Digital Economy Bill (Eleventh sitting)

Debate between Kevin Brennan and Louise Haigh

Committee Debate: 11th sitting: House of Commons
Tuesday 1st November 2016 Public Bill Committees

[Kevin Brennan]

I will, but I do not think that there is any real need for the Minister not to commit carrying the measure out in the Bill. It simply extends what is already available. If someone borrowed an e-book by turning up at a library, the author would receive their public lending right, but if they did so remotely through the same library service, the author would not. Clearly that is an unacceptable injustice and anomaly.

The Minister has said that the Government need to take their time. It was March 2013 when they said in their response to the independent review that they intended to reflect that technology change. Three years and eight months later, we have a Bill in Committee in the House of Commons and still the Government say they need to take their time to get it right. This Bill is the right time to get it right. I hope the Minister will reflect further on the raft of amendments to this defective Bill that will be introduced in the House of Lords if we do not put this right in the House of Commons. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 19

Personal data breaches

‘(1) The Data Protection Act 1998 is amended as follows.

(2) After section 24 insert—

“24A Personal data breaches: notification to the Commissioner

(1) In this section, section 24B and section 24C, “personal data breach” means unauthorised or unlawful processing of personal data or accidental loss or destruction of, or damage to, personal data.

(2) Subject to subsections (3), (4)(c) and (4)(d), if a personal data breach occurs, the data controller in respect of the personal data concerned in that breach shall, without undue delay, notify the breach to the Commissioner.

(3) The notification referred to in subsection (2) is not required to the extent that the personal data concerned in the personal data breach are exempt from the seventh data protection principle.

(4) The Secretary of State may by regulations—

(a) prescribe matters which a notification under subsection (2) must contain;

(b) prescribe the period within which, following detection of a personal data breach, a notification under subsection (2) must be given;

(c) provide that subsection (2) shall not apply to certain data controllers;

(d) provide that subsection (2) shall not apply to personal data breaches of a particular description or descriptions.

24B Personal data breaches: notification to the data subject

‘(1) Subject to subsections (2), (3), (4), (6)(b) and (6)(c), if a personal data breach is likely to adversely affect the personal data or privacy of a data subject, the data controller in respect of the personal data concerned in that breach shall also, without undue delay, notify the breach to the data subject concerned, insofar as it is reasonably practicable to do so.

(2) The notification referred to in subsection (1) is not required to the extent that the personal data concerned in the personal data breach are exempt from the seventh data protection principle.

(3) The notification referred to in subsection (1) is not required to the extent that the personal data concerned in the personal data breach are exempt from section 7(1).

(4) The notification referred to in subsection (1) is not required if the data controller has demonstrated, to the satisfaction of the Commissioner—

(a) that the data controller has implemented appropriate measures which render the data unintelligible to any person who is not authorised to access it, and

(b) that those measures were applied to the data concerned in that personal data breach.

(5) If the data controller has not notified the data subject in compliance with subsection (1), the Commissioner may, having considered the likely adverse effects of the personal data breach, require the data controller to do so.

(6) The Secretary of State may by regulations—

(a) prescribe matters which a notification under subsection (1) must contain;

(b) provide that subsection (1) shall not apply to certain data controllers;

(c) provide that subsection (1) shall not apply to personal data breaches of a particular description or descriptions.

24C Personal data breaches: audit

‘(1) Data controllers shall maintain an inventory of personal data breaches comprising—

(a) the facts surrounding the breach,

(b) the effects of that breach, and

(c) remedial action taken

which shall be sufficient to enable the Commissioner to verify compliance with the provisions of sections 24A and 24B. The inventory shall only include information necessary for this purpose.

(2) The Commissioner may audit the compliance of data controllers with the provisions of sections 24A, 24B and 24C(1).

(3) In section 40 (Enforcement notices)—

(a) in subsection (1)—

(i) after “data protection principles,” insert “or section 24A, 24B or 24C”;

(ii) for “principle or principles” substitute “principle, principles, section or sections”;

(b) in subsection 6(a) after “principles” insert “or the section or sections”.

(4) In section 41 (Cancellation of enforcement notice”)—

(a) in subsection (1) after “principles” insert “or the section or sections”;

(b) in subsection (2) after “principles” insert “or the section or sections”.

