Education and Adoption Bill (Sixth sitting)

Bill Esterson Excerpts

Tuesday 7th July 2015 Public Bill Committees

[Kevin Brennan]

Preferably, another route of appeal would be available when the power was exercised by a local authority, namely an appeal to Ofsted. Given that the Minister is sweeping away any right to an appeal to Ofsted on behalf of governing bodies—presumably because he has lost all faith in Ofsted’s being able to deal with it—there must be some alternative. I am interested to know whether there is such an alternative, and whether that might be through a statutory instrument. That is particularly apt when the Minister, who is after all accountable to Parliament, would be making such an order—or, indeed, such a direction—unless the amendment is accepted.

[Bill Esterson (Sefton Central) (Lab)]

It was interesting that the Minister asked about an appeal to the local authority. Does he think that that is a route to be explored, if he is concerned that using statutory instruments is excessive? Perhaps a local authority is the route to deal with such matters.

[Kevin Brennan]

The Minister was not suggesting that—I am saving him the trouble of explaining that to the Committee. He was testing whether, in the case of a notice laid by a local authority, there should also be a means of appeal through a statutory instrument, as envisaged in the amendment. I am simply saying that it is worrying that he is sweeping away any right of appeal and that such an approach has severe dangers—we will hear from several Conservative Members this afternoon, but I do not know if they are concerned about natural justice. The Schools Minister may be able to tell us, when he makes his remarks, about how he thinks the clause will fulfil the normal common-law requirements on natural justice—he mentioned common law in this morning’s sitting, so perhaps he will explain that point to the non-lawyers among us this afternoon.

All governing bodies are not necessarily up to scratch—everyone acknowledges that. The National Governors Association admits that governing bodies vary in quality across the country, and says, as we would—I am sure the Minister would—that

“governing bodies need to be honest and realistic about their own performance”.

However, there are many competent governing bodies across the country, which play a central part in school improvement and are capable of adequately challenging headteachers and senior leadership teams. There should be some channel for their concerns to be heard.

The revocation of the fundamental democratic right in the clause genuinely offends against natural justice. Disallowing any means of appeal constitutes unfettered power of the sort that the Minister has previously denied that he is seeking. I took the trouble of reminding myself of what the Minister has said on this issue in the past. In this case, it was during proceedings on the Education Act 2011, specifically when discussing the insertion of section 96A into the Education and Inspections Act 2006—again, this business of making legislation by amending previous Acts, which we were talking about earlier. At the 20th sitting of the Public Bill Committee on that legislation—it was a much longer Bill than this one; hon. Members will be relieved to hear that this Committee will not be sitting for that long—the very same Schools Minister who, Lazarus-like, is sitting here now after being taken out of the Government for a while, said:

“While we believe that the intervention power is necessary, we do not believe that the power of the Secretary of State should be unfettered. Schools will be able to make representations to Ofsted against the warning notice, whether or not it is given as a result of a direction. Ofsted will be the final judge of whether the warning notice should have been given. If the notice is confirmed, and the school fails to take the necessary action to remedy the concerns set out in the notice, the school will then become eligible for intervention.”––[Official Report, Education Public Bill Committee, 31 March 2011; c. 835.]

There we have it—that is what he said back in 2011.

It is therefore only fair that the Minister should give the Committee a full and properly justified explanation of why he now disagrees with himself. We all look forward to hearing from him at the end of the discussion on this group of amendments, and I may want to probe him a little further once we have done so, so I will leave my remarks there for now.

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Someone with a suspicious mind might suggest that the clause is designed to enable Ministers to interfere with local authorities’ school improvement work because what local authorities do sometimes does not fit into Ministers’ ideological position. It is not a good idea for Education Ministers to be one-club golfers and to have no patience with anyone who thinks it can be useful to use some of the other clubs that are available, according to the circumstances. We will not divide the Committee on the clause, but we have already registered our deep concerns about its illiberality and we may return to it later, either on Report or in another place.

[Bill Esterson]

We heard evidence last week that the only way to improve schools is by academisation. However, we heard that from the chief executive of a chain of academies; we did not hear it from anybody else. It is not surprising that the chief executive of an academy chain would say that, or that other people take the view that there are other routes to improve schools.

