting that the Minister, following a previous debate, sent me a letter talking about the evidence for reform at some length. He cited Finland and some of the attributes of its system, particularly school autonomy and accountability for performance. However, that letter did not in particular mention the important context of the Finnish system, as well as some other systems—for autonomy and accountability. It is a system that the Finnish Government and people take very seriously, whereby schools are comprehensive and that you can achieve improvements in the context of a system in which schools take from a broad spectrum of pupils and overlay on that system powerful mechanisms for autonomy and accountability. That is what produces the substantial improvements that have been seen in Finland. Therefore, if we are going to use evidence—and I support an evidence-based approach to policy—we ought to take all the evidence we have, including that evidence from Finland.
The second point is one of principle. The idea of a selective academy—not just what the previous Government were trying to achieve but what the current Government profess to want to achieve—is something of a contradiction in terms. Under Labour, academies could select only 10 per cent of their pupils—not on the basis of ability but of aptitude if the academy had a particular specialism. We believe—and in terms of what the Government have said to date, I cannot believe that they would not share this view; but I would welcome any contradiction to that effect—that academies should be comprehensive. If a selective school is to have the freedoms of an academy, it should by definition make a commitment to all the children in the local area and not simply cream off those whom it thinks are the most able. It should be committed to driving up the levels of attainment of all students, which means admitting those children whose backgrounds are such that they have further to go in reaching their potential because of some of the barriers that they face. That is a principle with which some Members of the Committee may not agree, but I put it forward to the Minister as a principle that I thought the Government shared.
The third issue is one of practical implication. Academies are their own admissions authorities. Research in this country has already suggested that, without checks and balances, academies have a greater opportunity covertly to select than perhaps we all would wish. Leaving that point aside, however, there must be concern under the Bill that if selective schools become academies it will lead in practice to an extension of selection. Clause 58 will allow selective schools becoming academies to widen the age range of their intake. This could lead to a state education system which allowed selection at primary as well as secondary level. Under the Government’s draft admissions code, popular selective academies can expand without agreement from the local authority or the Secretary of State. I should like the Minister to comment on whether that means that a selective academy could not only expand in size but also, as has been commented on, establish a cluster school elsewhere which would be managed by the head teacher and senior management team and thereby extend selection to a larger number of pupils.
That is the reason for my amendment. I should be grateful if the Minister could respond to the points that I have raised. First, do the Government want to see an extension of selection, or are they neutral about it? Secondly, do they believe that academies should serve the whole community and, if so, why are selective schools which become academies being allowed to retain selection? Thirdly, does not the Minister share my concern that that provision, together with the two elements of the Bill which I have identified, could—however inadvertently on the Government’s part—lead to an extension of selection? Would the Government be happy if that were the case?
Lord Lucas
My Lords, I shall speak to Amendment 126A. The previous Government made a good deal of progress in closing the gap between state and independent schools, to the extent that two or three independent schools crossed back into the state sector. This Government have made considerable further progress in that direction. It is clear that the institution of free schools and the freeing-up of obligations on academies generally will reduce the demand for independent education and bring children back into the state sector. The pressures now imposed by the Office for Fair Access will have a similar effect.
There is a question to be asked of the Opposition. Do they share my ambition to see over time some of the independent sector reabsorbed back into the state sector? If so, how far are they prepared to go to achieve that? It does not seem to be going very far to allow a selective independent school to come back into the state sector as a selective state school.
Education Bill
Baroness Hughes of Stretford Excerpts(12 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Local schools commissioner
(1) A local authority shall appoint a fit person with the approval of the Secretary of State to be the schools commissioner.
(2) The schools commissioner shall promote—
(a) collaboration between schools with the aim of ensuring all publicly financed schools in the local authority area achieve a standard of education set by the Secretary of State,(b) parental confidence in all schools, and(c) fair access to all schools.(3) The Secretary of State shall delegate to the schools commissioner his or her functions in agreement with the local authority which are considered necessary for the schools commissioner to fulfil his or her duty under subsection (2).
(4) The local authority shall delegate to the schools commissioner functions considered necessary for the schools commissioner to fulfil his or her duty under subsection (2).
(5) Notwithstanding any function delegated to the schools commissioner by subsections (3) and (4), the commissioner shall advise admission authorities for schools on—
(a) such matters connected with the determination of admission arrangements, and(b) such other matters connected with the admission of pupils,as may be prescribed.(6) Notwithstanding any function delegated to the schools commissioner by subsections (3) and (4), the schools commissioner shall advise the local authority, head teachers and school governing bodies on—
(a) promoting good behaviour and discipline on the part of pupils,(b) reducing persistent absence by pupils,(c) identifying children missing education and those who are not on a school admission register,(d) the strategy for all children of compulsory school age to receive full-time education appropriate to their age, aptitude and ability and any special educational need,(e) directing a school to admit a child who is not on a school admissions register,(f) promoting parents’ views on admissions arrangements in their area.(7) The schools commissioner will be advised by an advisory board constituted according to regulations which must provide for half the membership to be made up of parent governors but also include representatives of head teachers, teachers, governors, proprietors of Academies and the local authority.
(8) Regulations shall make provision for the meetings and proceedings of the advisory board and the manner in which advice is to be given to the schools commissioner.
(9) For the purposes of this section, a school includes all schools maintained by the local authority and all Academies and City Technology Colleges located within the area of the local authority.”
Baroness Hughes of Stretford
My Lords, I hope that the Committee will indulge me and perhaps give me a little more time than I have taken so far, because this amendment is very important. It is designed to try to get to the heart of the Government’s vision for education. While we have been diligently scrutinising the detailed proposals in the Bill, several noble Lords have reminded us along the way that we also need to lift our eyes from the page, look ahead to the future and ask, “What will the education system look like if all these changes go through?”, and, more importantly, “Will it work better for children and families?”.
We have to understand from the Government what their vision is. Where are they trying to get to and what is the big picture? While Amendment 107A relates particularly to Clauses 34 and 35, on admissions, it is in fact a broad probing amendment that tries to bring together the collective impact of all the measures in the Bill that, taken together, will dramatically change the landscape of the schools system in England. In effect, this amendment asks whether the Government have a broader vision, whether the measures to free up individual schools will add up to a coherent education system and how that will work.
Let us briefly remind ourselves of the broad themes of the Bill. First, the Government want to repeal many of the current requirements on schools and give individual schools the power to decide many issues for themselves—to choose the children they want to admit and whether to collaborate with other schools on children's services—without having to account to any external body except, directly and in theory, to the Secretary of State. Secondly, the Government are dismantling the structures and procedures that currently enable parents, local authorities or other schools to challenge on admissions, exclusions or school improvements while centralising those powers in the Secretary of State.
Lord Hill of Oareford
My Lords, we have already discussed the principles underlying the Government’s education reforms: increasing school autonomy, improving the quality of teaching, and strengthening accountability. Back in 2005, in their schools White Paper, the previous Government set out their vision for all schools becoming autonomous and for the local authority to become more of a commissioner than a provider of education. We are building on that approach.
The Bill makes few changes to the role of local authorities. It is also the case that our approach to the spread of schools converting to academies in last year’s Academies Act was permissive, because we wanted the extent of change and reform to be driven by governing bodies and head teachers of individual schools. The speed of conversion to academy status tells us something about the attitude of schools towards the previous arrangements and their appetite for taking greater responsibility. What has also been particularly striking, as the programme has moved on, is not only the desire for schools to have more autonomy but increasingly the desire to combine that autonomy with greater collaboration.
We are seeing groups of schools forming clusters and chains, building on the collaboration that they have already established and which the previous Government took forward. That is one of the most encouraging developments of the academies programme. We are also seeing early converters themselves becoming sponsors of underperforming schools, with the development of the kind of collaborative work that I think all of us would want to see. While I recognise that the landscape is changing—more rapidly in some parts of the country than in others, it is fair to say—I do not accept the basic premise of the argument that, left to themselves, schools cannot be trusted to act collaboratively and therefore need to be brought under a new set of statutory arrangements.
At the heart of this debate about a local schools commissioner is a difference of view between us and the party opposite about the new schools system. I recognise that the noble Baroness, Lady Hughes of Stretford, moved a probing amendment to get the debate going. However, she seems to want to reconstruct a system that many schools have been choosing to leave. She seems to prefer a more structured approach, applied equally across all areas of the country and prescribed in legislation. The Government, by contrast, believe in a system with autonomous schools led by professionals who want to collaborate and drive improvement locally.
I agree with the noble Baroness about the importance of collaboration. So far, over 160 schools have created 58 new or expanding chain partnerships across the country. We are increasing the numbers of national and local leaders of education to 3,000 by 2014, building on the previous Government’s initiative to provide support to other schools. The national college has now designated 100 teaching schools to start in September, so that the very best leaders and teachers can drive improvements in the quality of teaching in their area and for the next generation of teachers.
Academies also have to be part of their community. Funding agreements require an academy to,
“be at the heart of its community, promoting community cohesion and sharing facilities with other schools and the wider community”.
A recent study from the London School of Economics found that not only had standards in academies improved faster than in other schools but that other schools in their locality had seen results improve—further evidence of the way in which schools, working together and helping to raise standards, spread those benefits more widely.
The noble Baroness, Lady Hughes, rightly asked about accountability. Our approach to that is to increase the amount of data available about schools and to make sure that in future inspections concentrate on the most important issues: what pupils achieve; the quality of teaching and leadership; and that pupils behave well and are safe. These changes apply to academies as they do to all maintained schools.
The noble Baroness, Lady Hughes, mentioned fair admissions. We have already discussed that at some length. Academies must comply with the admissions code and are part of the co-ordinated admissions process run by the local authority. As we have discussed, this Bill extends the adjudicator’s remit to academies, and local authorities can refer any school to the adjudicator if they feel that admission arrangements breach the code.
I accept the noble Baroness’s reproach about my failure to have circulated before now the list of measures in the Bill and how they affect academies rather than maintained schools. I signed it off this morning. I am sorry that I did not get it across before this debate, but we will circulate it later on. From it, noble Lords will see the way in which the measures of the Bill are applied equally to academies and maintained schools in many regards.
I recognise that it is a time of considerable change, but that change is being driven locally by parents, professionals, schools and others with an interest in education. The noble Baroness talked about localism. I recognise that there is an important debate to have on where localism resides, but I would argue that there is nothing more local than a group of local parents and teachers wanting to set up a school for local children and making that provision fit what those children require, whether it is for children with special needs, an alternative provision or for more of a mainstream school. We are driving change from the department to address entrenched school underperformance, which disproportionately affects the most disadvantaged pupils, and I believe that is the right thing to do.