(5) In section 41A (Assessment notices)—

(a) in subsection (1) after “data protection principles” insert “or section 24A, 24B or 24C”;

(b) in subsection (10)(b) after “data protection principles” insert “or section 24A, 24B or 24C”.

(6) In section 41C (Code of practice about assessment notices)—

(a) in subsection (4)(a) after “principles” insert “and sections 24A, 24B and 24C”;

(b) in subsection (4)(b) after “principles” insert “or sections”.

(7) In section 43 (Information notices)—

(a) in subsection 43(1)—

(i) after “data protection principles” insert “or section 24A, 24B or 24C”;

(ii) after “the principles” insert “or those sections”;

(b) in subsection 43(2)(b) after “principles” insert “or section 24A, 24B or 24C”.

(8) In section 55A (Power of Commissioner to impose monetary penalty)—

(a) after subsection (1) insert—

“(1A) The Commissioner may also serve a data controller with a monetary penalty notice if the Commissioner is satisfied that there has been a serious contravention of section 24A, 24B or 24C by the data controller.”;

(b) in subsection (3A) after “subsection (1)” insert “or (1A)”;

(c) in subsection (4) omit “determined by the Commissioner and”;

(d) in subsection (5)—

(i) after “The amount” insert “specified in a monetary penalty notice served under subsection (1) shall be”;

(ii) after “Commissioner” insert “and”;

(e) after subsection (5) insert—

“(5A) The amount specified in a monetary penalty notice served under subsection (1A) shall be £1,000.

(5B) The Secretary of State may by regulations amend subsection (5A) to change the amount specified therein.”

(9) In section 55B (Monetary penalty notices: procedural rights)—

(a) in subsection (3)(a) omit “and”;

(b) after subsection (3)(a) insert—

(aa) specify the provision of this Act of which the Commissioner is satisfied there has been a serious contravention, and”;

(c) after subsection (3) insert—

“(3A) A data controller may discharge liability for a monetary penalty in respect of a contravention of section 24A, 24B or 24C if he pays to the Commissioner the amount of £800 before the time within which the data controller may make representations to the Commissioner has expired.

(3B) A notice of intent served in respect of a contravention of section 24A, 24B or 24C must include a statement informing the data controller of the opportunity to discharge liability for the monetary penalty.

(3C) The Secretary of State may by regulations amend subsection (3A) to change the amount specified therein, save that the amount specified in subsection (3A) must be less than the amount specified in section 55A(5A).”;

(d) in subsection (5) after “served” insert “under section 55A(1)”;

(e) after subsection (5) insert—

“(5A) A person on whom a monetary penalty notice is served under section 55A(1A) may appeal to the Tribunal against the issue of the monetary penalty notice.”

(10) In section 55C(2)(b) (Guidance about monetary penalty notices) at the end insert “specified in a monetary penalty notice served under section 55A(1)”.

(12) In section 67 (Orders, regulations and rules)—

(a) in subsection (4)—

(i) after “order” insert “or regulations”;

(ii) after “section 22(1),” insert “section 24A(4)(c) or (d), 24B(6)(b) or(c),”;

(b) in subsection (5)—

(i) after subsection (c) insert “(ca) regulations under section 24A(4)(a) or (b) or section 24B(6)(a),”;

(ii) for “(ca) regulations under section 55A(5) or (7) or 55B(3)(b),” substitute “(cb) regulations under section 55A(5), (5B) or (7) or 55B(3)(b) or (3C),”.

(13) In section 71 (Index of defined expressions) after “personal data |section 1(1)” insert “personal data breach |section 24A(1)”.

(14) In paragraph 1 of Schedule 9—

(a) after paragraph 1(1)(a) insert—

“(aa) that a data controller has contravened or is contravening any provision of section 24A, 24B or 24C, or”;

(b) in paragraph 1(1B) after “principles” insert “or section 24A, 24B or 24C”;

(c) in paragraph (3)(d)(ii) after “principles” insert “or section 24A, 24B or 24C”;

(d) in paragraph (3)(f) after “principles” insert “or section 24A, 24B or 24C.””