As my hon. Friend just said, the clause is about speeding up the process of academisation by removing some of the barriers; by removing the opportunity for people to appeal or slow down the process when the Government decide that it is appropriate for a school to become an academy. As several hon. Members have already said, we should look at the evidence. I served on the Education Committee in the last Parliament and we did just that. We produced a report on academies and free schools. We took evidence and travelled around the country; we got out of this place, as the Minister said that we should. We spoke to schools and took written and oral evidence right across the schools estate. We took a lot of advice; it was a very thorough inquiry. What did we conclude? We concluded:

“Current evidence does not allow us to draw conclusions on whether academies in themselves are a positive force for change.”

What did we mean by that? We meant that it is too early to say that academisation in itself is the way to improve schools. We left open the possibility that there are other ways forward, and it is important that that point is taken on board.

It is crucial that the evidence is considered when creating legislation. From the evidence taken and in the stand part debate so far, we have heard that there has been limited use of the power of issuing a warning notice by local authorities. We have heard scant evidence that the local authorities have been wrong to use that power only sparingly. The Minister spoke about what happened in Coventry, which he thought was an example of a local authority dragging its feet. However, that turned out not to be the case; it was anything but, given that there had been a better way of improving the school and resolving the issues that had led to concern in the first place. This one example did not stack up; it did not provide the evidence that the Minister hoped it would.

Indeed, there are many other forms of school improvement. When the Education Committee looked at the evidence over many years, it found that activities such as the London Challenge had produced sustained, measurable and long-term improvement in schools. When that was rolled out around the country, there was the start of a big process of sustainable school improvement. The Committee did not find that, so far, that is true when it comes to academies as a whole.

The other thing I was hoping to hear about in this part of the discussion was what it is about warning notices that really makes a difference. I intervened briefly on my hon. Friend the Member for Cardiff West on that point earlier. I hoped that the Minister would pick up the point, so perhaps he can do so when he responds. Where is the evidence of success in the use of warning notices—not just the individual case studies, but where are the data backing up the success of warning notices that justify a whole clause? They may well exist. I am not against the use of warning notices but, given the importance attached to them and the fact that they are so crucial that they take up a whole clause, I would expect the Minister to justify their use per se and why he has found it necessary to amend it. Perhaps he could deal with that point.

We also heard hon. Members ask whether the change to speed up the direct intervention by the Secretary of State by using regional schools commissioners is justified. That would increase the tendency to centralise decision making and involvement in local schools. Listening to the Government over five years—and I do not think it was just the Liberal Democrat influence on the Conservatives—I thought the Government were committed to the concept of localism. The Government went on and on about localism and its importance. Yet with academisation, we have had a centralising tendency, taking everything to the desk of the Secretary of State, which is not alleviated by having regional schools commissioners.

Measures such as those in clause 2 would reduce localism further because they would take away the opportunity for consultation and the right to appeal. Where are the checks and balances? Where is the local knowledge being fed in to decisions about whether a warning notice is required? Where is the opportunity for proper, informed debate and scrutiny around such important decisions for the future of children’s education in a school subject to a warning notice?

Those are the questions raised by the way the clause is drafted; and those are the questions that my hon. Friends were trying to tease out with their amendments. I am afraid they are questions that remain unanswered so far. I live in hope for when the Minister comes to respond, as everybody else has said. He is a decent and honourable man, whom we all like. We like him dearly. I am sure that, even without all these compliments, he would want to answer the questions being raised. Unless he does, the question remains about the real purpose of the proposed changes in clause 2 and elsewhere in the Bill.

I challenged the Minister on Second Reading and make the same point now. If there is more to this proposal than meets the eye, the Minister has the opportunity now to say whether his real purpose in making changes such as the increase in the use of warning notices is more than an attempt to unblock something that he claims exists but has not really been a problem—the delays caused by local authorities in the use of warning notices. That has not really been the problem that he is perhaps trying to say it is. Or is it something else? Is it something much bigger?

Is the real agenda that this is a means by which the Government are trying to get to the point where every school in the country becomes an academy, but they do not want to say so because they are worried that that would cause real concern. Is he really trying to get that through? Is that what he is trying to do? If that is the case, he should say so. In addition to answering my questions, might the Minister also take the opportunity to say whether his true aim is to turn every school in the country into an academy whether it wants to be one or not?

[Mr Gibb]

I am overwhelmed by the kind comments from Opposition Members. I must apologise to the hon. Member for Birmingham, Selly Oak that the tip proved so abysmally wrong. I just hope that he did not put any money on it and I apologise profusely for leading him down that garden path.

