Employment Rights Bill (Fourteenth sitting)

Greg Smith Excerpts

Tuesday 17th December 2024 Public Bill Committees

[Greg Smith (Mid Buckinghamshire) (Con)]

I beg to move amendment 168, in schedule 3, page 115, leave out from the beginning of line 15 to the end of line 31 and insert—

“(1) In the case of staff employed under subsection (3)(b) of section 148C, matters within the SSSNB’s remit are limited to the establishment of a framework to which employers of school support staff must have regard when discharging their functions.

(2) A framework under subsection (1) must include information on—

(a) the remuneration of school support staff;

(b) the terms and conditions of employment of school support staff;

(c) the training of school support staff;

(d) career progression for school support staff; and

(e) related matters.

(3) When taking any action related to the matters in subsection (2), an employer may disregard the framework only in exceptional circumstances.

(4) For the purposes of subsection (3), the definition of ‘exceptional circumstances’ shall be set out in regulations.

(5) In the case of staff employed under subsection (3)(a) of section 148C, the matters within the SSSNB’s remit are matters relating to the following—

(a) the remuneration of school support staff;

(b) terms and conditions of employment of school support staff;

(c) the training of school support staff;

(d) career progression for school support staff.

(6) The Secretary of State may by regulations provide that, for the purposes of subsection 5—

(a) a payment or entitlement of a prescribed kind is, or is not, to be treated as remuneration;

(b) a prescribed matter is, or is not, to be treated as relating to terms and conditions of employment of school support staff;

(c) a prescribed matter is, or is not, to be treated as relating to the training of school support staff;

(d) a prescribed matter is, or is not, to be treated as relating to 30 career progression for school support staff.”

This amendment would change the matters within the SSSNB’s remit in relation to academy staff, limiting it to the creation of a framework to which academy employers must have regard in all but exceptional circumstances.

It is a pleasure to serve under your chairmanship, Ms Vaz, at the Committee’s last sitting before Christmas—let us make it a memorable one. [Laughter.]

[The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)]

They are all memorable.

[Greg Smith]

They are.

[Sir Ashley Fox (Bridgwater) (Con)]

But some are more memorable than others.

[Greg Smith]

Some are definitely more memorable than others.

Amendment 168, tabled in my name and that of my hon. Friends on the Conservative Benches, would change the matters that are within the remit of the school support staff negotiating body in relation to academy staff, limiting it to the creation of a framework to which academy employers must have regard in all but “exceptional circumstances”. I am sure that Government Members will agree to a moderate amendment in the spirit of what they seek to do.

As I said in the debate on clause 28, which introduces schedule 3, in 2010 the then Conservative Secretary of State for Education, Michael Gove, rightly abolished the school support staff negotiating body. The Conservative Government had a clear and principled reason for that: employers should have the flexibility to set pay and conditions locally, rather than having a top-down, centralised framework imposed on them. Instead of giving employers the flexibility to do what works best for them, this Government are establishing a national terms and conditions handbook on training, career progression routes and fair pay rates for school support staff.

These things can sometimes get taken out of context, so I want to be clear: we are not advocating for a race to the bottom on pay and conditions for school support staff, but we believe that the current arrangements are working well and have allowed for innovation that is beneficial for pupils—real children up and down the land receiving their education. Our worries about the re-establishment of the school support staff negotiating body are principally that we believe that school employers must retain a degree of freedom and flexibility to recruit, develop, remunerate and deploy their staff for the benefit of the children in their community—their setting—to achieve their particular aims from a school improvement and inclusion perspective.

Children with special educational needs and disabilities rely on schools’ ability to deploy staff to meet their individual needs, and stifling innovation in staffing to meet those needs would be the greatest barrier to reforming the SEND system. In particular, ensuring that mainstream provision can meet the needs of SEND children requires, in its very essence, an innovative use of support staff resource.

As I have said in previous debates, I salute all support staff, whether they support children with SEND or other- wise. They are great assets to every school who do an enormous amount of good work for every child they work with on a daily basis—I am thinking of the example given earlier by the hon. Member for Birmingham Northfield, and the way in which they interact with and support my own children in their schools in Buckinghamshire. They are hugely important, but this is about ensuring local decision making, local flexibility and the local ability to shape what is right for children’s education, development and future life prospects.

For those reasons, we believe that the statist approach created by the Bill is fundamentally misguided, and that children, particularly those with additional needs, could be worse off because of it. All school employers operate in a competitive market to attract and retain staff. I accept that in the education world it is currently particularly difficult to recruit teachers and support staff—there is no doubt that that has been a challenge for a considerable number of years—but, particularly in relation to support staff, schools compete with other local establishments, including in the private sector, and employers in local markets. Incentives to attract and retain staff are needed.

Our concerns with the re-establishment of the school support staff negotiating body do not end there. Academy trusts sign a funding agreement with the Secretary of State that gives them certain freedoms, among which is the ability to set pay and conditions for staff. What the Government are trying to do with the Bill is therefore to unpick a clear, established and positive freedom that academy trusts have. To take that away from them would be a retrograde step. The Bill explicitly overrides that contract. As for school support staff, it states:

“Where the person is employed by the proprietor of an Academy, any provision of the Academy arrangements relating to the Academy has no effect to the extent that it makes provision that is prohibited by, or is otherwise inconsistent with, the agreement.”

His Majesty’s loyal Opposition worry that this is just the start of the Government’s longer-term mission to unwind academy freedoms, and that it shows that they fail to understand how to support educational excellence.

The data on key stage 4 performance recently released by the Department for Education shows that academies and free schools tend to perform better than other types of school. We therefore believe that it would be counterproductive to unwind one of the key tenets that has led them to where they are today. There is always room for improvement, but when things are travelling in the right direction it is foolish to put barriers up. Our amendment would change the SSSNB’s remit so as to create a framework that academies must have regard to but are not compelled to follow. That seems a reasonable compromise, and I ask the Government to consider it carefully.