This new clause seeks to create a general obligation on data controllers to notify the Information Commissioner and data subjects in the event of a breach of personal data security. The proposed obligation is similar to that imposed on electronic communication service providers by the Privacy and Electronic Communications (EC Directive) Regulations 2003.—(Louise Haigh.)

Brought up, and read the First time.

[Louise Haigh]

I beg to move, That the clause be read a Second time.

New clause 19 would provide a general obligation on companies to report personal data breaches. This crucial amendment gets to the heart of the regulatory system around cyber-security. Cyber-security is one of the greatest challenges we face as a country. Despite the Government’s multi-million pound strategy and their further welcome announcement today, we do not believe they have faced up to the challenge yet. Some 90% of large UK firms were attacked in 2014. That is an astonishing figure, and yet only 28% of those businesses reported their cyber-attack to the police. As the Minister knows, national crime statistics rose for the first time in 20 years last year, because scams and cybercrime are now included.

Throughout discussion of the Bill, we have made it clear that we feel it does nothing to address the real challenges facing the digital economy. The Bill should have equipped the sector for the digital future—a future as replete with challenges as with opportunities. None of those challenges could be greater than cyber-security. That security says to consumers and individuals that, in this coming century, when data will be the lifeblood and the exchange of personal data the currency, nothing is more critical to ensure that that runs smoothly than their trust.

This multi-billion-pound sector, which now amounts to 11% of our GDP, is utterly reliant on the mutual trust fostered between consumers and producers, which is why the new clause is so critical. It would establish for the first time a duty on all companies to report any breach of cyber-security. The legislation as it stands is simply inadequate. The Data Protection Acts deal extensively with the protection of personal data, but there is no legal obligation on companies to report data breaches. The privacy and electronic communications regulations include an obligation to report data breaches, but that only applies to telecommunications companies and internet service providers and, at that stage, only requires companies to consider information customers.

Clearly, however, it is not only communications providers that hold sensitive data about people that carry the potential to be commodified. Insurance companies have had their data stolen, to be sold to claims management companies; banks are hacked, as J.P. Morgan was in 2014; and TK Maxx suffered the largest retail hack to date with the loss of credit and debit card information. Yet none of those examples had a duty to report to their customers to ensure that further harm was not done with their information.

The net impact of the lack in existing legislation is that the vast majority of attacks go unreported, and people are left in the dark when their personal data have been hacked, leaked, stolen or sold. If we are to talk meaningfully about data ownership, we cannot allow that to continue. We welcome yesterday’s announcement that the Government will be implementing the general data protection regulation. As the Minister knows, the GDPR provides for a general obligation on all companies to report breaches to regulators and customers. Will he make it clear how he expects to fulfil that obligation and whether he is willing to accept the new clause?

Fundamentally, we are keen that the UK’s digital economy is not seen as a soft touch on cybercrime. That is why the new clause would impose a general obligation on data controllers to notify the Information Commissioner and data subjects in the event of breaches of personal data security. We believe that that would be a major step forward, and we look forward to the Minister’s comments.

--- Later in debate ---

[Louise Haigh]

It is completely outrageous to suggest that we are the ones arguing for delay.

[Kevin Brennan]

It’s your tone that is the problem, Minister.

Digital Economy Bill (Tenth sitting)

Debate between Kevin Brennan and Louise Haigh

Committee Debate: 10th sitting: House of Commons
Thursday 27th October 2016 Public Bill Committees

[Louise Haigh]

I rise to address new clause 38, which is in my name and that of my hon. Friend the Member for Cardiff West. I am sorry to say that this is where any cross-party consensus on the Bill ends. We absolutely do not support clause 76 or any of the amendments to it. Not only the Opposition, but the more than 4 million over-75s in this country who currently make use of this benefit oppose the clause. The benefit was promised to them in last year’s Conservative manifesto, a manifesto that, frankly, many of them will have voted for in good faith. Now, just 16 months into the Parliament, the Government are abandoning that pledge on the pretence that it should now be for the BBC to decide. Well, it will not only be Opposition Members, but millions of over-75s, and indeed future over-75s, who see right through that underhand tactic.