When it comes to the Bill, however, I am not leading anyone down the garden path. There is no hidden agenda regarding warning notices. They are an extremely powerful tool. Once we have a less rigid compliance period, local authorities and regional schools commissioners will be able to require action and set the ambitious levels of improvement that they expect to see. If the school improves, the warning notice has delivered its result and has helped the school to take action. If a warning notice fails, there are other powers to require the school to enter into arrangements—we will come to the relevant clauses shortly—such as partnering with a more successful school, entering into a federation or collaborating with national leaders of education to ensure improvements.

Therefore, my answer to the hon. Member for Sefton Central is, “What’s not to like?” The provisions actually came into being under the previous Labour Government in the 2006 Act, albeit only with Conservative support in the Lobbies. It is a good measure and we are simply extending the same power that the 2006 Act gave to local authorities to regional schools commissioners, who must act reasonably, which is important. The common law requirement to act reasonably has filtered through the debate. Public bodies, including the Secretary of State and those acting on her behalf, are required under principles established through case law to act reasonably, rationally, lawfully and fairly. They can be held to account by the courts if they fail to act in accordance with those public law principles. The Secretary of State is also directly accountable in this House for the actions of regional schools commissioners through Education Question Time and parliamentary written questions.

The five years of the coalition Government saw many successes, one of which was sorting out the economy and bringing us back from the brink of financial ruin. There are other examples across Whitehall, but I want to cite that 1.1 million more pupils are in “good” or “outstanding” schools today than in 2010, and that 100,000 six-year-olds are reading more effectively today than in 2011 as a consequence of our reforms to the teaching of reading through phonics. That figure of 1.1 million was achieved through a whole range of measures, in particular the academies programme, which, again, was started under Labour and was turbo-charged by the previous Government. There are 1,100 sponsored academies that started life as under-performing schools, which is a colossal achievement that has led directly to over 1 million children being taught in “good” or “outstanding” schools.

The hon. Member for Sefton Central also mentioned localism and questioned whether the Conservative party is truly committed to it. Yes, we are—as he almost acknowledged. The academies programme is taking such powers to the frontline and to teachers and professionals. The academies programme is all about autonomy for professionals. It is not about delegating to another statutory body; it is about giving powers directly to teachers, so that they can do their best for the children in their schools.

Regional schools commissioners do not intervene or interfere in schools that are performing well. They are only interested in intervening when schools are underperforming.

[Bill Esterson]

On the point about so-called increased autonomy, the Education Committee heard evidence that schools that are in chains now have less autonomy than they did when they were maintained. How does the Minister explain that as a localism success?

[Mr Gibb]

I don’t buy that argument. Groups or chains of academies are all about collaboration between the professionals within those chains. Those chains are often led by former or current headteachers. It is about collaboration, working together and finding a common vision. The most successful academy groups are those with a central, core vision that is developed by professionals within the chain. That best practice is then rolled out, which is how very successful chains such as Ark and Harris have managed to deliver remarkable achievements in some of the most deprived parts of the country.

The hon. Member for Birmingham, Selly Oak responded to my example of Henley Green, but I must tell him that the warning notices are not for “inadequate” schools; they are separate provisions in the Bill and the 2006 Act for schools requiring action because they need to improve and are underperforming for other reasons—for instance, poor SATs results, as the hon. Gentleman cited. That was the case with Henley Green. During the process, the results did rise above the floor, but we are talking about the floor standard. The Government agreed to withdraw the direction but maintained that it was justified at the time. We do not resile from the direction being the right thing to do. As a consequence of action, the school’s standards rose above the floor.

The hon. Member for Stockport raised concerns about brokers.

--- Later in debate ---

[Kevin Brennan]

We were discussing the statistics that the Minister used in his remarks and in the evidence sessions. He provided helpful clarification of the statistics he quoted of sponsored academies improving their GCSE five A to C grades, including English and maths, results by 6.4%, compared with local authority maintained schools’ increase over the same period of 1.3%. He accepted that that was a comparison between schools that had been made sponsored academies and all maintained schools, rather than a comparison between schools that had been made sponsored academies and schools with similar issues that had been subject to other school-improvement methods.