In this context—we are all creatures of our own experience—I think particularly of examples from my constituency of Mid Buckinghamshire and the county of Buckinghamshire more widely. I think I brought up this example in relation to other sectors in earlier Committee sittings. Because the county of Buckinghamshire borders London boroughs, rigid pay scales make recruitment an even greater challenge, because of the London weighting issue. Many teaching assistants, school support staff and, frankly, staff in any sector—we will come to adult social care later in the Bill, and care workers are equally affected—who live in Buckinghamshire and perhaps want to work there feel compelled to go and get the extra money that the London weighting would bring by applying for a job in, say, the London boroughs of Hillingdon or Harrow. Nobody can blame them for doing that, but it creates a recruitment challenge for Buckinghamshire, Hertfordshire, Essex, Kent, Surrey and other London-bordering counties.

The amendment seeks to correct for what the Government are trying to do with schedule 3, and so to maintain the freedom that allows academies in Buckinghamshire and those other counties to dynamically adapt their pay and offering for school support staff and counter those challenges. It would mean that schools in Buckinghamshire that want to employ people who want to work in Buckinghamshire can get them on board, rather than there being a false incentive that forces people to take jobs in one of the London boroughs and secure the London weighting that goes with them. That is one practical example of why I believe that academies, and free schools for that matter, should have that core freedom and flexibility to get it right for their children.

[Laurence Turner (Birmingham Northfield) (Lab)]

It is a pleasure to serve under your chairship, Ms Vaz.

I think I am correct in saying that Buckinghamshire is one area that has opted out of the National Joint Council, so I recognise that the shadow Minister brings a particular perspective to the debate, but the final line of the amendment states that

“a prescribed matter is, or is not, to be treated as relating to 30 career progression”.

I assume that is just a typographical error, but it would be good to have that point clarified.

More widely, I do not think the amendment is necessary. In some ways, it is quite loosely worded. It seeks to put in the Bill a reference to a framework, but a framework is not defined and that would not be clarified through later regulations. Therefore, I am not sure that the wording before us would necessarily resolve the Opposition’s aim, and the meaning of “framework” is probably not something that we would want to have out in the courts.

On the wider issues, the shadow Minister said that the proposals in the Bill would overwrite the funding agreements, but part of those agreements is a requirement for academy employers to have regard to the academies handbook, which is altered as part of the normal course of public policy, so such variations are not especially new. As I say, I do not think that what is in front of us would achieve the Opposition’s aim. The reinstatement of the school support staff negotiating body was a manifesto commitment. It would be problematic to say that a manifesto commitment could not be implemented because funding agreements were already in place. It is quite proper for the Government of the day to pursue their public policy objectives in this manner.

I would like to correct the record. In the morning sitting I said that freedom of information requests had established that, where data was held, the vacancy rate for teaching assistants was 10%. The actual figure is 18%. I just wanted to put that higher number on the record.

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[Sarah Gibson (Chippenham) (LD)]

It is a pleasure to serve under your chairship this afternoon, Ms Vaz. I share the passion of the hon. Member for West Suffolk for education—as I stated earlier, both my parents became headteachers before retirement—so I appreciate that he is very concerned about the state of education in our country. However, I am very concerned that this amendment is in danger of creating a slightly two-tiered system between maintained schools and academies, whereby maintained schools would have a certain level of protection for their staff that would not be there in academies.

If this change is so important for the academies, my question to the hon. Members for Mid Buckinghamshire and for West Suffolk would be that, if this is good for academies, surely it is good for maintained schools? In that case, why are we not arguing that this whole Bill should be changed, and that this whole clause should be taken out and the change therefore applied to all schools?

I am also concerned about the separation of requirements for one school and not for the other.

[Greg Smith]

Does the point the hon. Lady is trying to argue go to the very reason for having different types of school in the system? Academies were set up by the last Labour Government for a reason, which was to have additional freedoms such as those the amendment defends. Free schools were set up by the coalition Government, of which the Liberal Democrats were part, to have a different set of freedoms—in that sense, parental and governing body freedoms that are over and above everyone else. If we were to make all schools the same, surely that is an argument for one style of school alone.

[Sarah Gibson]

I appreciate the clarification. The point of free schools and academies was to have a diversity of education. A diversity of employment rights, which is what we are discussing, is a different element. If we end up with a situation where I, as a member of support staff, am looking at two jobs in my region, and one is with a maintained school and one is with an academy, and there is protection for one, I can only see that as detrimental to our academies. I am unable to support a provision that separates those two types of school.

[Greg Smith]

I am grateful to the hon. Lady for giving way once more. She is presuming that the academy would be offering a lower rate, but in fact, it might be the case that, in order to attract staff, the academy offers something much higher.

[Sarah Gibson]

I appreciate the point, and the shadow Minister is quite right: I was assuming that without support there might be such a situation. However, that does not detract from the fact that in most situations, having a body that someone can go to that is independent from their employer has to be a supporting situation. Nobody would go to that body for support if they were being paid above the average in their area.

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The Bill does not need to be amended to strike the right balance between the freedoms we have talked about and the imperative to raise the terms and conditions for school support staff. We will continue to involve stakeholders, including those who represent the interests of academy trusts, in discussions about how this will be implemented, and we will consult on pay protections for individual employees next year in advance of secondary legislation. I therefore invite the shadow Minister to withdraw his amendment.

[Greg Smith]

I listened very carefully to what the Minister and the hon. Member for Birmingham Northfield said about amendment 168. I was open to dialogue on it to see if we can make it stronger and improved. Its proposed new subsection (2) sets out all the information we would expect to see in such a framework. There are five parts including the remuneration of school support staff; the terms and conditions of employment of school support staff; the training of school support staff; career progression for school support staff; and—the lovely catch-all phrase that drafters love to put in—all related matters. I would say that it is pretty clear what we have laid out.

To get to the nub of the argument, this is not about some sort of race to the bottom. It is not about, as the Minister asserted, arguing for low pay. That is not what we are doing at all. This is a point of principle about support for the academy system, which was brought in by a former Labour Government, and support for free schools, which was brought in by a coalition of the Conservatives and Liberal Democrats. The three main parties in this House on that basis are broadly aligned, unless anyone has radically changed their mind—perhaps they have, and 2015 probably did focus some minds.