Just to concentrate the Committee’s mind, I did a bit of research at 11 o’clock last night, when I was still in my office writing my speeches for today. Given that more than 89% of over 75-year-olds make use of the free TV licence introduced by the previous Labour Government, in the Minister’s West Suffolk constituency there will be 8,863 over-75s who potentially stand to lose out because of the Government’s tactics—that is one of the highest numbers in the entire country. I do not have good news for the Parliamentary Secretary, Cabinet Office either: 7,121 over-75s in his constituency will be very unhappy with this measure.

An awful lot of disgruntled over-75s will be coming the Ministers’ way in future surgeries. There will be quite a queue at their constituency offices. I would not rule out the pensioners having a copy of the Conservative manifesto in hand, because that manifesto contained a pretty unequivocal promise:

“We will maintain all the current pensioner benefits including Winter Fuel Payments, free bus passes, free prescriptions and TV licences for the next Parliament”.

In fact, the header above that list of pensioner benefits said:

“We will guarantee your financial security”.

Those benefits were all introduced by the previous Labour Government.

[Kevin Brennan (Cardiff West) (Lab)]

Does the manifesto mention anywhere that the Government might transfer their responsibility for any of those benefits to an unelected body?

[Louise Haigh]

No, that is exactly my point. Whether or not the BBC gains responsibility for this provision is moot. The BBC is an unaccountable organisation when it comes to setting welfare policy. This represents the start of a slippery slope. Where does it end once the Government start asking other bodies to make decisions on who gets benefits? This is yet another broken promise—one promise has already been broken in part 3—so we are not doing very well. I am sure the powerful older voter lobby will not take this lying down.

--- Later in debate ---

[Kevin Brennan]

It is interesting that my hon. Friend used the term “negotiations” and the Minister repeated it from a sedentary position. There is a difference between negotiations between equals and being negotiated with by someone holding a loaded gun to one’s head.

[Louise Haigh]

That is absolutely right. The Opposition made clear in the debate on the BBC charter our utter condemnation of the underhand, aggressive, bully-boy way in which the Government “negotiated”. It was not a negotiation. As a former trade union rep, I recognise a negotiation when I see one, and the way the Government handled the previous licence-fee settlement was nothing of the sort. That led us to the position we are currently in. The BBC should never have been given the responsibility for delivering on a Conservative party manifesto pledge. It should have felt able to reject even the suggestion that it take on the cost of free TV licences for the over-75s.

Digital Economy Bill (Sixth sitting)

Debate between Kevin Brennan and Louise Haigh

Committee Debate: 6th sitting: House of Commons
Thursday 20th October 2016 Public Bill Committees

[Louise Haigh]

This is a very curious clause, which renders much of the well-informed—as the Minister said—and useful discussion that we have had today about enforcement, targeting smaller providers and restricting access across the web, completely and utterly redundant. If the clause as I read it goes forward unamended, it will provide the regulator with the ability to target only the largest providers of online pornography, perhaps even limiting its ability to target only them.

As we have discussed at length, this is an incredibly difficult area to police, which I appreciate. It is obviously going to be far easier to tackle the 50 largest providers, not least because I assume many of them are already providing some level of age verification and are probably more at the responsible end of online pornography content providers. I would remind the Committee of the Conservative party’s manifesto, which said:

“we will stop children’s exposure to harmful sexualised content online, by requiring age verification for access to all sites containing pornographic material”.

That does not make any reference to commercial providers or whether the provider has a large or small turnover, is on WordPress, Tumblr, Twitter, Facebook or Snapchat. Today’s debate has very much suggested that the role of the regulator will be to focus on those sites that are operated on a commercial basis. Given the Minister’s reluctance to implement internet service provider blocking, I do not believe that the manifesto commitment will be achieved.

[Kevin Brennan]

My hon. Friend is making a very interesting point. The clause refers to

“a large number of persons”

and

“a large amount of turnover”.

“A large number of persons” might be 1,000; it might be 1 million. Has there been any indication from the Government of what they mean by that?

[Louise Haigh]

As far as I am aware, we have had no indication from the Government at all. It would be very interesting to hear the Minister’s comments on that and on why the clause exists at all.