Similarly, the Minister quoted statistics for primary schools, saying that sponsored primary schools had improved their performance at double the rate of maintained primary schools, again comparing sponsored academies with all maintained primary schools, rather than comparing like with like—in other words, taking schools at a fairly low base and comparing their performance with that of all other schools, without comparing them like for like with schools that had achieved similar levels of performance but had attempted other means of school improvement. That is like saying that football teams that have engaged new managers have done better than all the other teams in the league, rather than comparing the teams at the bottom of the league that have engaged new managers with other teams at the bottom of the league that have tried something else, such as buying a new player or attempting a new formation in their play.

That is why I appeal to Ministers to subject all of their favourite statistical observations to the UK Statistics Authority for comment, so that we can have independent assessment of them. I am sure that would hugely enhance the quality of our debate and bring a better use of statistical evidence to our proceedings when considering the most effective policy for school improvement, which is why we are all here. I invite the Minister to do that.

[Bill Esterson]

My hon. Friend is right. I am reminded of the Labour party’s attempt to get the Office for Budget Responsibility to scrutinise the budget plans of all the parties before the election. Does my hon. Friend agree that there is a similar reluctance now to look at evidence? Does he also agree that there is a danger of the Hawthorne effect? Early examples of new initiatives tend to attract the very best people and, therefore, have better outcomes than over time. Statistical analysis should be carried out over an extended period before any conclusions are reached.

[Kevin Brennan]

I thank my hon. Friend for his intervention. I think that is an additional point, although sponsored academies have been with us for some time, as the Minister pointed out, so there is some long-term evidence. My hon. Friend is right that any new initiative, in whatever field but in particular in education, is likely to attract those who are most enthusiastic and have the zeal to be part of an interesting, innovative change. It is understandable that very high-quality educational leaders might be attracted to new initiatives in education, and we have to factor that into any judgment of the success of innovations. Quality teaching and leadership are scarce resources. We all want to increase the quality of teaching and leadership, but we will not do that simply by “initiativitis”. We have to look into how we can grow better school leaders and better teachers through valuing them, paying and training them well, so that we attract the very best into the profession.

As the Minister fairly and accurately noted, we are trying to tease out in our amendments why clause 4 is still applicable to “inadequate” schools if under clause 7 they will be automatically academised, without being subject to the Secretary of State’s discretion, if they fall into either “inadequate” category. It is interesting that, as the Minister confirmed, there are two types of “inadequate” school: those with serious weaknesses that require improvement, and those that are in special measures. That can be confusing, given the new Ofsted category “requires improvement”. It is worth reminding hon. Members that “inadequate” schools can fall into either of those two categories.

The Minister confirmed that clause 4 will still apply to “inadequate” schools, despite the fact that they will be automatically academised under clause 7, because the academy order could take some time. It is not always caused by the obstructionism of ideologically motivated people, otherwise known as parents. It is often due to delays and bureaucracy in the Department for Education, problems with the legality of who owns the land and other issues that rightly have to be sorted out. The Minister said, in effect, that in the meantime it is good to be able to do other things. So he has freely admitted that other methods work. He is making a deliberate effort in the Bill to retain the ability to use other methods of school improvement in the interregnum during which the academy order is going through. We know through parliamentary answers that the orders can take years, and not because of the obstructionism of ideologically motivated people, otherwise known as parents.

It is good to have an admission from the Minister that other methods of school improvement work. We will seek, throughout our debates, to show that that is the case, and that by fettering Ministers’ ability to pursue those other methods, the Minister restricts their ability to undertake effective school improvement. I do not intend to press the amendments to a vote, but if the Minister has a point of clarification, we would all be glad to hear it.

--- Later in debate ---

[Kevin Brennan]

I want to respond briefly because the Minister has introduced a whole new raft of information at this very late stage in the debate. Again, one could probe and test some of the statements that he has just made, although I will not at this point. Yes, of course, the best academy chains do very well. They are the best academy chains, and that is why they are doing very well. When is the Minister going to cite how the worst academy chains are doing? That is the point. He is making an argument here for the whole programme, rather than for just a limited part of it. The best maintained schools actually do very well indeed, too. This is my point about having to look at all these different things. Of course, the Minister did not quote the Select Committee report, about which my hon. Friend might be about to intervene. I am reluctant to go on too long.

[Bill Esterson]

In the Education Committee report, there was a Sutton Trust comment that,

“most [chains] are not achieving distinctive outcomes compared to mainstream schools”.

My hon. Friend is right that the best are doing best, but overall I am afraid that the evidence was not there. That is what the Select Committee found, and that is what it reported.