This is a point of principle of diversity in the education system, and central to the diversification of offer is that those establishments, in this case academies, have the freedoms to decide things themselves, locally. In this case, it is on pay and terms and conditions but, wary of the fact that I do not want to go out of scope, it can be on other things as well. To take that away would be the retrograde step that I spoke about. It would undermine academies, and it would undermine the very point of having choice and the diversity of offer in the education system for parents.

[Justin Madders]

The shadow Minister is talking about choice, but the Bill does not remove any academies from the current system. Will he confirm that?

[Greg Smith]

No, of course it does not remove academies from the system, but it does take away a freedom and power that all those wonderful academies, many in my own constituency and I am sure some in the Minister’s, currently enjoy to be able to set their educational offer, including the power of who they recruit and on what basis they recruit them. I come back to the point I made when I intervened on the hon. Member for Chippenham; if we are going to just make everything the same again, there needs to be an honesty about actually advocating that from the Government, from the Liberal Democrats or from whoever it might be. I value and welcome the choice that we have in our education system, and this is one of those freedoms that makes that choice possible.

[Sarah Gibson]

Will the hon. Gentleman give way?

[Michael Wheeler (Worsley and Eccles) (Lab)]

Will the hon. Gentleman give way?

[Greg Smith]

I will give way to the hon. Lady first.

[Sarah Gibson]

I could not agree more with the hon. Gentleman about the importance of diversity of education. One of the things that academies and free schools have done very well is cater for children with learning difficulties, whether they are dyslexic or autistic, or doing all the other things that probably many of us in this room have benefited from. However, basic rights as an employee of an institution and the right to protection and a body to go to if somebody feels that they are being unfairly treated have little to do with diversity of education. I cannot help feeling that we are conflating the two issues of employment rights and educational standards, which do not necessarily go hand in hand. Paying staff well does not stop an institution having a diverse and fantastic form of education.

[Greg Smith]

I think the hon. Lady has potentially misinterpreted my remarks. I am not directly conflating the pay of staff with the educational outcome: I am saying that there are academies that may well be able to structure their own affairs in the way they recruit, pay and set terms and conditions so that that is actually more favourable. That is one of those fundamental freedoms that make academies—and free schools, for that matter—different and able to offer the diversity that we both seem to celebrate, particularly in supporting those children who need additional support to whatever degree in that setting. Someone else was waving at me a minute ago.

[Michael Wheeler]

I am more than happy to wave in a friendly manner in this festive sitting. As usual, I draw attention to my declaration in the Register of Members’ Financial Interests of my membership of the GMB and USDAW. We have heard the phrase “academy freedoms”, with a lot of emphasis put on freedoms. We have also heard the Minister confirm that diversity is not being lost in terms of educational choice. We have heard that teaching assistants, according to the Low Pay Commission, have unfortunately been defined as low-paid workers. Does the hon. Gentleman accept that the only “freedom” —I use inverted commas there, for the sake of the record—being lost is the ability of academies and free schools to pay poorly?

[Greg Smith]

I understand the point that the hon. Gentleman makes, but I caution him against this presumption that those academies want to pay poorly, somehow mistreat their staff or set pay rates so low that most of us would think that it was an absurdity. I am not sure that they do; I am not sure that anybody wants to pay their staff as low as they can get away with. Those academies often advertise and appeal for staff, be they teaching assistants, teachers, ancillary staff or whoever, in a manner that actually makes them more attractive than the other offerings. That is part of the freedom to set up the school in the way that they wish and to ultimately deliver the best possible outcome for the children they are teaching and preparing for their future lives.

I come back to the point that if we start stripping away the freedoms and rights of those establishments to have local control, in this case around employment, I do not see any other natural conclusion than trying to bring our entire educational establishment back into being one single style of education. There may be some on the left—I say “the left” broadly; I am not just looking at the Labour party—who would welcome going back to simply having the secondary modern or whatever it might be. To be fair to her, the hon. Member for Chippenham agreed with me on the point of diversity and choice in education. It is a huge strength and a benefit to all children in this country that we have that level of different offering and choice in our educational establishment, and it has made our country fundamentally better. For total fairness, I repeat the fact that it was the last Labour Government who introduced academies.

[Nick Timothy]

I reassure my hon. Friend that the danger he is talking about is not just hypothetical. Special advisers in the Department for Education have briefed the newspapers, calling free schools a “Tory vanity project”. I find that absolutely appalling, as somebody who believes—

[Nick Timothy]

Yes, and free schools have the academy freedoms that we are talking about undermining with this and other legislation. I just wanted to draw that example to my hon. Friend’s attention.

[Greg Smith]

I am grateful to my hon. Friend; he is always reassuring. He raised an important point. Given that, as he highlighted, free schools enjoy the same freedoms —they are specifically referred to in amendment 168—as academies, I am worried that the Government’s attitude to free schools indicates that they are rowing back on support for them.

[Justin Madders]

The shadow Minister keeps referring to freedoms, but does he accept that the only freedom that would be given to academies by virtue of this amendment would be the freedom to pay their staff—I am not saying that they would—lower than the national terms and conditions?

[Greg Smith]

I come back to this point of principle: either we have autonomous bodies that can make their own decisions or we do not. If the Government’s answer is that we do not, I certainly understand why they do not want this amendment, but I do not understand why they persist with their support for that which they created in the first place—the academisation of so many schools—and resist making the more straightforward argument for a one-size-fits-all education policy. I hope they do not adopt such a policy, because of the progress that the Labour party made through academisation in the first place. However, that is the natural conclusion of what the Minister is saying.

[Alex McIntyre (Gloucester) (Lab)]

I refer to my membership of the Community and GMB unions. In the break, the shadow Minister challenged me, saying that I had been very quiet this morning—I was feeling festive, but perhaps I am feeling less festive now. Let us take the analogy about choice that he is trying to set out and put it in a slightly different context. Private limited companies are often seen as the drivers of growth, and we have heard lots about that from the Opposition. Those companies have lots of freedoms to make decisions and to invest where they want, but they are all subject to the national minimum wage. Is the shadow Minister suggesting that a national set of terms and conditions will remove academies’ freedom to make entrepreneurial decisions? I am interested to hear whether the Conservative party’s position is now that the national minimum wage should also be abolished.

[Greg Smith]

No. I did challenge the hon. Gentleman on his quietness in the morning sitting, and he has not disappointed this afternoon, but of course that is not the position of the official Opposition. The last Labour Government brought in the national minimum wage, but the last Conservative Government brought in the national living wage. We are absolutely committed to that, but it is a rule that applies equally and evenly across every sector in the economy. In schedule 3 and amendment 168, we are talking about a specific carve-out of an existing position for one specific sector.

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[Justin Madders]

Amendments 66 and 67, and 69 to 71, make minor drafting corrections to the clauses to remove the word “education” when referring to local authorities. This is necessary because of an error in terminology used in the Bill on introduction.

I will also speak to amendment 68. We know that academy trusts use a range of innovative practices to support staff in a range of roles. The sector and the workforce have evolved since the previous negotiating body for school support staff existed in 2009. That is why we intend to consult on the definition of support staff in scope and appropriate protections for staff in transitioning to the new arrangements. The consultation may bring to our attention staff in academy trusts who are not captured by the existing definition of support staff, working wholly at one or more academies, but who we think should be. Having the ability to broaden the scope, as well as to exclude staff types in secondary legislation, would give us more flexibility to respond to the consultation.

[Greg Smith]

As the Minister said, amendment 68 extends the definition of school support staff in the Bill to include people who do not work in an academy, but who are employed by the proprietor of an academy to carry out particular kinds of work, to be specified in regulations—it is our old friend, waiting for future regulations to be laid before the House—for the purposes of one or more academies. The other amendments in this grouping are minor drafting corrections, and we accept that. I merely want to put on record once more that had this Bill not been so rushed to meet the arbitrary political 100-day deadline, we might not be in this place, and we might have had greater clarity from the get-go. We accept, however, that these are fundamentally minor amendments that really should have been included at introduction.

[Justin Madders]

The shadow Minister’s comments are noted, and I commend the amendments to the Committee.

Amendment 65 agreed to.

Amendments made: 66, in schedule 3, page 116, line 8, leave out “education”.

See the explanatory statement for amendment 65.

Amendment 67, in schedule 3, page 116, line 10, leave out “education”.

See the explanatory statement for amendment 65.

Amendment 68, in schedule 3, page 116, line 13, leave out from “employment” to end of line 14 and insert “which—

(i) provides for the person to work wholly at one or more Academies, or

(ii) provides for the person to carry out work of a prescribed description for the purposes of one or more Academies.”

This amendment extends the definition of “school support staff” in new Part 8A of the Education Act 2002 to include people who do not work at an Academy but are employed by the proprietor of an Academy to carry out particular kinds of work (to be specified in regulations) for the purposes of one or more Academies.

Amendment 69, in schedule 3, page 123, line 31, leave out “education”.

See the explanatory statement for amendment 65.

Amendment 70, in schedule 3, page 123, line 33, leave out “education”.

See the explanatory statement for amendment 65.

Amendment 71, in schedule 3, page 124, line 13, leave out “education”.—(Justin Madders.)

See the explanatory statement for amendment 65.

[Greg Smith]

I beg to move amendment 123, in schedule 3, page 124, line 39, at end insert—

“(2A) Before making or revising arrangements under sub-paragraph (1), the Secretary of State must publish and lay before Parliament an impact assessment of the costs on the education sector of any proposed arrangements.”

This amendment makes a requirement from the Secretary of State to undertake an impact assessment of the costs on the education sector before making or changing arrangements related to the School Support Staff Negotiating Body.

[The Chair]

With this it will be convenient to discuss amendment 124, in schedule 3, page 126, line 9, at end insert—

“(1A) The report must include an assessment of the increased costs to the education sector of any pay and conditions agreements made in that reporting year.”

This amendment requires the annual reports of the School Support Staff Negotiating Body to include the cost of pay and conditions agreements.

[Greg Smith]

Amendment 123 requires the Secretary of State to undertake an impact assessment of the costs to the education sector before making or changing arrangements related to the school support staff negotiating body. I have already spoken, probably at greater length than anybody particularly wished me to, about our reservations over the re-establishment of the body—in particular the way that it will override the traditional academy freedoms that seem to trigger Government Members so much.

I am interested in what assessment the Secretary of State has undertaken about the current arrangements for pay and conditions for support staff, and in whether the Minister can provide concrete evidence about the shortcomings and how those would be rectified by re-establishing the school support staff negotiating body. In other words, is the policy driven by evidence or by ideology? The amendment asks for the Secretary of State to come clean about the costs of the proposed arrangements, not just to the schools budget but to pupils in schools.

We had some back-and-forth earlier about how, if they are to work, the changes made by the Bill need to marry up with the real-life pay settlements and budgets made available by the Treasury. Otherwise, the net result will be that schools will have to obey the rules as set out in the Bill without getting any additional money to pay for doing so. Who will suffer if the school is asked to do that? It will be the children and pupils, because of the number of textbooks, laptops, iPads or interactive screens and boards—all the things that are used in education—that the school can buy.

[Laurence Turner]

I am trying to understand what the shadow Minister means by cost to the education sector. Does he mean the running cost of the body itself or the cost of an agreement? If he means the latter, how could that possibly be accounted for when, as we have heard, any new pay scale is likely to be some years away and would be subject to negotiation?

[Greg Smith]

The answer is, of course, both. There will be a cost to the body and a cost to the individual education establishments—the academies, free schools and so on—that still fundamentally rely on a funding settlement. One pot of money can only go so far. I accept that the body itself will be separately funded, but the pay awards that individual schools would have to make will not. If schools are being asked to swallow the cost, they will have to find it within their budgets.

I am sure that I am not alone in having visited schools—other hon. and right hon. Members will have done so in their own constituencies—where headteachers say that they have to have this debate when setting their budget every year. Over the decades, Governments of all political persuasions have given them things to deliver and rules to follow but only one pot of money, so something has to give. If they are to follow the rules, the ones who suffer are children, through the equipment and books that the school is able to purchase.

The amendment is a reasonable one. It requires one of those impact assessments, so that we can all be absolutely clear. When we vote, in whichever way, on this Bill as it passes through Committee, Report and Third Reading, as well as ping-pong with the other place, we can be really clear about what these provisions mean on the ground for real schools and real children going through their education. As I think we all accept, that is so important to their future lives.

Amendment 124 requires the annual reports of the school support staff negotiating body to include the cost of pay and conditions agreements. We believe it is important that there is transparency over the additional costs and burdens that this new body will impose on school employers. What might those costs be? Will the Department for Education appropriately compensate school employers for them? I will not repeat the arguments that I made on amendment 123, but the point is fundamentally the same. The amendments are designed to probe the Government properly on what the measure will mean in the real world.

[Laurence Turner]

I want to come back on some of the points that the shadow Minister raised. I appreciate his clarification about exactly what information the Opposition are trying to tease out with amendment 124. I hope he does not mind me saying that the cost of any future settlement agreement is speculative in nature. We heard from the Minister earlier that part of the remit that Ministers will give the body will be about affordability and the funding available at the time. It will probably be several years in the future when that new pay scale comes into force, albeit that there is some good work that the SSSNB could be getting on with in the interim that would have very low costs for the sector.

We have some information about how much the body itself would cost. An answer to a written parliamentary question in 2011 put the estimated cost saving of abolishing the SSSNB at £1.4 million over the spending review period. That was about £350,000 a year. In today’s prices, we are looking at close to half a million. That is a very small fraction of a percentage of the Department’s budget, and it is probably an overestimate given that civil service wages have not kept pace with inflation over that time. The former education spokesperson for the Labour party, Andy Burnham, who was involved in the setting up of the original SSSNB, described it as a “low-cost panel”. That is exactly what we are talking about here. I hope that that provides some reassurance that amendment 124 is not necessary.

The SSSNB produced annual reports, which were published by the Government in the normal way. The Department for Education tracks the costs of school support staff pay increases. That information is made available, including to sector representatives, through the schools and academies funding group. I hear what the shadow Minister says, but I do not think these amendments are necessary because the information is unknowable or already available, or it will be made available in the normal course of business.

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Finally, the shadow Minister challenged us on the evidence base for the need for this body. I remind him again of the survey of teaching assistants, 27% of respondents to which said that they were considering leaving education altogether; low pay and lack of opportunities for progression were the main two reasons. Up to 89% of schools reported difficulties in recruiting teaching assistants with the desired levels, and similar figures were reported in respect of the recruitment challenges for teaching assistants with SEND specialities. Alongside the other evidence that we have heard today, particularly the Low Pay Commission’s classification of teaching assistants, I suggest that there is more than ample evidence of the need for SSSNB to be constituted. I therefore ask the shadow Minister not to press his amendments.

[Greg Smith]

I cannot remember a single time in the last Parliament when the then Opposition would have made the case that there was no need for an impact assessment. I put that to the Minister very gently as a point of principle that is specific to amendments 123 and 124. However, I understand the argument that he is making.

The Opposition still think that the Bill’s approach is flawed as to diversity across our educational establishments. We will not press our amendments to a Division now, but we reserve the right to revisit the matter when we come up for air on Report, once the Minister has had time to reflect on the implications of his policy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule, as amended, be the Third schedule to the Bill.

[Justin Madders]

As the Committee has discussed, clause 28 introduces schedule 3, which provides for the establishment, remit and functioning of the school support staff negotiating body. Paragraph 1 of schedule 3 will insert into the Education Act 2002 a new part 8A, which contains proposed new sections 148A to 148R.

New section 148A will reinstate the SSSNB as an unincorporated body. Reinstating the SSSNB will give school support staff the voice and recognition that they deserve as a crucial part of the school workforce. It will help to address the recruitment and retention challenges facing schools and will drive standards in schools to ensure that we give every child the best possible chance in life.

New section 148B sets out the remit of the SSSNB for remuneration, terms and conditions of employment, training and career progression of school support staff, and the powers of the Secretary of State to define what is or is not to be treated as falling within those categories within the regulations. This ensures clarity over the remit of the SSSNB and what can and cannot be referred to it by the Secretary of State. The remit will lead to a national terms and conditions handbook, fair pay rates and clearer training and career progression routes for school support staff in England.

New section 148C defines school support staff in relation to who they are employed by and their role. Support staff are defined as all staff, other than qualified teachers, who are employed by local authorities, governing bodies and academy trusts to work wholly at schools in England. The 2009 SSSNB included only those support staff employed by local authorities and governing bodies to work in maintained schools within its scope. Support staff employed by academy trusts are now included in the SSSNB’s remit, despite the shadow Minister’s attempts to persuade us otherwise.

It is crucial that the body have a remit for all state-funded schools in England to achieve greater national consistency, irrespective of the type of school in which support staff work. Roughly half of the 24,453 schools in England are now academies, compared with approximately 200 in 2009 when the body was previously established. New section 148B gives the Secretary of State a power to prescribe in regulations those who will not fall within the SSSNB’s remit.

Amendment 68 will allow the Secretary of State to include, through secondary legislation, those who do not work wholly at academies within the SSSNB’s remit, by reference to the type of work that they do. The Department currently holds limited information about the roles in which support staff are employed in academies or the terms and conditions under which they work. It intends to consult on which roles should and should not be within scope of these provisions. These powers will provide the necessary flexibility to respond to that consultation and amend the remit of the SSSNB as necessary.

New section 148D sets out the power of the Secretary of State to refer matters to the SSSNB that are within its remit, namely those matters relating to remuneration, terms and conditions of employment and training and career progression of school support staff. Referrals by the Secretary of State to the negotiating body will mean that those representing employers and employees can agree and advise on suitable outcomes for school support staff within the parameters set out by the Secretary of State in relation to wider Government priorities and context.

New sections 148E and 148F set out the powers of the Secretary of State when referring matters relating to remuneration, terms and conditions of employment and training and career progression to the SSSNB. The Secretary of State may specify factors that the SSSNB must consider and a timescale for their consideration. The new sections set out the steps that the SSSNB must take, depending on whether it has or has not reached agreement on matters relating to terms and conditions. Where the Secretary of State refers a matter relating to the training and career progression of school support staff to the SSSNB, the SSSNB is required to provide a report on the matter to the Secretary of State, rather than reaching agreement.

New section 148G will give the SSSNB the power to consider matters within its remit that have not been referred to it, with the Secretary of State’s agreement. This will give the SSSNB the ability to raise alternative matters that it wishes to negotiate or advise on. Agreement from the Secretary of State is required from the outset to ensure that no work is undertaken on a matter that could be considered to be outside the SSSNB’s remit. It will also ensure that the body has sufficient capacity to consider referred matters within the required timescale, alongside any additional matters that the SSSNB wishes to consider.

New section 148H sets out the Secretary of State’s powers in relation to agreements submitted by the SSSNB. The Secretary of State may ratify an agreement in secondary legislation in full or in part—if in part, the part not ratified falls away—or refer the agreement back to the SSSNB to reconsider it under new section 148I. This power is necessary to ensure that any agreements are practicable—for example, that they are affordable—before being incorporated into contracts. The ability for the Secretary of State to ratify agreements in part is a pragmatic approach to allow matters with agreement to progress and to avoid delays if there is an element of an agreement that the Secretary of State is not content to agree.

New section 148I sets out what happens where the Secretary of State refers a matter back to the body for reconsideration. The Secretary of State may specify factors to which the body must have regard in reconsidering the agreement and by when it must revert.

New section 148J will apply where the SSSNB has submitted an agreement to the Secretary of State after reconsideration. The Secretary of State has powers to ratify the agreement in full or in part in regulations; to refer the agreement back to the SSSNB for reconsideration; to make regulations requiring prescribed people to have regard to the agreement in exercising prescribed functions; or to make regulations that make alternative provision in relation to the same matter. The new section gives the Secretary of State a range of powers to determine the best course of action based on the agreements from the SSSNB to ensure that the desired outcomes for school support staff are met and are practicable.

New section 148K sets out the process if an agreement cannot be reached by the SSSNB on a matter relating to school support staff remuneration and terms and conditions referred to it by the Secretary of State. The Secretary of State may specify a later date by which agreement must be reached or may make regulations in relation to the matter referred to the SSSNB if there is an urgent need to do so, but the Secretary of State must consult the SSSNB before making those regulations. This will ensure that the Secretary of State is able to regulate as necessary in the event that agreement cannot be reached, for instance on a pay award for school support staff.

New section 148L sets out the Secretary of State’s powers if the SSSNB fails to submit a report on a matter relating to the training and career progression of school support staff by the deadline set by the Secretary of State. The Secretary of State can specify a later date for the SSSNB to report or issue guidance on the matter. This ensures that the Secretary of State can still issue guidance on training and career progression to support recruitment and retention in the absence of a report from the body.

New section 148M sets out the effect of regulations made by the Secretary of State that ratify agreements reached by the SSSNB in full or in part. The terms of the agreement are imposed in a person’s contract of employment so that a member of school support staff must be paid and treated in accordance with those conditions. Any inconsistent terms in contracts of employment or academy funding agreements have no effect. That allows the Secretary of State to make changes to the pay and terms and conditions of school support staff as agreed by the SSSNB, in order to ensure fairer pay rates and greater national consistency, boost recruitment and retention in those roles, and drive improved standards in schools.

New section 148N sets out the effect of regulations made by the Secretary of State where she decides not to ratify agreements reached by the SSSNB or where the SSSNB fails to reach agreement on a matter. Where the Secretary of State decides to make regulations imposing terms and conditions into school support staff contracts, for example because there is an urgent need to make changes to terms and conditions and the SSSNB has failed to reach agreement on them, school support staff must be paid and treated in accordance with those terms and conditions. It is important that the Secretary of State has the ability to legislate to provide fair terms and conditions for school support staff in the event that the SSSNB fails to reach an agreement.

New section 148O will allow regulations made under part 8A to have retrospective effect, subject to their not subjecting anyone to a detriment in respect of a period that falls before the date on which the regulations are made. This will allow the Secretary of State to backdate pay awards agreed after the start of an annual pay period to ensure that school support staff may benefit from them for the entirety of the period.

New section 148P sets out how and when the Secretary of State and the SSSNB can issue guidance on matters within the SSSNB’s remit. The SSSNB, with the Secretary of State’s approval, can issue guidance on pay and terms and conditions, as can the Secretary of State. Only the Secretary of State can issue guidance on training and career progression. Local authorities, governing bodies and academy trusts are required to have regard to guidance issued. This will allow the Secretary of State and the SSSNB to support employers in the implementation of new terms and conditions and the promotion of training and career progression opportunities for school support staff.

New section 148Q will provide a carve-out for the SSSNB framework from the collective bargaining provisions in the Trade Union and Labour Relations (Consolidation) Act 1992. The new section is necessary to ensure that agreements reached by the SSSNB can be imposed in contracts only through ratification by the Secretary of State.

Paragraph 2 of schedule 3 will insert a new schedule 12A into the Education Act 2002. New schedule 12A includes provision for the SSSNB to be constituted in accordance with arrangements made by the Secretary of State. School support staff and employer representative organisations on the SSSNB will be set out in secondary legislation; the Secretary of State will be required to consult the TUC before prescribing which organisations represent school support staff.

The membership of the SSSNB will include support staff, employee and employer representatives, an independent chair and a representative of the Secretary of State. It may also include members who do not represent school support staff or their employers. However, only school support staff and employer representatives will have voting rights. The new schedule also provides for administrative support to be provided to the SSSNB, including for the Secretary of State to pay expenses for the chair and for administrative costs incurred by the SSSNB. The SSSNB is required to provide a report for each 12-month period.

I commend schedule 3, as amended, to the Committee.

[Greg Smith]

After that lengthy oration from the Minister, I can only conclude that when it takes that long to explain something, a bureaucracy is coming that probably nobody wants. As we rehearsed during our debates on amendments to the schedule, it challenges in many respects the freedoms that some of our education establishments enjoy.

As the Bill leaves Committee at some point in January and heads back to the main Chamber for Report, I urge the Minister to reach out to educational establishments—and perhaps to the Department for Education, but real-world schools are probably better—and reflect on the impact that this new bureaucracy will have on them. Is it as streamlined as it can humanly be? The Minister was on his feet for seven or eight minutes trying to explain that bureaucracy. In fairness, he did a commendable job of it, but that does not necessarily make it right. Whether we are in opposition or in government proposing things, we too rarely ask ourselves in the House: have we collectively got this right?

The Opposition believe that this new body—which we in government, along with the Liberal Democrats, removed—should not be brought back in. There is a better way of achieving some of the noble aims that the Government have in this regard and avoiding some of the potential catastrophes that we spoke about earlier. We therefore cannot support the schedule remaining in the Bill.

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Power to establish the Adult Social Care Negotiating Body

[Greg Smith]

I beg to move amendment 121, in clause 29, page 41, line 34, at end insert—

“(5A) No regulations may be made under this section before the Secretary of State has published and laid before Parliament an impact assessment of the costs on the social care sector of any proposed Adult Social Care Negotiating Body.”.

This amendment makes a requirement from the Secretary of State to undertake an impact assessment of the costs on the social care sector of any newly proposed Negotiating Body.

[The Chair]

With this it will be convenient to discuss amendment 122, in clause 29, page 41, line 34, at end insert—

“(5A) Regulations under this section must, for any Negotiating Body established under subsection (1), include a requirement for annual reports to be published and laid before Parliament.

(5B) Annual reports, required under subsection (5A) must include an assessment of the increased costs to the social care sector of any pay and conditions agreements made in that reporting year.”.

This amendment would require any Negotiating Body established under these regulations to publish annual reports setting out the cost of pay and conditions agreements.

[Greg Smith]

Amendment 121 would require the Secretary of State to undertake an impact assessment of the costs on the social care sector of any newly proposed negotiating body. Amendments 121 and 122 mirror those tabled in relation to the school support staff negotiating body that we have just spent the best part of an hour and a half debating. That is because our concern is essentially identical: that this is ideologically driven policy, not evidence-based policy.

Can the Minister provide the Committee with the evidence that the adult social care negotiating body is necessary? Has the Department of Health and Social Care made any assessment of the additional costs that may be incurred by the sector? Given that social care is provided across multiple platforms—to use a generic term—from the NHS to local government to many private sector providers, this measure will cross a number of sectors responsible for providing social care, and it is important that there is a cross-governmental impact assessment alongside it that provides a clear understanding of the costs involved to all parties, particularly local government, which is facing extraordinary pressures at the moment.

We have seen what has happened with councils such as Birmingham, which reached the point of bankruptcy, and with other councils that are under considerable financial pressure. When I speak to my council in Buckinghamshire, I hear that much of that pressure is driven by social care. It is a good problem to have; medical advances and technologies are ensuring that people have longer lives, but there is then the requirement for adult social care for far longer than was previously the case. The burden of that is falling disproportionately on local government budgets at the moment, and the Deputy Prime Minister and her Department need a clear understanding of the impact on the local government cost base.

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[Justin Madders]

The shadow Minister will not be surprised to learn that we do not support his amendments. Amendment 121 seeks to require an assessment of the impact of the new negotiating body on the adult social care sector. The Government have already produced a comprehensive set of impact assessments for the Bill, including one on the fair pay agreement for adult social care. That was published on Second Reading and was based on the best available evidence regarding the potential impact on businesses, workers and the wider economy.

The adult social care fair pay agreement will be subject to sector-wide collective bargaining and negotiation. At this stage, our impact assessment provides an illustrative analysis of its potential impact, including the magnitude of the cost to businesses, as well as the benefits for up to 1.6 million social care workers. We intend to refine that analysis over time, working closely with businesses, trade unions, academics and, of course, the Department of Health and Social Care.

As is standard practice, we will publish an enactment impact assessment once the Bill reaches Royal Assent, in line with the better regulation framework requirements. That will account for where the Bill has been amended in its passage through Parliament in such a way as to significantly change its impacts on business. That impact assessment will be published alongside the enacted legislation. In addition, the Government will produce an impact assessment to accompany regulations connected to the establishment of the negotiating body.

The Minister asked why the body is needed—what is the evidence base? He will be aware of the evidence given to the Committee, both orally and in writing, about its importance. The hon. Member for Chippenham spoke of the need for a level playing field, which is certainly a big part of what we are looking at here, because many of us will know from our experiences in our constituencies—never mind the evidence before the Committee—that, fundamentally, the adult social care sector is in desperate need of help. We have known that for a very long time, and if Members care to look at the Low Pay Commission’s recent reports, they will see that it has dedicated a considerable amount of space in them to the challenges in the sector. Trade unions, of course, have also been calling for action in this area for many years.

It is also well known that there are huge recruitment and retention challenges in the adult social care workforce. It is a very large sector, employing about 1.6 million workers, which is about 5% of all people in adult employment, and it plays an important role. The people in those roles are predominantly women and, as was noted during the evidence sessions—and backed up by the analysis in the impact assessment—there are about 130,000 vacancies at the moment. It was also noted that filled posts have reduced by 4% recently, and that the shortfall since 2022 has been plugged primarily by overseas workers, which we know is a topic of great interest.

The turnover rate in the sector is incredibly high: it has been higher than 25% since 2016 and was consistently over 30% between 2017-18 and 2022-23. There were some improvements last year, but that was largely driven by international recruitment, and the turnover rate is generally much higher than the UK average. The impact assessment notes that, while some movement is healthy, the higher rates witnessed can be disruptive and impact not only productivity, but the quality of service, with recipients of care not getting continuity. I think we can all recognise the situation in which a person in receipt of care has a different person turning up every day and how disruptive that can be. It is important to note that recipients of care, and not just the workers, will benefit from the Bill.

We know that low pay is rife, as has been identified by the Low Pay Commission. In December 2023, the average wage was £11, and nearly 70% of workers were paid within £1 of the minimum wage. In the last two reports by the Low Pay Commission, space has been dedicated to underpayment in the sector. In its latest report, the Low Pay Commission said:

“In the social care sector, non-compliance appears persistent”.

The shadow Minister asked a wider point about travel costs. He will no doubt welcome the announcement in the Budget that we are freezing fuel duty, but the cost of travel is a much broader issue than the point he raised. Clause 30 will allow broader questions of terms and conditions to be considered. Clause 39 is also important, because it deals with record keeping. We know from research by Unison that about one quarter of domiciliary care workers are repaid only for travel time, and only 18% of them have the travel time listed on their payslips. Given that these people often earn close to the minimum wage, this is an absolute scandal that needs to be addressed. The shadow Minister made an important point about travel, but we hope that the fundamentals of ensuring that people are paid for that travel time will be addressed by the negotiating body.

Let me turn to amendment 122. The Government are committed to engaging with the adult social care sector on the design of a fair pay agreement, including how the negotiating body will be set up, how it should operate and how negotiations will run. The powers under clause 29 allow for the Secretary of State to create the adult social care negotiating body by regulations and to provide for the smooth and efficient running of that body. The regulations will confirm the type of body being created. The power also allows for reporting requirements to be imposed on the negotiating body, such as producing reports. Engagement with the sector will ultimately influence the type of body that the negotiating body actually becomes. All public bodies have specific reporting requirements to meet transparency standards.

I can confirm that the Department of Health and Social Care has committed to publishing an impact assessment on establishing fair pay agreements in the adult social care sector to accompany the secondary legislation required to establish the negotiating body. It is intended that the assessment will include an analysis of the potential costs and benefits that will arise from a fair pay agreement. On that basis, I invite the shadow Minister to withdraw his amendment.

[Greg Smith]

I am grateful to the Minister for his remarks, and not least for acknowledging the importance of the points about just travel time and about compensation for using one’s own vehicle and having to purchase the petrol, diesel, electricity, hydrogen or whatever to get around—in a brave new world, who knows what it might be? I invite him to ensure that that can be locked into, whatever the negotiating body has the power to do. I say that not least for rural communities such as mine, where it is not unusual for someone to have to travel for half an hour between many of the villages, and from one person they are caring for to another. That adds up very quickly in terms of not just time, but the cost of the fuel to get them there and the wear and tear on the vehicle’s brakes, tyres and so on.

We will not press these amendments to a Division. However, as the Minister reflects on this issue, I urge him to again ensure that the way in which this new body will inevitably be set up accounts for the multiple different platforms of provision across local government, the private sector and the not-for-profit sector, which the hon. Member for Chippenham talked about. This is a much more complex arena than that of schools, which is much more heavily defined—we spoke about that earlier. I urge the Minister to reflect on that as he potentially brings forward Government amendments or minor surgery to the Bill ahead of Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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[The Chair]

I call the shadow Minister—follow that!

[Greg Smith]

As we prepare to begin the 12 days of Christmas, we have the 16 clauses of the adult social care negotiating body. I am not sure which has the better ring to it, but I think only one ends with a partridge in a pear tree.

I have a few questions for the Minister after his impressive run-through of the 16 clauses. I might not have agreed with every word he said, but we have to acknowledge a powerful performance, and he went through such technical detail with such speed. In clause 29, yet again we have the powers to set up a body but only after engaging the sector. There is nothing wrong with engaging the sector, and we encourage regular engagement with any and every sector, but this is yet another example in the Bill of legislate first, consult second. That is always a concern whenever it comes up, and not least on clause 41, where the Minister repeatedly referred to certain retrospective powers.

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The shadow Minister asked about the word sufficient in clause 32. I do not know whether that was a trick question, because we could not find the word sufficient anywhere in that clause. Perhaps he may want to intervene on me—he might have been referring to another clause.

[Greg Smith]

I took careful notes, and we can check Hansard later, but I am pretty certain that the Minister himself used the word sufficient in his remarks.

[Justin Madders]

We may have to write to the hon. Member on that. Having furiously double-checked clause 32 during the other hon. Members’ speeches, I cannot find the word sufficient.

My final point relates to the powerful contribution from my hon. Friend the Member for Scarborough and Whitby about her personal circumstances and how important it is that we get this right. It is people such as her son who have benefited from good support in social care, and at the end of the day, they are the people who will benefit from stability and security in the workforce and better retention rates. This is about the workforce, but it is also about the people who receive the care, and it is about time that we gave them more priority. That is why these clauses are so important, and I therefore commend them to the Committee.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Clauses 30 to 44 ordered to stand part of the Bill.

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[The Chair]

I thank your officials for their work.

[Greg Smith]

Further to that point of order, Ms Vaz. I seek your guidance on how we might put it on the record that we wish a very merry Christmas to everyone involved in this Bill Committee. I might not agree with every word of the Bill, but I appreciate all the work that the civil servants put into supporting the Minister and the Government—and, likewise, for the Opposition, the hard work of all the Clerks, as well as Hansard, the Doorkeepers and security. I wish Members of all parties a very merry Christmas.

[The Chair]

Thank you, and thank you to all hon. and right hon. Members, the officials and the Clerks, who have been very supportive.

Ordered, That further consideration be now adjourned. —(Anna McMorrin.)