The Minister has been saying at length that he does not want to be too prescriptive to the regulator, but he is putting into primary legislation that the BBFC will be able to target, first and foremost, the larger providers and those that are more easy to target. I would imagine that a regulator in any regulatory system would go after the bigger and less problematic providers before those that are more difficult to tackle—no reasonable person would expect anything different. I find this confusing: why should the provision be in primary legislation, given the Minister’s overtures about not being too prescriptive and giving sufficient flexibility?

Digital Economy Bill (Third sitting)

Debate between Kevin Brennan and Louise Haigh

Committee Debate: 3rd sitting: House of Commons
Thursday 13th October 2016 Public Bill Committees

[Louise Haigh]

Q We have heard your concerns about the draft codes of practice, which I also find very concerning. Of course, we do not know because we have not seen any draft codes of practice. Would you advise Members to vote on Government powers of that nature without seeing such draft codes of practice? Who else should be consulted on such codes before they are made law?

Elizabeth Denham: We have seen some of the draft codes of practice, and we have been making comments, but I think it would be preferable for Parliament to review all the codes of practice so that they can see and discuss the entire framework before the passage of the Bill. The codes are an important part of the framework.

[Kevin Brennan]

Q To follow up on that, do you believe that we ought to see the draft codes of practice prior to consideration of these parts of the Bill in Committee?

Elizabeth Denham: That is my view, yes.

[Louise Haigh]

Q In your first speech as Information Commissioner you made much of the need for businesses to establish trust in relation to data sharing, with which I obviously completely agree. Do you think this Bill could have done more to put safeguards around data sharing in the commercial space?

Elizabeth Denham: Again, I think that trust and transparency go hand in hand. Part 5 is about Government data sharing and sharing with Government providers, so the focus there needs to be on transparency and trust. All Governments are really struggling with this issue, especially in the face of new technologies. How can you make transparency easy and understandable? We have just issued a privacy notice code of practice, which we introduced last Friday. What would help this Bill is if there was a reference to following our privacy notice code of practice, which again is across the public and the private sector and would lend more trust among the public.

[Nigel Huddleston]

Q The UK is one of the most advanced digital economies in the world, yet we heard from witnesses on Tuesday that, in terms of Government data sharing, we are well behind the curve, well behind other countries—that is partly because they are probably more focused on the opportunities. Does this Bill, in your experience, bring us more in line with the best practice you are seeing in other countries?

Elizabeth Denham: I think the approach that the UK is taking in this Bill is a responsible approach. My recommendations are to up the safeguards and improve the transparency. Breaking down the data sharing by type, function and purpose of data is a good way forward. There are some draconian data-sharing regimes in other parts of the world, which are concerning to data protection commissioners. I generally think that the approach here is right, but there could still be some strengthening of the Bill. That would go a long way to assuring more public trust and therefore more buy-in and participation in the digital economy and digital services.

Enterprise Bill [Lords]

Debate between Kevin Brennan and Louise Haigh

Tuesday 8th March 2016 Commons Chamber

[Kevin Brennan]

I am happy to confirm that the Opposition will be supporting amendment 18, tabled by the Scottish National party, which we discussed in Committee.

This is the bit of the Enterprise Bill that has nothing to do with enterprise; it is largely about spin, to be perfectly honest. Let me make it clear, as I did in Committee, that Her Majesty’s official Opposition agree that excessive exit payments in the public sector should not be paid, and that any abuses in that regard should be ended. The problem with the Government’s approach is that they are attempting to govern by headline in a very complex area, and in so doing they are creating the sorts of anomalies and unfairnesses that I am sure we will hear about during this debate. Including a headline-grabbing figure—in this case £95,000—on the face of the Bill is, frankly, the worst kind of utterly vacuous government, and it is exactly the sort of rigid legislating that good civil servants advise against, and that bad Ministers promote.

The inclusion of that figure in the Bill is really about allowing the Secretary of State for Business, Innovation and Skills to have his tabloid headline about fat cats, which was one of the odious remarks he made on Second Reading. That was an insult to thousands of decent, hard-working people across this country, many of whom have never been paid anywhere near £30,000 a year, let alone the £3 million a year that the Secretary of State used to get when he worked for an investment bank. [Interruption.] That has a lot to do with it, because of the language he used.

If I was to accuse the Secretary of State of being a fat cat—I am not going to do that, Madam Deputy Speaker—the Minister would be huffing and puffing in her usual way, muttering “Outrageous” and “Disgraceful” from a sedentary position. She and the Secretary of State like to dish it out, but they do not like to take it when it comes back their way. She was quite content to sit there on Second Reading and cheer the Secretary of State on as he traduced public servants, including long-serving local librarians and even privatised nuclear decommissioning workers, and described them as fat cats. I wonder how they felt about the Secretary of State using that language. Actually, I know exactly how they felt, because they wrote to us in their droves to express their anger at his insulting rhetoric, and that evidence—there was a lot of it—was officially submitted to the Committee.

Amendment 15, tabled by the Opposition, seeks to protect those workers who earn less than £27,000 a year from the proposed exit payments cap—yes, those who earn less than £27,000 a year are the Secretary of State’s so-called fat cats.

[Louise Haigh (Sheffield, Heeley) (Lab)]

I was present on Second Reading when the Secretary of State described long-serving public servants on low and average pay as fat cats. At the end of that debate, the Minister said at the Dispatch Box that the exit payments cap would not apply to civil servants earning less than £27,000. I hope that she will forgive us if we do not take her word for it, and that she will therefore accept our amendment today to ensure that the promise is in law.

[Kevin Brennan]

There was a time when what Ministers said on the Floor of the House could be accepted, and I am prepared to accept that the Minister is sincere in what she has said. In fact, I am not sure that she said quite what my hon. Friend says she said. I think that she actually said that it could affect a small number of people on £25,000. However, I think that my hon. Friend is echoing what one of the Minister’s Treasury colleagues had said earlier. If I am not mistaken, the current Minister for Employment, the right hon. Member for Witham (Priti Patel), when referring to what would be in the Conservative party’s manifesto, said that the proposal would not affect anybody earning less than £27,000 a year. We have therefore taken her words, given as a promise from a Minister of the Crown, and put them into an amendment in order to hold the Government to their word. The fact that this Minister was not prepared to repeat that in those terms when she spoke on Second Reading can perhaps be explained by the Government’s refusal to support our very reasonable amendment.

Education and Adoption Bill (Ninth sitting)

Debate between Kevin Brennan and Louise Haigh

Tuesday 14th July 2015 Public Bill Committees

[Kevin Brennan]

The hon. Gentleman makes a reasonable point and, as I said, we are probing the Government’s thinking about this. We must not lose sight of the fact that it is equally important—if not sometimes more important, as my hon. Friend the Member for Birmingham, Selly Oak said—that provision is excellent for pupils in pupil referral units, pupils with special educational needs or disabilities and so on. We should have the same, if not more, passion about schools for them, as we do for schools in general. However it is achieved, it needs to be achieved—I think that we can probably agree on that.

Section 59 of the 2006 Act explicitly included all the types of school in amendment 77 in its definition of “maintained school”, and that definition is carried forward into this Bill. The draft regulations can be applied only to mainstream primary or secondary schools, however. The data used are obviously not applicable to either a nursery school or a 16-to-19 school, because they are based on key stage 2 and key stage 4 outcomes. Equally, the criteria are entirely inappropriate for special schools, where the same nationally set rates of progress cannot be expected. It is important that the legislation is explicit and accurate and that draft regulations cover the circumstances of all schools that are to be covered. Either the Bill or the regulations need to be changed, and we would be grateful if the Minister would clarify this matter.

[Louise Haigh (Sheffield, Heeley) (Lab)]

May I add my thanks for your excellent chairmanship during these proceedings, Sir Alan. I rise in support of amendment 66 in the name of my hon. Friends. On Second Reading, the Secretary of State outlined the intention that,

“No child should have to put up with receiving an education that is anything less than good”,

before going on to say that,

“The measures in the Bill are designed to speed up the process by which underperforming schools are transformed”.—[Official Report, 22 June 2015; Vol. 597, c. 638.]

Clause 1 specifies, however, that only a maintained school can fall under the proposed coasting regulations and, as we know, there is no provision whatever about transforming failing academies and failing academy chains, as my hon. Friend the Member for Cardiff West has already made clear. Indeed, under one of the measures of coasting—below 60% of pupils achieving grade A* to C at GCSE—the figures from the DFE performance tables are revealing.

The number of academies and free schools not meeting the 60% benchmark has almost trebled in the past three years, whereas the number of maintained schools failing to meet it has halved. They now very nearly match each other, with the number of maintained schools missing the benchmark falling from 1,445 to 854 and academies rising from 214 to 558. I appreciate that this is just one benchmark of the new coasting definition, but it is telling that the Government have chosen to focus their new performance measures entirely on maintained schools when, under their own terms, there is a clear issue with academies, and failing academies in particular, especially given that there were proportionally more inadequate academies than maintained schools as of April 2015. Further, and finally, as my hon. Friend mentioned, Opposition Members have serious concerns that this Bill will, yet again, leave academies free of direct parliamentary scrutiny, to be dealt with via private contract law behind closed doors. We hope that this amendment will go at least some way to increasing the scrutiny of academies and will allow standards to be raised for all schools.

Education and Adoption Bill (Tenth sitting)

Debate between Kevin Brennan and Louise Haigh

Tuesday 14th July 2015 Public Bill Committees

[Louise Haigh (Sheffield, Heeley) (Lab)]

Has my hon. Friend noted that education legislation passed under the previous Labour Government applied parliamentary accountability to regulations of this importance? The affirmative resolution procedure applies, for example, to the designation of a rural primary school, or repeal of school travel scheme provisions, under clauses 15 and 80 of the Education and Inspections Act 2006. These are important matters, but surely no more important or controversial than these regulations, with the sweeping changes that they imply to our school system.

[Kevin Brennan]

I am not surprised that my hon. Friend, with her usual copious research and command of detail, has spotted that. I am a big fan of the affirmative resolution procedure. I am not going to say that in every case the previous Government applied it as vigorously as they should have—I have made that point before—but I am a big fan of the affirmative resolution procedure because it is important that Parliament should scrutinise the Executive closely. It is something that you have done assiduously yourself, Mr Chope, on many a Friday and on other days of the week. It is important that we have the opportunity to debate these matters and have an enjoyable discussion, as we are having now, on the detail of Government policy. On that basis, I look forward to hearing the Minister’s response.

Education and Adoption Bill (Eighth sitting)

Debate between Kevin Brennan and Louise Haigh

Thursday 9th July 2015 Public Bill Committees

[Kevin Brennan]

We are now motoring on to clause 9. As you said, Mr Chope, we are considering amendments 50, 51 and 52 along with new clause 3, which has been tabled by my hon. Friend the Member for Sheffield, Heeley.

Amendment 50 notes that clause 9 provides for consultation about who should sponsor an academy in certain cases, and it widens the scope of the proposed new section 5A to include all academy sponsors. Amendments 51 and 52 provide for consultation when there is a change of sponsor.

The amendments would require the whole local community to be consulted about the identity of sponsors. It is important to note that the identity is a matter of concern not just to faith groups, which the Minister has acknowledged elsewhere in the Bill, but to others. They would require consultation when there is a proposal to change a sponsor, which has happened when chains collapse, such as the Prospects Academies Trust in May 2014, or when schools are taken away from them due to poor performance, and we heard examples of that from the Minister earlier. An academy chain in charge of running six state schools—the Prospects Academies Trust, which we talked about earlier—was forced to close. It was the first example of that happening, which shows that it is extremely important that there is consultation in such circumstances. Communities should not be left in the dark and treated with contempt by the Government when it happens. That is no way to run an education system. I hope that the Minister agrees that under those circumstances, consultation would be the right route to take.

[Louise Haigh]

New clause 3 goes a bit further than the amendments tabled by my hon. Friend. It amends the Academies Act to require that a certain number of people are consulted over an academy order in respect of any maintained school, including the chief inspector of education, children’s services and skills; registered pupils of that school; and any other persons that the Secretary of State thinks appropriate. The Government are not fond of consultation—that was made very clear by the 2011 legislation—but the official Opposition are big fans of democracy and accountability. We do not believe that they and school improvement are mutually exclusive.

The amendments are important because, as both sides of the Committee accept, there are good and bad academies. There are “outstanding”, “failing” and now “coasting” academies, and those terms apply to maintained schools as well. If pupils and parents do not have a say in whether their school becomes an academy, it is right that they should have a say in who runs it. If an academy chain such as the Harris Federation was going to run the school, that would be a very different story from its being run by a chain such as E-ACT, which has had so many schools removed from it.

It is important to include the chief inspector on the list of consultees, to ensure that as much information as possible is available, particularly given Ofsted’s press release last week. I know it has been referenced several times, but it is important to the Committee. It included information about the inspection of the Collaborative Academies Trust, which is sponsored by EdisonLearning. Nine academies are in the trust: three in Northamptonshire, five in Somerset and one in Essex. Ofsted found:

“Too many academies have not improved since joining the trust”

and that at the time of the inspection,

“there were not yet any good or outstanding academies in the trust.”

The amendment is important because if a school is to become an academy, parents, pupils and all other relevant stakeholders should have a choice in whether the academy is run by a trust such as EdisonLearning or perhaps a local federation, an outstanding local school that can sponsor schools or, possibly, a co-operative trust. If I were a parent—I assure the Committee that that is a thoroughly hypothetical situation—I would want a choice over which sponsor was going to run the school. I would want to know its background, as well as the governance arrangements, and to be given as much information as possible. I am sure that parents and children across the country feel the same. I hope the Minister will seriously consider the amendment and the new clause in his response.

Education and Adoption Bill (Seventh sitting)

Debate between Kevin Brennan and Louise Haigh

Thursday 9th July 2015 Public Bill Committees

[Kevin Brennan]

On the one in, one out rule, one could say that there are often academy trusts that fall into that category. I am sure that the Minister has seen Ofsted’s report on the focused inspection of the Collaborative Academies Trust, dated 25 March 2015, which points out that there are real problems with the rapid expansion of the academies programme and that there are serious weaknesses from time to time in the work of academy trusts.

Of course it is possible that local authorities will need intervention. My point is that the Government’s philosophical approach, which is to centralise all power with the Secretary of State, not genuinely to devolve power to a local level, is at odds with their approach elsewhere, and it will ultimately lead to the sorts of problems we have seen in lots of areas where there is not that level of accountability.

One has to call into question, as we have done—this has not been answered adequately—the capacity of regional schools commissioners to take on all these additional responsibilities. When we debate clause 1, we will discuss the fact that the huge expansion in the number of schools that will be eligible for intervention by regional schools commissioners will emphasise that capacity problem.

[Louise Haigh (Sheffield, Heeley) (Lab)]

I am conscious of the Minister’s previous intervention. Does my hon. Friend agree that the powers are not reserve powers? It was made clear during our debate on Tuesday that the interventions of regional schools commissioners or the Secretary of State would trump local authority warning notices. This is not about intervening when local authorities fail to do so, but about centralising all power in the Secretary of State’s hands, as my hon. Friend is making clear.

[Kevin Brennan]

My hon. Friend makes a good point because there is no need to justify why they are doing it. There is no need to provide the evidence that the action is necessary. The Secretary of State or the regional schools commissioner, acting on behalf of the Secretary of State, can just decide to do it.

Education and Adoption Bill (Sixth sitting)

Debate between Kevin Brennan and Louise Haigh

Tuesday 7th July 2015 Public Bill Committees

[Kevin Brennan]

I welcome everyone back for the Committee’s afternoon sitting. We come now to the third and final group of amendments to clause 2. Amendment 19 is an attempt to answer the problem of clause 2’s removing the mechanism for a governing body appeal to Ofsted. We are seeking more clarity about the decision to remove a governing body’s right of appeal to Ofsted following a warning notice. As the Bill removes the power of a governing body to appeal against a warning notice, the amendment would insert, as an alternative way of getting some measure of appeal, direct accountability for all decisions to intervene by the Secretary of State. It would require those interventions to be made via the mechanism of a statutory instrument.

It is clear from this and other actions by the Government that the Government lack confidence in Ofsted. Perhaps the fact that Ofsted has recently had to sack so many of its contracted inspectors—the very same inspectors on whom the Government have relied for judgments about which schools to intervene in—has led Ministers to strip Ofsted of the role of hearing appeals against these notices. I do not know. