Education and Adoption Bill

Lord Lucas Excerpts

Thursday 5th November 2015 Grand Committee

[Lord Knight of Weymouth (Lab)]

My Lords, as has become fashionable, I will start with an apology that I have to leave early and that I was not able to take part at Second Reading because of my other interests. That segues into reminding your Lordships of my interests, particularly in respect of my full-time work, which I am not at, at TES—Times Education Supplement or whatever phrase resonates best with your Lordships.

This is a very interesting, probing amendment to a key clause. I broadly support what the Government are trying to do with coasting schools and any sense of complacency in schools which feel that they are not blipping on the Minister’s radar. Clearly they should be, through the RSCs. I have to say, I baulk at that acronym. If you do a search on TES for “RSC” you get to resources provided by the Royal Society of Chemistry, which frustrates the Royal Shakespeare Company. To have another one entering the lexicon frustrates me slightly, but I am sure that the Minister will be informed by the regional schools commissioners.

There seem to be three issues here: the type of school, the definition of coasting, and the definition of intervention. I would be very interested to hear some clarification on the record from the Minister about the types of school. It seems fairly clear that these are local authority-maintained schools so one’s assumption is that this applies to grammar schools, comprehensive schools and so on. It is particularly important that it is clear that it applies to grammar schools as well as non-selective maintained schools.

Then there is the question of academies. Academies are addressed in the amendment. I recall when I was a Minister—a long time ago now—that we did not want to include academies in legislation because we had separate legal agreements with academies and it became very complicated to unpick those legal agreements because you had to replace them with primary legislation and that created complications with sponsors. I remember the lines that I was given to take extremely well. I suppose I hope that those lines have moved on because we now have a lot more academies. Once you get to the point where the majority of secondary schools, for example, might be academies, you start to worry about the democratic deficit of Parliament no longer being able to properly influence the evolving nature of the governance of academies. They are not part of the local authority family. There is a direct relationship in contract law between them and the Secretary of State. How does Parliament influence them if we continue to have that line to take from the department and the Minister?

Incidentally, I would be interested to have clarification about where university technology colleges and studio schools fit within this. I listened to the excellent Cass Business School lecture by the noble Lord, Lord Baker, where he talked extensively, as one might expect, about university technology colleges and how well they are doing. I am a studio schools ambassador. There is fantastic progress in the performance of children in those small, more vocationally focused schools, although on some of the data it does not look as though they are performing as well on raw attainment. Having clarity around these exceptions is also helpful.

That leads to a second issue to do with coasting. We have heard really good contributions from all sides of the Committee on that. I, too, do not think that we should have an overreliance on data. I welcome the notion that we have better progression data than we used to. When I was responsible for the national challenge, it was very much data-driven and was very hard-edged and raw. The notion that we can do something more sophisticated feels a lot fairer. I agree with my noble friend about the use of the regional schools commissioners’ judgments and other things that inform that.

In the context of a broad and balanced curriculum and the comments of the noble Baroness, Lady Howarth, it is worth saying that I am able to see some of the data around teacher recruitment. For example, I see evidence that it is quite easy to recruit PE teachers—this has to do with the amendment tabled by the noble Lord, Lord Addington—but it is a lot harder to recruit in some other subjects, such as those in the EBacc. When I see evidence around what head teachers are saying they are doing to compensate for being unable to recruit in certain subjects, I see that one of the things they might do is not continue with some subjects if they cannot easily recruit for them. That would create a worrying scenario in respect of a broad and balanced curriculum. I add that comment because it might inform the debate about teacher recruitment that we will have on later amendments.

Finally, on intervention, this amendment is to the first clause, about certain schools being defined as coasting and therefore eligible for intervention. We are all interpreting intervention as being academy status. This Government will be with us, whether we like it or not, at least until 2020. If it is the Government’s intention that they want every school to be an academy, perhaps they should just say that, legislate for it and get on with it, and create certainty in the system. We can then debate real issues about the democratic deficit around academies and the governance of them, if that is what is happening en masse and at scale, rather than it feeling as though they are trying to manoeuvre, lever, persuade and cajole, and do everything they possibly can to get every school to be an academy, without actually saying so. That would be a more honest and straightforward way for us to proceed, if that is the Government’s clear intent. If it is not, and they want local authority schools to thrive, let them say so, clearly and unambiguously, and create a genuinely level playing field, without it feeling, as it does in this case—namely, if the intervention really is to be made to become an academy—as though they are using every excuse to force that to happen.

[Lord Lucas (Con)]

My Lords, I enjoy listening to the noble Lord, Lord Knight, much more in opposition than I ever did when he was a Minister.

I have been looking at the draft of the definition on the DfE website. I think that it has gone way off beam in including in the definition of coasting a measure of absolute performance. Coasting is about relative performance: about not doing well by the kids you have got. If you put a figure in there—you cannot be coasting if you have more than 65% of pupils getting grades A to C, including maths and English—you are leaving out all the schools in the leafy suburbs, grammar schools and schools that are selective in other ways because they have tweaked their educational requirements or are religious schools. They are just as likely to be coasting as schools which deal with a broader range of children. I am very keen that the Government should be clear that coasting is about relative performance and not absolute performance.

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[Baroness Sharp of Guildford (LD)]

My Lords, I would like to add a few words. I have been very sympathetic with quite a lot of what has been said today. In particular, as the noble Lord, Lord Knight, said, I think that we are all quite sympathetic with the notion of wanting to improve performance. Picking up the point made by the noble Lord, Lord Lucas, the concept of a coasting school goes back to when the late Chris Woodhead was Chief Inspector of Schools in the 1990s. He was very concerned that bright pupils were not being pushed and stretched enough to achieve their potential. As we have it, the definition of both the floor and the progress measure does not pick up those bright pupils. It does not pick up grammar schools or the good comprehensives in the leafy suburbs such as Guildford, which do a good job but perhaps could do a better job. If we are looking at coasting schools, it is important that they perhaps are given a bit of a jolt as well as other schools.

I am very sympathetic with what the noble Lord, Lord Lucas, says about progress being what we are actually looking at here, and that the floor standard should play a lesser part and the progress standard a better part. However, I recognise that at present it is quite difficult to measure progress standards, particularly in primary schools. I have great reservations about reintroducing key stage 1 tests but, equally, if it is left to teacher assessment, there is inevitably an element of subjectivity about it, which creates some difficulties.

The noble Baroness, Lady Howarth, made a point about the regional schools commissioners, which at the moment have very few resources. They will be backed by the advisory board of heads. But one of our scarce resources is good leadership and governance in schools. I am sure all of us know of both primary and secondary schools that have spent a long time trying to find good heads and of those with gaps where a deputy has had to take over and run the school for a year or so. When Ofsted comes in, it then marks the school down on leadership and governance because of the very fact that it has not been able to find a head.

We have crippled the leadership training programme. The National College for Teaching and Leadership has been more or less wound up, although elements have been put into teacher training. Compared to the programmes that were run about seven years ago or so, what is available now is a very pale imitation. What we ought to be doing is making sure that every good deputy is sent off to do these programmes, which involve evening and weekend work and attending short courses. They were extraordinarily good and enabled us to generate a new cadre of heads about 10 years ago. They are now working their way through, but we are not doing enough to produce a new cadre of heads, and we are very short of them. I see great difficulty in both the proposals for regional schools commissioners to have these advisory groups of heads who will move into schools and, for that matter, the proposals that came the other day from the Secretary of State about creating a school leadership group and so forth to work in rural and coastal areas. Take these good heads away from their schools and their schools often sink. We know very well that there are difficulties if you do not have a head.

I come back to the point made by the noble Baroness, Lady Massey. I am currently a member of the Select Committee which is looking at social mobility and skills. There is no doubt whatever about what she said about social skills being so important and so valued. It worries me that there are secondary schools in this country that are so worried at the moment about their achievements in academic terms that they are scrapping PHSE. They consider it unnecessary, so the attention to social skills is just not there in the schools. I take on board what has been said about the need to have a broad-based curriculum and so forth, and it would be very nice if the regulations stressed that need as well as including the definition of coasting.

Finally, I would ask whether the Government intend to reply to the recommendations from the Delegated Powers Committee and the Constitution Committee. What will their response be?

[Lord Lucas]

My Lords, the noble Baroness, Lady Sharp, reminds me that there are some very interesting variations within schools when it comes to progress. You get schools where the bright kids make no progress at all, and those where the SEN kids fall backwards while the general level of progress in the school is good. If we are to have a measure of what constitutes coasting, there must be scope for applying it to the school community as a whole and asking for some level of consistency in performance. Not doing well, for instance, by kids on free school meals but doing well by the rest, and on average being okay, is not where this measure should be at. There should be some sense that this is meant to be consistent across the whole school community and that schools should not be boosting one section of the school community and neglecting the rest.

I have a lot of sympathy with the arguments put forward by the noble Baroness, Lady Howarth. That a school should come out of the coasting definition by cutting back on breadth should be discouraged. I can see why it should not be in the definition of coasting, but narrowing down should not be a permissible way to get out of coasting. It is so depressing, going to schools that are narrowly focused on exams. I do not do it often, but it is a grim experience.

Lastly, I will say that someone has sent me a copy of Call Me Dave. If the noble Baroness would like to throw it on the bonfire in Lewes, she can take it.

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

My Lords, I will speak to the group containing Amendments 1, 2, 5, 7 and 9, which concern coasting schools, tabled by the noble Lords, Lord Watson, Lord Hunt and Lord Addington, and by the noble Baronesses, Lady Massey and Lady Bakewell. Before doing so, I will say that at the recent Third Reading of the Childcare Bill I wished the noble Baroness, Lady Jones, who has been the Front-Bench spokesman on education throughout my time in this job, well with her new brief. I did not realise at the time that the noble Lord, Lord Touhig, was also leaving the education Front Bench and going back to his old brief of defence, so I would like to take this opportunity to wish him all the best with his new brief. It has been a pleasure working with him.

It has also been a pleasure discussing the Education and Adoption Bill with noble Lords both on and off the Floor of the Chamber. I hope that all noble Lords who attended the meetings with regional schools commissioners, head teacher board members and multi-academy trust chief executives on Monday found it useful. It is refreshing that on the 410th anniversary of the gunpowder plot we can take comfort from the fact that we are no longer a society divided, as our country was 410 years ago, and that there is cross-party support for the central thrust and purpose of this Bill.

As this is the first group of amendments, I hope that noble Lords will permit me to remind everybody of the purpose of this legislation, which is to ensure that every child, regardless of background, has the opportunity to go to a good school. That means dealing with failure swiftly, as a day spent in a failing school for a child is a day of their education lost for ever. We made this absolutely clear in our manifesto, on the basis of which we were elected to government.

So where a school is failing, the legislation proposes that it will become an academy forthwith. Also, for the first time, and as we also stated in our manifesto, we are bringing coasting schools into scope. This is about putting children first. But we must do this in a way which is clear to all and is practicable, and I must say, as I will elaborate, I have some real concerns about the practicality of the amendments proposed to the coasting definition.

Clause 1 of the Bill gives a power to the Secretary of State to make regulations defining which schools will be deemed to be coasting, and therefore eligible for intervention. To assist noble Lords’ scrutiny of this clause, we published draft regulations in June setting out our proposed definition and have also launched a public consultation on the proposed definition. The definition provides a clear and transparent data-based approach. The policy is about identifying schools which are failing to fulfil the potential of their pupils over time. We have therefore consciously chosen to base the definition on three years’ performance data, rather than a single Ofsted judgment or a snapshot of a single year’s results. As noble Lords have said, Ofsted judgments can often be rather backward-looking, excellent though they generally are.

From 2016, primary and secondary schools will be held to account against new headline accountability measures. Given that our proposed definition looks at data over three years, under this definition it would be 2018 before schools have three years of data reflecting these new metrics. It is important that we do not wait until then to tackle coasting schools. So our draft regulations contain an interim measure for 2014 and 2015 which is based on the current headline accountability measures familiar to schools, as well as the measure that will apply from 2016 onwards. A school must be below the coasting bar across three years in order to be deemed to be coasting and to become eligible for intervention.

From 2016, the proposed coasting definition for secondary schools will be based on Progress 8. Progress 8 is a measure which has been well received by schools and head teachers. It is a robust metric, based on the progress a pupil makes in eight GCSEs when compared to pupils with the same starting point. At least five of those GCSEs have to be in English baccalaureate subjects. As the measure compares the results of pupils against those with a similar starting point in other schools, it clearly focuses on whether schools are fulfilling the potential of all their pupils and makes it an ideal metric on which to assess whether a school is coasting—and it moves away from what Tristram Hunt so accurately described as the great crime of the C/D borderline.

For primary schools, we think it is right that the coasting definition includes both an attainment and a progress element. For a primary school to be identified as coasting, it must fall below the bar on both attainment and progress in all three years. Attainment is critical for primary schools as there is an absolute standard which pupils need to reach to be able to make a successful start in secondary school. In 2016, the attainment bar for the coasting measure will be 85% of pupils meeting the new expected standard in reading, writing and maths.

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[Lord Nash]

The noble Baroness is completely right. I have not made myself clear. The progress measure comes in for the first time in 2016. The coasting definition is based over three years. Therefore, for the first year that the coasting definition applies, it can only have the progress measure in for one year, which is why we have these interim measures for 2014 and 2015. In 2018, however, it will all be entirely based on three years’ progress—so we will be entirely focused on progress in secondary schools.

[Lord Lucas]

My Lords, that is not the way the draft reads. It says: if fewer than 60% of school pupils achieve five A* to C grades, including English and maths, and the school has a below median score on progress. To fit in with what the noble Lord is saying, that “and” ought to be “or”.

[Lord Nash]

It applies only to 2014 and 2015—and if it is not clear, we will make it clear in the future.

Amendment 5 requires draft regulations to be laid before and approved by each House before they can be made or updated. I hope that the noble Lord, Lord Addington, and the noble Baroness, Lady Bakewell, will allow me to discuss this important element of the amendment when we reach Amendment 8, which proposes exactly the same approach.

Amendments 2 and 9 propose that academies, alongside maintained schools, would become eligible for intervention, and, in the case of Amendment 2, subject to the statutory intervention powers in the Education and Inspections Act 2006, when notified by Ofsted that they are schools where pupils do not fulfil their potential.

I agree that coasting schools must be tackled—whether it is a maintained school or an academy. But academies are not governed by the statutory framework that this Bill seeks to amend. They are run by charitable companies—academy trusts—which operate in accordance with the terms of individual funding agreements between the academy trust and the Secretary of State. We have already published a new coasting clause for the model funding agreement, as I have said. But I want to reassure the House again that, even where academies do not have this specific clause in their existing funding agreement, regional schools commissioners will assess all academies against the coasting definition. Where academies are identified as coasting, RSCs will assess their capacity to improve sufficiently in just the same way as maintained schools, supporting and challenging them to improve and taking action under their funding agreements where necessary.

RSCs have already shown that they take effective action when academies underperform. Since 1 September 2014, when RSCs came into post, they have issued 58 prewarning and warning notices to academy and free school trusts. In the same period, they have moved 83 academies and free schools to new trusts or sponsors, compared to 13 in the previous academic year.

Amendment 2 would remove the Secretary of State’s power to issue an academy order for a school that has been notified that it is a school in which pupils do not fulfil their potential. While some coasting schools may choose to become academies in order to benefit from the strong governance and support of a multi-academy trust, we have been clear, as I said, that enforced academisation will not be the default solution for all coasting schools. RSCs will want to consider whether a coasting school has demonstrated that it has the capacity to improve sufficiently on its own, and in some cases this capacity will be evident, or it may need advice and support, for example from an NLE, and that may be sufficient to bring about the required improvements.

It is important that RSCs have the discretion to make an academy order where it is clear that a school’s leadership does not have the capacity to improve sufficiently and where the school needs the support of an experienced sponsor in order to fulfil the potential of the pupils. We know that sponsors can bring new life to schools. For example, the City Academy Whitehawk in Brighton and Hove opened in September 2013. The year prior to its becoming an academy, only 39% of pupils achieved level 4 or above in reading, writing and maths at the end of key stage 2. By 2015, the provisional figure has increased to 75%. It would not be right to deny coasting schools this support where it is appropriate.

Amendment 7 would provide the governing body of a maintained school with a right of appeal to the First-tier Tribunal when it considers that the data used to define a school as coasting could have been interpreted in a different way. This amendment is unnecessary. Our clear and transparent data-based definition will not be open to interpretation. Schools will be certain, based on the data, whether they have fallen below the coasting bar or not, but regional schools commissioners are already required by virtue of public law to act reasonably in exercising the Secretary of State’s powers. As I said, they will work with schools to consider all the relevant factors when deciding what action to take.

The draft Schools Causing Concern guidance already includes a number of examples of the type of factors they should consider. As I said, we have been clear that intervention in coasting schools will not be automatic. Nick Capstick, the CEO of the White Horse Federation outlined this clearly when he said:

“It is right that the coasting definition is based on transparent performance measures. It is then clear-cut for schools whether they fall within the coasting definition or not. The majority of schools will therefore be able to carry on free from fear that they suddenly and unexpectedly be judged as coasting”.

I know that noble Lords support our ambition to ensure that all pupils, whatever their background, receive an education that enables them to fulfil their potential. I hope that, following this debate and having seen the detail behind our coasting policy—alongside the proposed coasting definition set out in our recent consultation—noble Lords will be reassured that our approach is the right one.

[Lord Nash]

When we formally intervene, we already publish that information, so it will be in the public domain. In view of what I have said, I hope that noble Lords are reassured that our approach is the right one, and I therefore urge the noble Lord to withdraw the amendment.

[Lord Lucas]

My Lords, despite my noble friend’s fine efforts, I have been unable to torture the words of the draft definition of coasting into the form that he says they take. It is quite clear from the wording here that, taking GCSE as an example, you have to fall below 60% five A to Cs to be considered coasting. It is therefore impossible for any grammar school, however lackadaisical in its teaching, to be considered a coasting school. That is a fundamental fault in the Government’s approach. It is very important that those schools and others which are lucky in their selection of pupils should be eligible for coasting.

[Lord Nash]

We could go on like this for a long time, but I will talk to the noble Lord, Lord Lucas, outside. The first principle of legal interpretation is to look at whether the wording is clear—I think that it is clear, but we can take this offline.

[Lord Lucas]

My Lords, the Minister is already writing me a letter full of statistics, so I hope that he can include that matter. I am comfortable that he says that a grammar school will be eligible, but I would be very grateful if he could make it clear to me how, given the wording in the draft.

[Baroness Sharp of Guildford]

Will the Minister send the letter round to everybody who has participated in the debate?