The noble Baroness specifically mentioned children missing education. Local authorities, maintained schools and FE and sixth-form colleges have safeguarding duties under the Education Act 2002. Academies are required to make provisions for safeguarding under the independent school standards and their funding agreements. Under education regulations from 2006, all schools are required to inform the local authority when a pupil fails to attend school regularly. Noble Lords may also know that the Government have committed in the other place to review the Education (Pupil Registration) (England) Regulations 2006 and to tighten up and extend the circumstances in which all schools must inform the local authority when a child is missing school or removed from the register. We are also planning to revise the statutory guidance to clarify how local authorities can best carry out their duties to identify children missing education. So there are clear, statutory duties to support that important and vulnerable group of children.
Overall, many local authorities have welcomed the changes that the Government are taking forward. They deliver the stated aim of the previous Government, which I share, for local authorities to be commissioners. There is growing evidence that the best school leaders and professionals welcome the opportunity to collaborate and drive improvement across schools in their area. We hope that these changes will free local authorities, led by directors of children’s services, to focus on championing the interests of parents and children who most need support. We are working with representatives from all sectors through a ministerial advisory group on the role of the local authority, of which my noble friend Lady Ritchie is a member, to help shape our thinking in this area.
Our aim overall is a freer system in which the best schools and professionals are in the lead and collaborating to improve the education for all children in their area. I do not think that the specific proposal for local school commissioners made by the noble Baroness, Lady Hughes, is the right approach. It would add, as my noble friends Lady Perry and Lady Ritchie said, another layer into the system, which would blur accountability.
The noble Baroness made specific points about admissions, children missing education and accountability. There are mechanisms in place. I recognise that it is a time of change, and I acknowledge her questions, but as the process of change is taken forward and driven by schools, professionals, parents and teachers, we will get to a system that will raise quality and provide more choice for parents, which we all want. Therefore, I hope that she will feel able to withdraw her amendment.
Baroness Hughes of Stretford
I thank the Minister for his reply and other noble Lords for their contributions. I make one or two points in response. I was trying to get Members to think about what the future will look like. Therefore, I have to say to the noble Baronesses, Lady Ritchie and Lady Perry, that in future if the Government achieve their objectives and when most schools are academies—if that occurs—directors of education will have no powers or responsibilities vis-à-vis most of the schools, because they will be outwith the maintained system. There will therefore be no extra layer of anything—indeed, there will be no layers at all—between the schools and the Secretary of State. That was the picture in the future that I was trying to get Members of the Committee to engage with, and the picture from which my concerns arise about what happens particularly but not exclusively to some of the most vulnerable children in communities, who will fall through the cracks of a system in which schools operate completely freely and make decisions on their own. We have had no satisfactory clear view of how that will work in the future.
The Minister said that this Government are building on what the previous Government were planning. We were certainly planning to move into another phase, having established academies in some of the most disadvantaged areas and some of the most problematic schools. However, there is a clear distinction between our vision and this Government’s vision. Ours was a clear role for local representatives and local parents in that system. We can see from this Bill that at the same time as giving schools greater freedoms the Government are dismantling structures and relationships at the local level.
The Minister said that schools are choosing to leave a system with local accountability. Schools may choose that, but that does not mean that it is right. There are key questions to be answered. If schools are choosing to leave that system, is that in the interests of children and parents? Will that achieve the objective of every child accessing the best possible teaching? Will it close the educational gaps between the most disadvantaged children and the rest? It is clear, despite the Minister trying to be helpful, that the Government cannot answer those questions with any clarity. Rather, they are dismantling the current system on the basis of blind faith, not on the basis of evidence through which they can show that the system they are moving to will be likely to achieve those three objectives and be in the interests of children and parents. They are aligning the interests of schools and assuming that that will automatically be to the benefit of children and parents. That assumption is not testable or proven; there is no evidence to support it.
That is not to say that some schools will not choose to leave the system or that all schools will behave badly; many schools will behave with integrity and try to do the best for children. However, not all will. It is likely that the most disadvantaged children will lose out as a result of decisions that schools will take that are not in the interests of children, and parents’ only recourse in that situation will be to the Secretary of State for Education. There will be no one locally to hold the ring and say, “Come on, let’s do better here”. That was the point of the amendment.
The Minister said that he was strengthening accountability, but I cannot for the life of me see how it increases accountability to centralise powers to the Secretary of State and leave nowhere for parents to go at the local level. He also said that he wants local authorities to develop a role as champions of parents and is talking to them about that, but they will be completely toothless champions. They might well champion the interests of parents but they will have no responsibilities or powers when those schools are academies, so I am afraid that after this interesting debate we are still no clearer as to how the system will work locally, particularly when there are problems, when children fall through the gaps, and when schools do not behave well. Okay, most will behave well, but some will not, and families will have nowhere to go when they have problems.
I am happy to withdraw my amendment in Committee, and will return to this matter on Report.
Schools: Funding Reform
Baroness Hughes of Stretford Excerpts(12 years, 10 months ago)
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Baroness Hughes of Stretford
I thank the Minister for repeating that Statement. On capital, some might say that scrapping the most transformational school building programme for decades and replacing it with a survey is not the most convincing evidence of commitment to improving school buildings. However, I welcome the action that the Government are now taking to sort out the mess and uncertainty left in the wake of the Secretary of State's precipitous decision to axe the Building Schools for the Future programme.
High-quality buildings and facilities are indeed essential to high-quality teaching and learning. It is a pity that the Government could not acknowledge what the National Audit Office called the crumbling school infrastructure that my Government inherited in 1997 and the outstanding progress made in rebuilding schools since then. The replacement for BSF, but for up to only 300 schools in the worst condition, is to be private finance. Can the Minister explain the terms of this scheme and what will be the long-term revenue consequences for schools and local authorities of using private sector funding? Does the Minister agree that the full survey of the school estate, to which he referred, should be completed speedily and can he say when that will be published? On the funding for extra school places, can he explain how the allocation of that funding will take account of plans for free schools in the local area and the surplus places that will follow in those areas consequently from having a surfeit of schools?
I turn to revenue, about which the Statement strangely said relatively little. In principle, I welcome the consultation on how best to fund schools and also the decision to consult widely, although with schools breaking up this week they may not feel that they have the full 12 weeks in which to consider this detailed document. The Government say they want to achieve fair and comprehensive reform of the way in which schools revenue funding is calculated. The Minister has also said that similar schools in different areas can receive different amounts of funding and that that is not fair. But does the Minister accept that equal funding is not necessarily fair funding? Does he accept that schools in areas with more social or economic challenges or with more challenging pupils will need more funding in order to give those children a fair chance? None the less, will the move to a national formula ensure that schools with the highest needs will receive more funding?
The Government's proposal to move to a new national funding formula with local discretion is, on the face of it, seductive. It sounds as though it will be simpler and more transparent. However, even a cursory glance at the consultation document this afternoon, which outlines, for example, the proposal to move to three or four funding blocks, the methods for calculating them, the complicated proposal for a new combined area cost adjustment, the fact that local authorities will still receive funding through the formula grant for other education services, to name just a few of the issues, suggests it may not be so simple.
Getting money to 25,000 schools, especially when the Government are pressing as many as possible to come out of the maintained sector, is inherently complex. The devil will be in the detail and the detail will show whether we really end up with a simpler system that schools and parents can understand and support. So can the Minister explain what he expects the outcome to be of moving towards a national funding formula for schools in deprived areas and for schools with higher proportions of children with additional or high needs? With a national formula, what continued role does the Minister envisage for local authorities in ensuring that funding to schools reflects local needs and circumstances? Will the Government now publish the modelling, which they must surely have done, so that we can see which schools will gain and which will lose in the new system?
Indeed, the Minister has acknowledged that changing the system in the manner proposed will result in many winners and many losers, so I welcome the decision not to introduce any changes before 2013-14 and to make transitional arrangements. I hope that those arrangements will include some kind of tapering to ensure a gradual transition to what may be a sizeable change to their budget for many schools. The Government want most schools to come out of the maintained system and become academies and free schools, so the parallel announcement to review academy funding is both necessary and welcome. Does the Minister agree that the funding system should ensure parity of funding between maintained schools and academies, based on need? Does he agree that academies should be subject to the same reporting framework in respect of the public money that they receive?
The consultation proposes three models for academy funding, but gives no bases for respondents to evaluate the different options. Will the Government now publish the data necessary to illustrate what would be the different impacts of those three models? We know that recently the Secretary of State was forced under threat of legal action to agree to a review of funding for academies. Will the Minister update the House on the progress of that review, and how it will link to the consultation that he announced today?
There are one or two notable gaps in the consultation, especially in relation to children with additional or high levels of need, and to post-16 funding. Will the Minister assure the House that the consultation will take account of the responses to the special educational needs Green Paper, as parents of children with special educational needs will have concerns over funding levels as a result of today's announcement? Furthermore, Ministers were silent today about 16 to 19 funding, which is particularly unfortunate as it is the subject of a critical report from the Education Select Committee. Many people are concerned that the changes to post-16 funding and the reductions in funding to school sixth forms could see some forced to close. The Secretary of State has promised a review of post-16 funding. It would make sense to conduct it concurrently with the consultation that he announced today. Perhaps the Minister will comment on that.
Finally, the question of most concern to parents and teachers is how far the Government will protect funding for schools. Despite the claims made today, is it not the case that the Government failed to keep their promise to increase spending by 0.1 per cent in real terms throughout the spending review period? Is it not also the case that simply maintaining a national schools budget at last year's cash level has meant a real-terms cut that many schools are grappling with?
We on this side will work constructively with all parties on the consultation to try to reach the best outcome for children and schools on the funding mechanism. At the same time, we want to see not only fair funding but also sufficient funding to ensure that every child gets the chance that they deserve.
Education Bill
Baroness Hughes of Stretford Excerpts(12 years, 10 months ago)
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The Earl of Listowel
My Lords, it is encouraging to hear that the Government are approaching this in such a careful and thoughtful way. The Secretary of State has made a commitment to look at education systems around the world in order to learn from best practice. I understand that in Finland it is normal for social services and the education system to work in close partnership with each other. Perhaps, if it is easily accessible, the Minister might like to provide some information about this for the Committee, or at least look to see whether what they do in Finland is relevant to what might work best in this country.
Baroness Hughes of Stretford
My Lords, I rise briefly to thank the noble Lord, Lord Laming, my noble friend and other noble Lords for taking this matter up with the Minister on behalf of almost everyone in the Committee after the earlier debate on this subject. It is clear that they were speaking for all of us. On the withdrawn amendments of the noble Baroness, Lady Walmsley, I think that the proposal is a good idea and may well sit better in the health Bill when it finally comes. However, the duty on schools to co-operate would require them not only to co-ordinate with the local health authority at the strategic level, but also in relation to individual children and the packages that they need, whereas the well-being boards will look at services more broadly. The duty to co-operate is still necessary in order for schools to work with other agencies in relation to individual children.
I thank the Minister for his willingness to discuss this issue. All noble Lords in the Committee believe that were it in his gift, I am sure that the matter would not be proceeded with at this time, but obviously and rightly the Secretary of State has to make the decision. I therefore ask the Minister to give us an assurance that we will be clear about the Government’s intentions before we get to Report. Clearly, if the Government decide to proceed with this, Members of the Committee will want to think about their approach at the next stage.
Lord Hill of Oareford
I will be brief. I can say yes to the noble Baroness, Lady Hughes. We will be clear before we reach Report; we need to be. I have given that undertaking to the noble Lords I met with and I am happy to repeat it. I am grateful to the noble Lords, Lord Rix and Lord Laming, for what they said. I was glad to have the chance to meet them and we will meet again—I will not finish that line.
I will have to follow up the point made by my noble friend Lord Elton and write to him. Ditto, I am not sure about the position in Finland, but we will look into it.
Again, I am grateful to noble Lords for meeting me. I have undertaken to discuss this further, which will probably be in September but before the Report stage. On that basis, I hope we can move forward.
“( ) In section 84 (code for schools admissions) in subsection (2) after “other matters” insert “which ensure fair access to opportunity for education”.”
Baroness Hughes of Stretford
My Lords, I stand to move Amendment 100A and speak also to Amendments 101A, 103ZA and 107B in my name.
This is a very important clause in this Bill and it proposes to introduce a number of changes to admissions. I am sure we all agree that admissions and the way children are admitted to school really matters. It matters in ensuring that everyone gets fair access to a good education and that matters in terms of helping to improve social mobility and ensuring every child gets the best life chances, regardless of their background. The international evidence upon which the Government are drawing to support their moves to give schools much greater freedom also makes clear that, while those freedoms can improve levels of attainment in schools, they only do so in the context of a system that is both accountable and also in systems which have an inclusive admissions system, meaning that the schools have a comprehensive intake across the ability range. That is the balance of the international evidence—not freedoms on their own but freedoms in the context of accountability and inclusive, comprehensive intakes for all schools.
The Secretary of State is making a number of changes with this clause which in our view add up to a significant weakening of the admissions system from the point of view of parents and children. This causes me concern that it will be harder for parents and children to get fair treatment. First, the clause removes the powers of the adjudicator to direct a school or local authority to change its admissions practices when the adjudicator has judged that they are in breach of the admissions code. Secondly, it removes the power of the adjudicator to choose to look more widely at admission practices of a school or local authority when the adjudicator receives a specific complaint. Thirdly, the clause abolishes the local admissions forums which bring parents and others together to resolve issues locally. That prevents all complaints from going to the adjudicator.
I shall come on to the amendments in relation to the adjudicator in a moment. First, I want to concentrate on ensuring that admissions are fair in the first place—that is that children have fair access to good education and training, whatever their background. Amendments 100A and 107B are similar in effect to Amendment 103 in the names of the noble Baronesses, Lady Walmsley and Lady Brinton, and would place a duty on the Secretary of State to ensure fair access through the admissions code.
We want all children to be able to access schools that are good or better. Schools that are highly performing are often very popular and it is crucial to ensure that access is fair so that children from all backgrounds can benefit. With the fragmentation of the education system that will follow if this Bill becomes law in its entirety, it is more important than ever before that systems are in place to ensure that those admissions are fair.
Where a school is an academy, it is its own admissions authority, setting its own admissions arrangements, hopefully within the admissions code. For community and voluntary controlled schools, the local authority is the admissions authority. Given the Government’s direction of travel towards making ever-increasing numbers of schools into academies—already more than a fifth of secondary schools are academies—it is not hard to envisage a future in which most or all of our 20,000 schools are their own individual admissions authorities.
I cannot get beyond thinking that this means that parents and pupils will face a baffling and utterly opaque situation, with all the schools in their area operating different admissions criteria. Parents who are most articulate or who know the system can perhaps work it to their advantage; others—for example, those for whom English is not a first language or who are less engaged in the education system—will lose out. When the Minister replies, can he please explain in detail how a parent would navigate such a system? Will not parents inevitably apply to as many schools as they can, and will not that in itself cause gridlock, with schools processing many more applications than they have places? Will not parents be in limbo, with no one co-ordinating that process? I am informed that in many local authorities this is already the case. Parents whose children currently do not get into their preferred choice of school are at a loss to know what to do and the local authority cannot do anything to help.
It may be a good thing to give more freedom and autonomy to schools but, as I said earlier, with that freedom should come accountability and safeguards. Without those safeguards there is a risk that highly localised admission arrangements could result in what Barnardo’s has described as “selection and segregation”, with some children missing out unfairly.
Last year’s schools White Paper supported a local authority role to ensure fair access but, as this clause would get rid of the duty to have an admissions forum, the Government are abolishing the mechanism to enable local authorities to do that. These amendments would ensure that the Secretary of State had an overarching duty to ensure fair access to education and training.
The new draft admissions code uses the word “fair” 26 times, including the line:
“The purpose of the Code is to ensure that all school places for maintained schools … and Academies are allocated and offered in an open and fair way”.
It is good to note the Government’s commitment—at least, on paper—to drive fairness, but if that is the case it would surely follow that the Government would be keen to support these amendments, which give the Secretary of State a statutory duty to ensure that admissions are fair.
Amendments 103ZA and 101A would respectively reinstate the power of the adjudicator to direct admissions authorities—that is, academies and local authorities—to change their policies where they had been found not to be in compliance with the admissions code. Amendment 103ZA goes further. It would require the adjudicator to put the views of parents at the heart of his decisions in exercising his powers.
Currently, as I said, the school adjudicator can specify appropriate modifications to the admissions arrangements, whether they arise from objections or not. He can protect those modifications from being changed back for up to three years, and the admissions authority in question can be made to comply with the adjudicator’s decisions forthwith. Clause 34 would remove all those powers. At the moment, the school adjudicator steps in to challenge and remedy non-compliance with the admissions code. Surely, if the Government are serious about fairness in admissions, a control needs to be in place to ensure that, where admissions criteria or processes are not fair, they are identified and corrected. There is a need to ensure that somebody is responsible for seeing that they are corrected and it should not simply be left, as I feel sure the Government will argue in a moment, to schools to do that of their own volition without any need for any monitoring. Last year, 92 per cent of complaints heard by the school adjudicator were from parents. Where these complaints were upheld, the school adjudicator could direct the admissions authority to change. As I said, under the Bill that process will change.
In one sense, the Bill is also contradictory. On the one hand, it extends the right of parents of academy pupils to go to the adjudicator and lets parents from anywhere—not just the school in question—to make a complaint. On the other hand, it removes the school adjudicator’s powers to do anything to overturn malpractice. Therefore, under the Bill more parents can now complain to the school adjudicator but he or she can do less as a result of the Bill. I just wonder whether the Minister thinks that this will empower parents or do the reverse.
Clause 34 also abolishes admissions forums—the local bodies made up of parents, local authorities and schools—which oversee the admission arrangements in an area. I cannot see any valid reason for cutting parents out of that process of having some kind of say on the way that admissions are handled throughout an area. Parents will have nowhere to go except to the school adjudicator, whose powers are being seriously diminished. I beg to move.
Baroness Walmsley
My Lords, I have Amendment 103A in this group. What concerns me is that someone should have oversight as to whether fair access is going on. I am most grateful to the Bill team for sending some notes about how the school admissions and appeals code works and how the Bill seeks to change that. I was very exercised about the fact that, as the note states:
“School admission arrangements are set two school years before pupils enter the school by the schools’ admission authority, in line with the Admissions Code”.
Of course, the authority must have consulted about those arrangements beforehand. That makes it very difficult for parents. If they apply to several schools two years before their child moves schools, they then have to scrutinise the admissions arrangements of all the schools to which they apply in order to make sure that they are happy with those admission arrangements. This is not the case just under the Bill, but is the case now, before the Bill goes through. The arrangements are very difficult for parents to navigate.
The note also points out that:
“Parents, local authorities, other schools or the Secretary of State who have concerns about the admissions at a maintained school can ask the Office of the Schools Adjudicator … to investigate”.
I very much welcome the fact that this power is being extended to the parents of children who want to go to academies. However, the problem is that many local authorities are not doing the job of scrutinising admission arrangements terribly well. It is therefore left to parents to make the complaints and appeal. If all the schools in the area are academies, parents have to look at a whole lot of different sets of arrangements.
The note that the Bill team kindly sent us points out that:
“Local authorities will still be required to report annually on local admissions”.
The Bill states that they do not have to report to the adjudicator, but they will have to report. Therefore, my first question to my noble friend is: to whom do they have to report? It does not say in the note. However, I have a clue here in the way that the note continues. It states:
“The Chief Adjudicator will still be required to report to Parliament each year and, as now, base his findings on a range of sources, including having access to local authority reports from their websites. The local authority reports will still focus on key issues for local parents and others with an interest in access to local schools”.
My question, therefore, is: does the chief adjudicator or any parent just have to go to the website of the local authority to find out what the arrangements are and whether there have been any appeals, or what the problems are? The whole system is not at all parent friendly. It is not access friendly or social mobility friendly, given how important social mobility through education is to my Government.
What I want to do in Amendment 103A is give a reciprocal duty to the Secretary of State to take this information from the chief adjudicator, who is reporting to Parliament, and act on it if he identifies trends of injustice happening, perhaps across the country. The difficulty with the proposed arrangements is that any adjudicator looks only at the appeals in his own area. Let us be clear that we are not talking about appeals from parents who did not get their child into a school; we are talking about appeals being made 12 months before parents even try to get their child into a school, and two years before the child goes there—or not, as the case may be. These are appeals against the nature of the arrangements.
If the adjudicator can only look at arrangements in his own local area, who is going to look at trends? For example, an education provider may have a lot of appeals against the admission arrangements in one part of the country, another lot in another part of the country, and yet another lot in a third area. The adjudicators in those three separate areas can only see the problems brought to their attention in their own areas. Who is going to identify that there are trends of injustice in that particular chain of education providers? It is important not just to have, as the Explanatory Notes tell us, a requirement on the chief adjudicator to report to Parliament each year. We need a duty on the Secretary of State to take the information and ensure that the arrangements his department have in place are providing fair access for children all over the country, no matter what sort of school they go to.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his response and I also thank other noble Lords who contributed to the debate. As everyone has said, the issue of admissions and how schools make decisions when they are oversubscribed is incredibly important. We all share aspirations regarding fair access, particularly so that children from poorer backgrounds have the opportunity to get the best chances by going to good schools.
The noble Baroness, Lady Walmsley, raised the question of the reports that will still be required by the local authority and the adjudicator. They are important and she raises a significant question about who will look at those reports in the round across the country and come to a view about any further changes that may be necessary in the light of how schools behave. It is very important to have that perspective across a whole range of areas. However, the reports will not help parents at the time. They will be too late for parents who want to complain about the way in which a school conducts itself, necessary though they will be for that broader perspective. The noble Lord, Lord Rix, alerted us to the possible consequences for disabled children, and that remains a concern for us.
The contribution of my noble friend Lady Morris was characteristically powerful and crisp. Her question about what the Government would put in place of the school adjudicator and admissions forums has not really been answered, other than the Minister saying that he does not feel that these changes are as significant as some of us believe.
There are three principles embedded in this issue, as there are in other parts of the Bill. The first is: what are the Government doing in relation to the balance between the opportunity for parents to constructively challenge the system and the power of schools to make determinations across a whole range of issues? As elsewhere in the Bill, what we are seeing here is a shift in the balance away from parents and local communities towards individual schools. That balance will be tipped further as many more schools become academies with the power to determine their own arrangements. Several noble Lords have raised the point, but we have to keep coming back to it because we are not talking about the system as it is now but how it will be in the future. That shift in the balance of power, if you like, is significant and reflects what we are also seeing in relation to exclusions policies and the power to complain to the local commissioner, which we shall talk about later. The Bill shifts the balance in a number of important respects, and that is a matter of great concern.
Secondly, I need to ask if the following is a reasonable principle. A situation can arise in which the schools adjudicator may have decided that a particular school is operating its admissions contrary to the admissions code. The school is doing what my noble friend Lady Morris said schools often do: it is behaving badly for reasons we understand. In those circumstances, the school adjudicator decides that the school has not complied with the admissions code, but what the Government want to institute is that it will be for the admissions authority to decide what action needs to be taken in order to implement the adjudicator’s decision. I want to raise the question of whether it is reasonable, when an admissions authority is found to be knowingly contravening the admissions code, that it is for the school to decide what action it needs to take in order to comply. I cannot think of another situation where, if an organisation is doing the wrong thing in terms of lack of compliance, it is for the organisation itself to decide what it needs to do to put it right. It is a principle I cannot relate to.
Thirdly, I think I got the Minister’s words correct when he said in his summing up that the schools adjudicator will be looking, as he does now, at all school admissions arrangements and following them up. I wonder who will do that in the future, particularly when many more schools become academies and thus their own admissions authorities. Is it to be the Secretary of State? Are we really being told that the Secretary of State will have the capacity to look closely at the admissions arrangements of tens of thousands of academies across the country; that if they have been admonished by the schools adjudicator, the Secretary of State will check that their admissions practices comply with the code and follow up in detail that they have done what they said they would do? Are we really saying that without the schools adjudicators—it is not just one, but teams covering the whole country—the Secretary of State will be able to ensure that schools are complying with the code? I do not think so.
Despite the Minister’s genuine attempt to reassure us, I am afraid that we may well return to this issue on Report, but for the moment I beg leave to withdraw the amendment.
“(1B) Subsection (1A) shall also apply where a local authority in England sub-contracts out the provision of school meals.”
Baroness Hughes of Stretford
My Lords, I shall be very brief, and I am grateful to the Minister, who has written to me on this matter. My amendment simply sought to make sure that the provision in the Bill relating to charges for school meals included situations where the local authority was contracting out the provision of the meals as well as providing them by directly employing people to cook them. The Minister has assured me in a letter that that is the case. I just want to get that commitment on the record. It states:
“Sections 512ZA and 533 of the Education Act 1996 provide powers for local authorities and governing bodies to charge for school lunches—they are still responsible for this if they contract out the delivery of the meals. Clause 35 of the Education Bill will not change this, so all school meals, whether delivered by a contractor or by the local authority or governing body will be covered by the clause”.
On that basis, I will not move the amendment.
Education Bill
Baroness Hughes of Stretford Excerpts(12 years, 10 months ago)
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Baroness Hughes of Stretford
Amendment 85A and Amendment 86B, in my name and that of my noble friend, relate to Clause 24. Among other things, the clause transfers some of the functions of the Qualifications and Curriculum Development Agency to the Secretary of State—principally, those functions to do with the approval of attainment targets and the development of the national curriculum and supporting materials. Having already debated the demise of a number of non-departmental public bodies and outside agencies in the course of the Bill, noble Lords may think that, among the many important issues concerning us, it is not a priority to take up this issue with the Government. This is not simply about saving another quango. It is important to understand what the process will be for changing the national curriculum if the QCDA or some other similar, independent body does not exist—as will be the case if Clause 24 is approved unamended.
The argument deployed in the other place in support of the abolition of the QCDA was that, to quote Nick Gibb,
“responsibility for the curriculum has always rested with the Secretary of State, both under the previous Administration and this, and nothing is changing as far as that is concerned. The QCDA simply acted on behalf of Government in advising and helping to design the curriculum and, as such, no functions are transferring from the QCDA to the Department”.—[Official Report, Commons, Public Bill Committee, 24/3/11; col. 642.]
This is a partial and one-sided claim. Most importantly, it fails to acknowledge the very important element of independence and transparency, if not to the final decision which the Secretary of State of the day will take but to the process of review, and of recommendation and advice to the Secretary of State that ought in my view to precede any changes to the curriculum. There has in fact been an unbroken history of statutory advisory bodies on such matters since the Board of Education Act 1899. The first specific statutory NDPB to advise on the curriculum and assessment was established under the Education Reform Act 1988. Since then, this role has been continued by one such body or another—and for good reasons.
In 1988, in the debate on the establishment of that first statutory non-departmental body, one of the most respected educationists of the 20th century, Lord Alexander of Potterhill, drew an analogy with the role of the national curriculum in Germany in 1935 in establishing Nazism. This may be an overly dramatic analogy for the House of Lords in 2011, but the independence of advice on curriculum and assessment has always been an important point of principle for this House in its debates. Current Ministers are prepared to change or influence the curriculum without the transparency of that independent advice or evidence. For example, noble Lords may be aware of the systematic change that has occurred in the guidance to primary schools, in which every reference in the text to “phonics”, introduced by the previous Government, has, without discussion, been changed to “synthetic phonics”. Also, the Government’s unilateral introduction of the prescriptive EBacc shows unusual levels of willingness to interfere.
This clause opens the door to any future Secretary of State directly to change the national curriculum in a way that is either politically motivated or, more likely, implements the pet theories or hobby horses of Ministers. Again, there is concern that we are already beginning to witness that, with views being expressed that, for example, history should be about the rote learning of Kings and Queens and their dates, and in the view of the current Minister for Schools that education should principally be about core knowledge—and core knowledge as he defines it. I am not saying that those are not valid views—they may indeed be valid—but they are contested by a wide range of views in the profession. That contest and debate about what is important ought to be transparent during any process of review.
Amendments 85A and 85B would try to ensure that the Secretary of State must demonstrate that the process of review of the national curriculum is independent of government. That would provide assurance to parents and pupils about the content of the curriculum. Amendment 86 tabled by the noble Baroness, Lady Walmsley, and the noble Earl, Lord Listowel, who cannot be here today, would require an advisory board to ensure some independence. In their amendment, they are trying to reach the same point.
The department issued a statement which, I suspect, was meant to allay our fears, but it compounds them. Although the Secretary of State of the day will make the final decisions about the national curriculum, what matters is the process of consultation and review—its comprehensiveness, impartiality, scope, transparency, the independence of the analysis of the responses, and the recommendations then made to the Secretary of State, who may or may not accept them. Unless the process of reviewing consultation is independently conducted so that people can be assured that it is comprehensive and takes into account all the views, and that someone independent of government is trying to make sense of it to formulate an analysis and recommendation, then following the demise of the QCA with no other body taking its place, all that I have mentioned would be under the control of the Secretary of State and civil servants. They would decide who to consult, which evidence was reported publicly and the conclusions to be drawn—and all potentially supporting the decisions that the Secretary of State originally wanted to make.
I contend that that cannot be right. Whether it is the QCDA or another body, surely an independent body must be in charge of the process of consultation. The results will then rightly be handed to the Secretary of State of the day, who will make the decision and be accountable for them. It is important that everyone—all of us and the parents and public— can see the basis on which those important decisions are made.
I will draw another analogy. It occurred to me whether we would ever think about doing this as regards health. I wonder whether, if there were a review of the best and most effective treatments for cancer, we would contemplate giving the whole process to the Secretary of State and to officials in the department, rather than to a representative body of professionals and others to form an independent evaluation of the efficacy of treatments and make recommendations to the Secretary of State. We so easily seem to slip into the assumption that with education we can do things that we would not dream of doing with other professional bodies. This point has been raised before. I ask the Minister to comment in his summing up on the points I have made, but also to explain how the Government can justify this degree of control over this process by an elected politician. I beg to move Amendment 85A.
Baroness Sharp of Guildford
I have been asked by my noble friend Lady Walmsley to speak in support of Amendment 86, which is in her name and that of the noble Earl, Lord Listowel. By laying this amendment, we wish to reiterate the importance of the Secretary of State having the benefit of independent advice on changes in the national curriculum. This picks up the points which have just been made by the noble Baroness, Lady Hughes.
My noble friend Lady Walmsley is very grateful indeed to the Bill team who have briefed her about the processes taking place, and above all about the transparency that currently exists between the Secretary of State and the QCDA, and the fact that these will remain under the new proposals. However, the note that the team provided says:
“Following the passage of the Education Bill, the Secretary of State will remain responsible for making proposals to change the national curriculum and will still be able to ask another body to advise him if he wishes to do so”.
It is the phrase “if he wishes to do so” that bothers us from the Liberal Democrat stance. We would like to ensure that the Secretary of State always takes advice from experts on these matters. As we heard last Monday, the curriculum is vital, and other countries are not as fixated as we are on what exactly is taught. The high level of prescription in this country goes somewhat counter to the claims that teachers are trusted as professionals. In other countries, the design of the curriculum is very different from the one that seems to be emerging in this country when we look at the remit for the expert panel which are to advise the Secretary of State.
In Singapore, for example, core values are emphasised. These are self-awareness, self-management, social awareness, relationship management, and responsible decision-taking. One cannot imagine all of this being delivered without the compulsory teaching of life skills, and indeed if we look in detail, this is exactly what we find: at the core are things like health education, PSHE, citizenship, global awareness and physical education. Surrounding these are knowledge skills—which include languages—maths and science, and, lastly, humanities and the arts.
In New Zealand, the key competencies are critical thinking and problem solving, using languages, symbols and texts, managing self and relating to others. In Australia, there are three core interrelated strands which include heath and physical education, personal and interpersonal development and citizenship interwoven with subject knowledge and cross-curricular skills. Indeed, thinking processes are included in nearly all these curriculums, and these are three very successful education systems which I think we can learn from.
However, none of these issues seems to emerge in the remit for the expert review panel; it mainly talks about knowledge and facts. We would like to know how the panel’s remit has been arrived at. The note from the Bill team says that the remit is always very important, and we can well believe that. But looking at it, we rather doubt whether what comes out will be anything like the curriculum of those very successful countries. This is one reason why this particular amendment has been put forward.
Baroness Howe of Idlicote
Could we all have a copy of the letter explaining how creationism is prevented being taught?
Baroness Hughes of Stretford
I thank the Minister for his response and all noble Lords for their contributions to this important issue. The point raised by the noble Lord, Lord Willis, is extremely important and reflects one of the constant challenges in the Bill. We are debating proposals for change, many of which will not apply if the brave new world in which every school is an academy comes into being. It is an issue that I want to raise later in relation to admissions. In response to the Minister’s offer to provide a letter specifically in relation to creationism, perhaps it could be sent to all noble Lords so as to address the broader question raised by my noble friend Lady Morris of Yardley. Precisely what control does the Secretary of State or anyone else have over other potentially unwanted developments in the curriculum at an academy? It might be some other obscure and unusual development, so it would be good to know what controls are in place.
The Minister acknowledged the point that decision and accountability rests with the Secretary of State, and I perfectly accept that. The point at issue here is the process that leads up to that. The Minister has said that the Secretary of State, not the QCDA or some replacement for it—none of us is defending any particular body; we are talking about the process in principle—would have responsibility not only for the final decision but for the process of consultation. While the Minister has given some assurances that the Secretary of State will consult with the three groups that the QCDA now has to consult—the local authorities, governing bodies and teachers—beyond that, the parameters of the review will be determined by the Secretary of State and not by an independent body. Therefore, any academics which the Secretary of State chooses to include in the process of review beyond those three groups can simply be those academics which support the view that the Secretary of State starts off with. While it may be of some assurance that the written submissions may be published at the end of the process, it will be too late for someone with alternative views to be consulted.
Officials sent round a note on how the new process would work. I do not know if every Member received it, but my noble friend and I did. It states that beyond those three groups which have to be consulted on a statutory basis, the Secretary of State will,
“need to give notice of the proposal to any other persons with whom he thinks it would be desirable to consult”.
The difference that we can all recognise is that at the moment the range of additional people is decided by an independent body, not the Secretary of State who has to make the final decision. That is a crucial difference.
There is another crucial difference at the end of that process. Whereas the QCDA at present must arrange for a full report to be published, the advice that we are given by officials is that,
“After the consultation has ended, the Secretary of State will consider the responses and publish a summary of the views expressed and a draft of the regulations”
that he wants to bring forward. In other words, it is again in the gift of the Secretary of State to decide what to publish and what to reveal about what was said during the consultation process. That is not an acceptable process in this day and age, and there needs to be some division in terms of the independence of the consultation, the analysis, the recommendations and the final decision of the Secretary of State. We may return to this matter on Report but, for now, I beg leave to withdraw the amendment.
Baroness Wall of New Barnet
My Lords, I will speak to the debate on whether this clause should stand part of the Bill on behalf of my noble friend Lord Knight, who regrettably has been detained outside London. He sends his apologies. I shall be brief. First, I shall explain the background of diplomas from the point of view of my personal experience with the engineering diploma. No one would dispute that it has been exceedingly successful. The drive for diplomas came from employers who, certainly in the engineering industry, were keen to have the option that the diploma provided. When we talked about careers advice earlier, we touched on the fact that teachers tend to steer pupils down the academic rather than the vocational route. The diploma provided an answer to that because it offered the option to go either way and cross over at various different stages.
My question is this: why do the Government feel the need to repeal the entitlement to these diplomas? It would be disingenuous not to say that, so far as the engineering diploma was concerned, we ran into some issues around what it might mean for other areas of the curriculum, in particular for A-levels. However, employer demand overall—I think it is the right word to use—was very encouraging, and certainly the sector skills councils, which were heavily involved in the diplomas, approached them with great enthusiasm. Why are they being withdrawn when they were proving to be hugely beneficial and provided one of the answers to the many questions raised in the debate on the provisions of Clause 27?
Baroness Hughes of Stretford
I rise briefly to support my noble friend. We have heard a lot from the Minister and his noble friend about burdens and requirements on schools, but as I am sure he knows, the entitlement was not designed so that every school had to provide the whole range of diplomas. Within an area, however, a young individual was able to access all of them. I am looking at this from the other end of the kaleidoscope, if you like; it was not a burden on schools but an entitlement for a young person. They could study for a diploma somewhere accessible in their local area. Therefore I agree with my noble friend that it seems perverse and unnecessary of the Government to repeal this entitlement. If there is a genuine urge to achieve parity of esteem between vocational courses and academic subjects, it is hard to understand why this clause has been included in the Bill in the light of everyone’s desire to achieve parity.
Baroness Garden of Frognal
Clause 28 is the first of two clauses related to the diploma entitlement. This clause removes the duty on local authorities in England to secure the diploma entitlement for 16 to 18 year-olds. The provisions being amended are not yet in force.
High-quality vocational education, just as much as academic education, is crucial to improving England’s educational performance. In that, I am in total agreement with the noble Baronesses, Lady Wall and Lady Hughes. That is why my right honourable friend the Secretary of State asked Professor Alison Wolf to carry out her review of vocational qualifications. Professor Wolf published her report on 3 March. In it, she found some areas of great strength. Places on the best apprenticeships, such as those provided by Network Rail or Rolls-Royce, are highly regarded by employers and more oversubscribed than the most desirable course at the best university. There are excellent qualifications available, providing clear routes for progression into full-time employment or further study in higher education. However, these examples of excellence do not add up to an excellent system and are too often provided in spite of rather than because of the structures that Government have created. The diploma entitlement is one such example where a focus on structure and process has been taken too far.
As I have said, the provisions being amended here are not yet in force. Were they to be implemented as originally intended, they would place a duty on every local authority to secure access for 16 to 18 year-olds to all 14 diploma subjects at all levels, regardless of local needs or any other educational priorities. I reassure noble Lords that this clause does not remove diplomas or any of their constituent qualifications. Nor does it prevent providers of education to 16 to 18 year-olds from offering diplomas if they so wish. I entirely agree with the noble Baroness, Lady Wall, that the diploma in engineering has been the outstanding success of this particular qualification. We cannot say the same about the rest of the range of diplomas that were on offer.
The Government believe that schools and colleges should not be obliged to offer every diploma. They should be free to decide which qualifications to teach, according to the needs and aspirations of their students. Indeed, the Association of Colleges has said that it has always been uncertain about the diploma entitlement and that it has,
“always wanted greater freedom for colleges to offer courses and qualifications which best meet the needs of young people”.
The Association of School and College Leaders has welcomed the removal of the diploma entitlement, saying that,
“it was not practical to offer all lines to all students”.
Edge, which has done so much to promote vocational education, has said that,
“it was always going to be difficult to deliver the entitlement, especially in rural areas”.
Following Professor Wolf’s review of vocational education, we are embarking on a substantial programme of reforms. We have already confirmed that some valued vocational qualifications will be funded for teaching in September 2011. We have announced that industry professionals and FE lecturers will be allowed to teach in schools. We have clarified that schools and colleges are free to offer any vocational qualification offered by a regulated awarding organisation. By removing the diploma entitlement, we are ensuring that schools and colleges are free to consider which qualifications—academic or vocational—meet the real needs of their students, enabling them to progress into further study or a job. I repeat: this clause does not remove any diplomas or other vocational option for young people. It removes a bureaucratic and burdensome requirement on local authorities, schools and colleges.
Lord McAvoy
Very briefly, in response to the Minister, I have not said much different from my noble friend Lady Massey, so it seems to me a strange distinction that she is making. But if it is the will of the Committee that I shut up and sit down, tell me. It is? That is fine.
Baroness Hughes of Stretford
I am not going to sum up on what has been a wide-ranging debate; I just want to make a quick comment. First, I want to put on record my support and that of my noble friend for the amendment on PSHE in the name of my noble friend Lady Massey, and those in the name of the noble Baroness, Lady Walmsley. Secondly, I was disappointed that such provisions disappeared from our legislation in the wash-up before the general election, because we were proceeding with this. Thirdly, these amendments appeared in our legislation following a wide-ranging review that my noble friend Lord Knight conducted over a long period and which involved all the faith schools, other schools and lots of interested parties. It reached a remarkable consensus on the way forward. Provisions similar to these amendments appeared in our legislation. I should like to ask the Minister: given the progress that was made, what else could the review that this Government are now carrying out possibly be looking at? Could they not move a little quicker to get these provisions into legislation, given that that work was already completed?
Baroness Benjamin
I totally agree with my noble friend Lady Walmsley and I support her amendment and the amendment of the noble Baroness, Lady Massey. We need to teach our children to develop social and interpersonal skills and, most of all, to help them to understand what unconditional love is. We have talked about sex, relationships and family life, but lots of children do not know what true unconditional love is. They also need to develop a kind of strategy whereby they can think for themselves. Helping them to develop interpersonal and social skills will go a long way towards achieving that. That is what the amendment is all about.
Education Bill
Baroness Hughes of Stretford Excerpts(12 years, 10 months ago)
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Lord Lucas
My Lords, I shall speak to Amendment 74 very briefly because apparently the Government have today come forward with some guidance on the subject, or at least a firm view, which I would very much like to hear before I take up a lot of your Lordships’ time telling you what my opinions are based on what the situation used to be.
I find it ridiculous that the schools I have used and been involved in will not put a plaster on a child’s knee when it has hurt itself and will not comfort a child who has been bereaved because they are frightened. I entirely understand why they are frightened. As soon as a complaint of any kind is made, the schools feel compelled to cast the teacher adrift, to throw them out to the local social workers. If they get on with them well, that is fine—then there is a pattern of dealing with the problem which is well understood. But in many cases they do not; in many cases there is not the necessary degree of trust and understanding, and under those circumstances schools choose to protect their teachers, which I entirely understand.
I understand that the Government have developed a position on this that they can tell us about and it might help us all if the Minister told us where they find themselves so that we can then have at them in the knowledge of where we are now rather than where we were yesterday. I beg to move.
Baroness Hughes of Stretford
My Lords, I want to raise an issue on the back of this amendment and ask the Minister to reply to it. More than a few members of the Committee were very concerned to see a report in the Telegraph this morning that the Government have issued what they call in their press release the,
“final, clearer guidance for teachers”,
on how they should deal with bad behaviour. This final, clearer guidance includes and enumerates all the issues that we debated not so long ago, upon which a vote has not been taken, as we are in Grand Committee. Therefore, I contend that there is as yet no final resolution of this House, nor of the other House, on these matters. I feel that this is precipitous in the extreme of the Government and quite discourteous to the House. I fail to see how final guidance can be issued which refers to matters that we have yet to decide upon.
Baroness Garden of Frognal
My Lords, it may help the Committee if I speak at this stage. According to the news, this guidance appears to be coming out at the same time that we were discussing these matters in Grand Committee. But this consultation ended in May, so the guidance has been published on the back of that. It relates to the current law, not the legislation before us at the moment. Again, the timing seems curious, but it is a consequence of it referring to another law rather than the Bill.
Let me speak briefly about what is in the guidance. We will ensure that Members of the Committee are issued with the guidance which has come out today to help frame our further discussions.
I am grateful to my noble friend for giving us the opportunity for this debate. We agree with much of his amendment. Of course a teacher should be able to comfort a small child who has fallen over or show them how to hold a violin bow or a tennis racket. The notion of no contact seems to me to go against our instincts as humans and, indeed, as teachers. There is nothing in law to prevent it. When pupils are on school premises, or off site but under the lawful charge of the school, teachers and school staff are acting in loco parentis. This means that they are, in the eyes of the common law, effectively stepping into the shoes of a parent unless there are statutory provisions which specify otherwise. No parent would think twice about sticking on a plaster or showing a child how to hold a rounders bat, and a teacher should feel equally able to do these things. I would strongly encourage any head teacher to make this clear to his or her staff.
Our guidance on this issue is also clear and it is made clearer in the papers in the consultation that has come out today. The guidance states:
“It is not illegal to touch a pupil. There are occasions when physical contact … with a pupil is proper and necessary.
Examples of where touching a pupil might be proper or necessary: holding the hand of the child at the front/back of the line when going to assembly or when walking together around the school; when comforting a distressed pupil; when a pupil is being congratulated or praised; to demonstrate how to use a musical instrument; to demonstrate exercises or techniques during PE lessons or sports coaching; and to give first aid”.
Of course this is not an exhaustive list but I think it demonstrates our clear expectations.
We agree that teachers who are subject to a complaint that they have used inappropriate physical contact should not routinely be suspended. This is why our new guidance on behaviour, and the associated guidance on dealing with allegations of abuse against teachers and other staff, makes clear that employers should not automatically suspend a member of staff who has been accused of misconduct pending an investigation.
We agree that teachers should and do need to have contact with pupils on a day-to-day basis. The law already allows for such contact. Our guidance reinforces this message and encourages schools to take a common-sense approach to physical contact between teachers and pupils. I hope that that has set out the background to this consultation and that, in that light, my noble friend will not feel the need to press this amendment.
Education Bill
Baroness Hughes of Stretford Excerpts(12 years, 10 months ago)
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Lord Lexden
Thank you very much indeed, my Lords. Spare a kindly thought, if you will, for your comparatively new colleague who is speaking to his first amendment to legislation since he had the honour of joining your Lordships' House. This would have been my second amendment, if the nervous novice had not incompetently passed up the chance to move Amendment 65 at the end of proceedings on Monday, when we were caught up in a fascinating session on the GTC. Perhaps I may just mention that Amendment 65 was designed to tighten further the procedures for reporting serious misconduct and I hope that my noble friend will, in his usual benign fashion, be able to write to me about it.
I will turn, still as the nervous novice, to Amendment 73. The aim here is to explore the possibility of adding to the Bill a reference to partnership between maintained schools and independent schools. As before, I speak as a former general secretary of the Independent Schools Council. For generations, the best independent schools have reached out to maintained schools and their wider communities. The Independent Schools Council conducts detailed audits of these partnership activities. Nine out of every 10 ISC schools are involved in them. Sport, music and drama are the most widespread partnership activities.
Since the Second World War, the state has taken different approaches to the issue of partnership and the wider involvement of the independent sector in our education system. The Fleming scheme and then the assisted places scheme enabled talented children from less well-off families to attend independent schools. These are long gone and will not be repeated, but ambitious new schemes of partnership are in prospect. They include the participation of independent schools in the most important educational reform of our time—the academy movement, which features in a later amendment and in the new system of teaching schools.
Many independent schools have already applied for permission to become teaching schools. If they are successful, an increased percentage of the teaching workforce will get an opportunity to train in the independent sector. If this becomes the case, it is even more important that the sector should be able to take advantage of the opportunities that partnerships can bring and should not be unfairly excluded from the opportunities afforded to teachers in maintained schools. One thinks particularly of continual professional development, to which the noble Earl, Lord Listowel, made reference.
Whatever may happen in these exciting new areas, great effort should continue to be directed at ensuring the success of the independent/state school partnerships scheme, which was introduced by the previous Labour Government shortly after they took office in 1997 and made permanent by my noble friend Lady Morris of Yardley when she was Secretary of State. Relatively small amounts of public money have brought teachers and pupils together in enthusiastic partnership projects throughout the country. Since its creation, the ISSP programme has funded no fewer than 346 projects and allocated just short of £15 million—not a large sum but one that produces considerable benefits. The average value of a grant has been around £43,000. The largest single grant, of just over £500,000, was to a consortium of 18 London schools to enable them to offer gifted and talented provision in mathematics, science and modern languages over a number of years. I will not go into further detail; the Government produce full reports on the outcomes of partnership schemes. The current round includes 24 excellent projects.
It is against this successful background that I bring forward the amendment. Much has been achieved and it may be appropriate, in order to safeguard the partnership in future, to put it on a statutory basis.
Baroness Hughes of Stretford
I will not detain the Committee. I just wanted, in principle, to support the spirit behind these amendments. We have all talked about the quality of teaching being paramount and about ensuring that this goes beyond initial teacher training and involves continued access to good-quality continual professional development.
I particularly wanted to ask the Minister if he could refer in his reply to Amendment 66(1)(b), which makes reference to minimum qualifications in child development and behaviour. I declare an interest because I used to teach such subjects to postgraduate social work and probation students many years ago. More recently my son did a postgraduate certificate in education and is now, I am very pleased to say, a primary school teacher. I was shocked at the very small amount of time spent on child development and behaviour in his training. I know that it is a question of fitting a lot into a relatively small space of time—a year—but the lack of focus on cognitive development and language development in particular was astonishing. Has the Minister any plans to look at initial teacher training and at the focus, or lack of it, on child development? Will each higher education establishment decide that for itself in terms of the national curriculum, or will there be national guidelines to determine that at least a minimum amount of time should be spent on this important subject?
Lord Knight of Weymouth
I do not want to delay the Committee, but this is really important. There is no requirement on academies. I can understand there being no requirement on academies if the number of academies is small, but if, as it would appear, we are starting to move towards a vision of every secondary school being an academy, how can we ever be sure that we have enough induction places for the workforce that we need to keep continuing to recruit?
Baroness Hughes of Stretford
As I understand this—I may be wrong—teachers’ training is not fully validated until they have successfully completed an induction period. If the choice of whether there is an induction period rests with the school or academy and is not a right for the teacher, there may be a large number of people going into those situations whose training is never finally completed and validated if they have not done a satisfactory induction period.
Baroness Garden of Frognal
My Lords, we seem to have hit an area where it would be helpful if we take this away, look at the detail of the arrangements and write to members of the Committee. The position at the moment appears to lack some clarity. We will write.
Baroness Hughes of Stretford
Clause 13 introduces into law restrictions on the reporting of alleged offences by a teacher in a school up to the point at which that teacher is charged, if they are charged, and covers matters concerning the possible breach of those reporting restrictions and possible defences of those breaches. Noble Lords will know that this has long been an issue and that teachers organisations, and head teachers organisations, to some extent, have talked about it. In fact, the previous Government responded positively to the evidence put before them but decided not to legislate. Instead, they revised the guidance issued to the Association of Chief Police Officers advising police forces not to release the identity of individuals to the media prior to formal charges being brought. The Labour Government also brought in procedures to speed up the processes of investigation because that is another important issue.
I think the general view is that those two measures have had a significant impact and that the problem of reporting of—often very pernicious—allegations about teachers and people in schools has significantly gone away. However, the Government have decided to legislate and, because we are generally sympathetic to the arguments put forward, we do not oppose the legislation. What we are concerned about is that, having decided to legislate, which is a very important step because it is curtailing the freedom of the press by statute, the Government have decided to do so for teachers only. If you are going to legislate on such an important matter rather than go down the route that we have already gone down, which has had a great impact on the behaviour of the media through self-regulation, we have to be very clear about the principles on which you are legislating, about the evidence that is the basis for that legislation and, therefore, on where you draw the line. Those are the key issues that the Government have to speak to us about today to justify why they think the legislation is appropriate for teachers and for teachers only.
I think we all accept that if people are working with children, particularly in a situation such as a school where it is very concentrated and there are large numbers of children, they can suffer extreme difficulties from unproven allegations, even if no charges are eventually laid because it affects the way they do their job, it generates mistrust from parents and people are often assumed to be guilty, even if the police decide there is no substance to the allegations and charges are not brought. We have stories from the past of longer term difficulties when people’s employability has been adversely affected by these kinds of allegations.
We are also aware that it is not just teachers who are in situations where those kinds of allegations can be made. Changes in schools, particularly over the past 10 years or so, have made this very significant. There is a wide range of people now in schools who are doing very similar things to teachers in so far as they are in close contact with children and are often dealing with very challenging children with special educational needs or behavioural difficulties. It is not only teachers who are supervising children. For example, support staff supervise children in non-classroom situations in the school, in the playground, after school and in after-school clubs. It will not necessarily be teachers in those situations. Clearly, those same arguments apply in sixth-form colleges and further education colleges. In a previous day in Committee, I think that we heard the noble Baroness, Lady Sharp, advise us when we were discussing searches that it would probably be security staff in colleges who would undertake searches, not the qualified further education lecturers. The reach of this provision is therefore very restricted.
Also, as I understand from reading it, the provision would not include—the Minister will correct me if I am wrong—people who are teachers but who are providing supply cover, or who are on a temporary contract, or who are teaching in an off-site situation. As it stands, in its very limited reach this proposal does not relate to the real world in schools at the moment or to the wide range of people who are dealing in very close contact with children. In the other place, the justification which the Minister there gave for the limited reach of the Government’s proposal was that they had evidence of the impact on teachers but not to support the application of the legislation to school support staff, or to teachers in sixth-form or FE colleges. In fact, UNISON has carried out its own survey using the same question that the Association of Teachers and Lecturers used, which has provided some of the evidence to support a case for teachers.
The results of that survey showed that nearly half of all the respondents had experience of support staff in schools facing allegations from pupils, 33 per cent of which resulted in an investigation. Twenty per cent of those accused were suspended and 15 per cent were reported to the police, so there seems to be a substantial body of evidence to suggest that these are also issues for significant numbers of school staff. Similarly, in relation to lecturers and other staff at FE colleges, the Association of School and College Leaders has also provided a wealth of evidence and case studies, some of which were rehearsed in some detail in Committee in the other place. I will not detain this Committee now with those examples, as they can be read in the Hansard report from that Committee, but there is evidence of lecturers in sixth-form and FE colleges experiencing the same kind of problem.
My Amendments 73E to 73H, 73J and 73K would therefore simply extend the Government's proposals on reporting restrictions on allegations, which cover the period up to the point only of the person’s being charged, to non-teaching school staff and to lecturers in sixth-form and further education colleges. The noble Baroness, Lady Walmsley, has some amendments in this group as well and I look forward to hearing her arguments. I think she is supporting the extension to sixth form and FE lecturers with her Amendment 75, but in her Amendment 75A she is proposing “Wait and see—let's look again in two years” about school support staff.
I simply conclude with the points that I made right at the beginning: if we are going down this road of applying legislation to restrict the reporting in the media of certain allegations, it has to be on the basis of principle and of evidence. In that regard, I cannot see that the case can be made only for teachers. The Government have got themselves potentially in a difficult position, because I could of course go further. I could talk about people working in residential care and in children's homes, or about people working in a whole variety of situations—in young offender institutions, for example. To be quite honest, that is the problem that the Government have created for themselves here. Understandably, once you start to use legislation, other groups will say, “We are in the same situation so this should apply to us too”.
This is an education Bill and, for the moment, I shall not use those arguments to that extent. I feel that there is no justification for limiting these provisions to teachers only and, as regards education, these other groups of staff ought to be covered by the same protections. I beg to move Amendment 73E.
Lord Black of Brentwood
This is not the best day for British journalism, I fear, so I almost hesitate to declare an interest as a director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I spoke on these matters at Second Reading, expressing my concern that Clause 13 is unworkable, unnecessary, has huge, significant ramifications for open justice, sets a damaging precedent and, above all, is based on scant evidence. I am very glad that the noble Baroness raised the issue of evidence because it is very important to this clause.
Of course, it is appalling if anyone, not just a teacher, is falsely accused of a crime, but the transparent pursuit of justice is vital too, as it is part of the constitutional compact between the courts, the media and the public. Justice can be effective only if it is seen to be done, and that is why the media is always opposed to reporting restrictions, except in the most pressing circumstances and where there is overwhelming evidence of need. I fear that my interpretation of the research and data in this area is that that evidence is incredibly thin.
On Monday, we heard from the noble Lord, Lord Puttnam, about the evidence-based approach to policy. He said,
“Creating policy involves learning lessons from the past and gathering evidence from the present”.—[Official Report, 4/7/11; col. GC 52.]
I could not agree more. The best evidence that we have is from the Department for Children, Schools and Families’ submission to the 2009 Select Committee inquiry into allegations against school staff, which concluded after careful analysis that there was no case for teacher anonymity. Subsequently, I have checked with some other bodies that might know about it.
It is important that the Committee looks at the issue of evidence. I have talked to the Press Complaints Commission, which has other issues on its mind at the moment, but it looked at the cases it had dealt with over the past four years and could find only two relating to teacher anonymity where there may have been a breach of the industry’s code. The secretary of the code committee of the Press Complaints Commission confirmed to me that there had been no representations from teachers' organisations to the code committee to deal with this issue. I talked to Mr Tony Jaffa of Foot Anstey, one of the leading solicitors in the country dealing with local media, who wrote to me to say that:
“My colleagues and I do not have any recollection of any regional paper ever having received a complaint from a teacher in this context … We have no evidence to support the proposed change … If this were a real problem I would expect to have seen post-publication complaints, PCC complaints, and/or libel claims. We have not seen any of these”.
The noble Baroness referred to a UNISON survey, which was very similar to the results of the survey conducted by the Association of Teachers and Lecturers, which points to a high number of allegations that have been made against staff. Among that huge potential number, the number of actual press reports is tiny. This clause is all about restrictions on the media, so we have to look at the number of press reports that follow, not at the number of allegations made within schools and further education institutions. If there is precious little evidence of a problem relating to schools, I can find even less rationale for extending this to further education institutions and to other staff as a number of these amendments seek to do. I certainly cannot find any in the 2009 Select Committee inquiry.
The other point of great concern to me is precedent. At Second Reading, I warned that Clause 13 was,
“the thin end of a wedge that will lead inexorably to much wider reporting restrictions”,—[Official Report, 14/6/11; col. 734.]
that would have a profound impact on the local media in particular. If we extend the terms of Clause 13 beyond teachers to other members of staff and to further education institutions, as Amendment 73 and subsequent amendments seek to do, as the noble Baroness has said, why stop there? How do the Government explain where the dividing line is, especially when they have already said, as they did in the schools White Paper, The Importance of Teaching, that they would,
“consider whether these measures should also be applied to the wider children's workforce”?
In 2009, a survey among local authorities found that allegations—I make the point that it is allegations and not media reports—were an issue across a number of employment sectors involving children, including social care, health care, foster carers and the police. That already brings another significant potential group of people within this ever-expanding set of potential reporting restrictions. As the noble Baroness said, there are other careers where individuals are sometimes alone with children. If we accept the extensions to Clause 13, what is the logic in excluding them? The list could include hotel staff, babysitters, dentists, vicars, scout masters and museum staff. I do not know where it would end.
We can already see it happening in other areas, which is why this clause and this debate are so important. The General Medical Council has suggested that open hearings should be replaced by private discussion between the GMC and a doctor intended to reach mutual agreement on,
“the measures necessary to protect the public without the need to refer the case to a public hearing”.
That would apply even in the most serious cases—possibly involving children—that end up in the suspension or removal of the doctor from the register.
It is not fanciful to see that unless we draw a strict line here, we will end up with a wide range of reporting restrictions fundamentally affecting the rights of children that, in effect, usher in a new age of secrecy and cover-up where crimes against children are concerned. As the noble Baroness has said, we interfere with media freedoms in this area at our peril, not because of their impact on the media but because of the impact on the justice system. That is why the groups of people covered by this legislation should not be extended but should be kept as tight as possible.
Finally, I know that my noble friend will speak to Amendment 75A, which is on a mandatory review of reporting restrictions. I am all in favour of a review of the efficacy of the legislation eventually passed in this area because I genuinely believe that it will prove to be unworkable, particularly with regard to issues to which we will turn in the next group. A review must be even-handed and must take evidence from all those involved; that is, the media, children’s charities, the police and so on. As I read it, the amendment seeks to direct such a review even before there is any evidence, which cannot be right. By all means, let us look at this again if this legislation reaches the statute book. I think that it will prove to be essential, but it needs to be a proper and independent review.
Baroness Hughes of Stretford
The noble Lord seems to be arguing against any reporting restrictions. Is he arguing against the inclusion of Clause 13 or for the Government’s case that this should be restricted to teachers? If so, given the nature of his arguments, how would he justify this for teachers and for teachers only?
Baroness Hughes of Stretford
My Lords, I thank everybody who has contributed to the debate. The weightiness of the contributions, whatever conclusion each noble Lord has come to, has exposed the dilemmas posed by the Government’s proposal. It will be difficult for the Government to hold the line.
I say with great respect to the Minister that he did not say anything about why the reporting restrictions should not also apply to school support staff, teachers in sixth forms and further education colleges and, as we have discussed, to a whole range of other people, some of whom work much more closely and in much more intimate situations with some very challenging young people than do teachers. As far as I understood the Minister, he gave two reasons for restricting the provision initially to teachers and targeting the provision on them.
First, the Minister argued that teachers had a lead role in discipline and that that placed them in a special situation. However, noble Lords have exposed the weakness of that argument. If a member of the school support staff can be in sole charge of a class for two days, they are going to have to apply discipline. Similarly, people in other situations who often deal with challenging youngsters will have to apply discipline. School support staff in the playground have to apply discipline, so I am not at all sure that it is right to justify this targeting by drawing a distinction between teachers and members of other professional groups inside and outside schools.
Secondly, the Minister acknowledged the dilemmas posed by the provision but argued that it should be focused narrowly and evaluated for three or five years to see whether it needed to be applied to other groups. The previous Government provided guidance to the Association of Chief Police Officers on what information they should release to regional newspapers and on measures to speed up the investigation process, as I and my noble friend Lord Knight mentioned. We have heard no evidence from the Government on the effectiveness of those measures or how they could be strengthened as an alternative to this legislation with all its problems.
The impact on people caught up in these situations is the same irrespective of whether they are school support staff or work in sixth forms or in FE. That is why the Government are introducing this measure in relation to teachers. I perfectly understand that the noble Baronesses, Lady Walmsley and Lady Jolly, are trying to find a compromise but you can reasonably argue that school support staff are much more likely than many teachers to live very close to an education establishment and are much more likely to be known by a very large number of people beyond the parents whose children go to the school. Therefore, the reporting of allegations which are later proven to be unfounded is likely to have a much more serious impact on them because it will be picked up by the local free paper and everybody will know about that—friends, relations, everybody. That has to be considered.
The noble Baroness, Lady Howarth, argued compellingly that the legislation will be unworkable as restrictions on the reporting of a case will apply to some members of staff but not to others even though the allegations may concern a similar incident. That could also apply to a school nurse running a clinic with a teacher present.
I argued before that when we pass legislation we ought to consider the evidence of the need for it, how it should apply and the principle. The principle that I referred to was that there should be parity before the law, which ought to apply equally to people faced with different situations. Clearly that will not be the case here. In so far as the Government have given us evidence, as far as I can see it is the same quality of evidence that we have in relation to teachers from the teaching unions as we have in relation to support staff and FE lecturers. We do not have a different quality or quantity of evidence supporting the case for targeting teachers.
I hesitate to say this because I do not want to appear divisive, but it is hard to avoid the conclusion that this is another populist proposal from the Secretary of State that is ill considered, unfair and will have serious implications for many individuals. The excellent debate today has exposed that. I concur with my noble friend Lord Knight and others; if we are to legislate to protect people in schools, we ought to do it properly. We have had an excellent debate. I have no doubt that we will return to this matter and beg leave to withdraw the amendment.
Baroness Howe of Idlicote
My Lords, when I spoke a little earlier, I was trying to say that I was sad that the two groupings had not been moulded together because it was very important to hear what the noble Lord, Lord Phillips, had to say before the Minister has the duty to reply. He now has that advantage but I was also impressed by what the noble Lord, Lord Knight, said previously about his own experience of looking at a similar approach to that which the Government are thinking about. In the end, for a number of reasons, they did not go down that path.
We have heard today of the disadvantage that it would be to some groups, if not to others, to say nothing of this sort of behaviour spreading around the country without anyone knowing what would happen if allegations are true and proved. I am afraid that we have had too many instances in the past of things coming to light much later on. We also know the damage that has been done to so many young people as they grow up. I very much look forward to what the Minister has to say because I hope that Members, obviously not just in this House but in the other House, will read carefully what has been said during this debate because it should have considerable influence, along with what the Minister will say to his colleagues in the other place.
Baroness Hughes of Stretford
First, my Lords, I thank the noble Lord, Lord Phillips, for giving me an annotated photocopy last week of his proposals because it enabled me to work my way through them and really think about them. Having done so, if we are to have legislation of this form then the amendments that he has put forward and the powerful arguments he has made from his own experience are compelling. However, I want to draw the Minister's attention to Amendment 73HB, which would delete that phrase in subsection (5) where the court, in thinking about “dispensing with the restrictions”, can have,
“regard to the welfare of the person who is the subject of the allegation”.
That was picked up by a number of Members here. In our debate on the previous group, we were concerned that the Government were considering teachers, and only teachers, and not other professional groups. For this phrase to be included in the legislation is so illuminating. It speaks volumes to me of the mindset with which the Government have approached this issue. Again, we see the Government thinking of only the teacher vis-à-vis, in this situation, the child. That is so disturbing and demonstrates their tunnel vision approach to this whole issue. I hope that they will take this whole matter away and think again.
Lord Hill of Oareford
My Lords, I know that my noble friend Lord Phillips is always helpful, as the noble Baroness, Lady Walmsley, said, because I benefited from his advice when I stumbled into this House last year on the Academies Bill. I was grateful for his help and advice on that, as I am sure I will be on this Bill. I know that my noble friend is always helpful.
The final point made by the noble Baroness, Lady Hughes of Stretford, implied that the Government care less about children than they do about teachers. She did not put it in those words but there was that sense in the way in which she described the mindset of wanting to think about teachers before thinking about children. I am sure that the noble Baroness accepts that in a whole range of other ways the Government are demonstrating their commitment to thinking about children. But we certainly want to make sure that the interests of teachers are taken fully into account and that, in making sure that absolutely the right balance is struck between the interests of the children and the interests of the teachers, the interests of the teachers weigh properly in the balance. That lies behind a whole range of measures we are taking where the Government feel that there are ways that one can demonstrate that support to teachers.
This group of amendments and our very good debate have echoes of the previous debate. My noble friend Lady Walmsley rightly makes the point about trying to strike a balance. We have tried to draft Clause 13 so that there is clarity about when reporting restrictions commence and when they are lifted. We are keen to try to keep that. The provisions are about protecting teachers, but I understand that there may be cases where there should be balance with other matters in the public interest and the courts will be required to strike that balance when considering dispensing with these restrictions.
We have had a fair discussion about Amendment 73HB and the suggestion that under the clause as drafted it looks as though the teacher’s welfare is represented as the overriding consideration. It is true that the provision requires the court explicitly to have regard to the likely effect of publication on the teacher. The interests of other parties will also be taken into consideration by the court when considering what is in the interests of justice. But I take the point made by the noble Baronesses, Lady Howarth and Lady Hughes, my noble friend Lord Phillips and others. I will try to rattle through some responses to some of his amendments because I hope that we can allay some of his concerns. But, clearly, with a couple of them, I should like to sit down with him and make sure that we have got the balance right in the drafting to make sure that we do not inadvertently open up some of the concerns that he raises.
Lord Phillips of Sudbury
With great respect to the noble Baroness, I cannot agree. Perhaps that is because I am a hoary old lawyer and she, happily, is not. A 15 per cent conviction rate in respect of all the allegations made is a very high outcome. I will happily discuss this with the noble Baroness outside the Room. The ATL figures seem to me to be hopeless as a basis for bringing in this important reform.
The JCHR seems to be lacking in awareness of the balance of injustice and harm between pupils, particularly young ones, and their teachers when it comes to criminal allegations. We are in danger—and in the other place they are even more in danger—of expecting too much of the law. It is not the finely tuned truth machine that ideally we would like it to be. It never can be, given the machinations of mankind, despite the best efforts of our excellent judiciary. We do not talk about rough justice for nothing. That is why in criminal law we have a test of proof beyond reasonable doubt, rather than the lesser, civil test which is based on a balance of probabilities. The bias towards the accused is necessary to protect the innocent from conviction, which we as a society believe is much more important than convicting every guilty person.
We are not talking here about conviction or acquittal but about the freedom of the press to report, within the bounds of defamation, where criminal allegations are made, pre-charge, against teachers. We have to balance their vulnerability to unfair reporting against the undue sheltering of teachers, the interests of actual and potential victims and the interests of the public.
I turn finally and briefly to paragraph 112 of the June report of the JCHR, which states that,
“defamation proceedings offer no protection”,
to a teacher,
“where a report states that an allegation has been made”,
provided that it,
“does not assert that the allegation is true”.
The noble Lord, Lord Hill, referred to this in his earlier reply.
As one who has done a considerable amount of defamation work and overcome that defence put up by newspapers, I can only think that the committee is wrong when it says that libel proceedings offer no protection. The Reynolds case in 2001 and the Jameel case six years later prevent newspapers sheltering behind the defence of qualified privilege—or reportage, as it is called, in relation to a matter of public interest unless they comply with sensible tests. In the Jameel case, the noble and learned Lord, Lord Nicholls of Birkenhead, said that newspapers would not have a defence unless the report was responsible, fair, on a matter of public interest and in compliance with certain other tests, which would include the obligation to evaluate fairly and sensibly the basis of an allegation. They cannot simply recycle a verbal report of an allegation or something given to them by letter without checking. They have also to check with the person aggrieved, the teacher. They have to give the gist of both sides of the story and, importantly, they have to look at the whole tenor and pitch of the article. I hope that that is enough to show that teachers who are the subject of sensational, biased, unfair reports pre-charge have protection. One or more of the unions might make it their business to pick up a couple of test cases, which they could take and use to make their point. Believe me, that would reverberate around Fleet Street very quickly, as my noble friend Lord Black will confirm.
Teachers might also take up the invitation of the Press Complaints Commission—again the noble Lord, Lord Hill, referred to this—to report grievances in relation to pre-publication publicity. He rightly said that there had been none. But, as the JCHR report says, the notion that no complaints are made because it is a useless thing to do is simply not right. First, it costs nothing to make a report to the Press Complaints Commission. Secondly, it has very real powers over its newspaper members. It can and does make them publish retractions and apologies. So I do not agree with what it and my noble friend have asserted.
To summarise, I sincerely believe that the case for this most important of limitations on press freedom, albeit put forward with sincere concern for a most highly valued section of our community, is unsafe. Surely, the onus is on those who would restrict press freedom, especially to a single group and in a way never ventured before, to prove beyond reasonable doubt that such a change is unarguably essential. But, as I have endeavoured to show, the Government’s lack of direct relevant evidence as to the present extent of pre-charge publicity affecting teachers is all but total. It is that publicity, and that alone, which Clause 13 addresses. Not only is the need for the clause wholly unproven but it could and will unfairly disadvantage pupils and, in the worst cases, prevent teacher abuse ever seeing the light of day if a charge for whatever reason, and there are many, is never brought or if a school fails to bring disciplinary procedures against a teacher, and there are many reasons why that might be the case. Nor will truth be a defence, as I have indicated. For those main reasons, I propose that Clause 13 should not stand part of this Bill.
Baroness Hughes of Stretford
My Lords, I did not think that there would be anything for me to say on the clause stand part debate but I want to make one broad comment. When I opened the consideration of the first group of amendments, I introduced the criterion that one of the bases on which we should make a judgment about this matter is the basis of the evidence. In summing up that debate, I pointed out that the Government have not produced what the Minister said was important; namely, an evaluation of the impact of the current measures on reporting of pre-charge allegations against teachers. The whole Committee has to be very grateful to the noble Lord, Lord Phillips, who has researched this and has produced some figures today, which look remarkably small in terms of the incidence of pre-charge reporting of allegations against teachers.
Today, I will go no further than to say to the Minister that, at the very least, he has to come back to every Member of the Committee before Report with as definitive information and statistics as he can gather on the current incidence of the reporting of cases against teachers before charges are made and some evaluation of the quality of that evidence. One point that I should make to the noble Lord, Lord Phillips, is that I think that his figures are very compelling. I cannot make a judgment today on whether they are the total number of cases or not. It may not be possible to get that information, but the Committee, in deliberating further on Report, must have the best information that the Government can put forward on that matter and an evaluation of how robust that information is so that we can make a judgment.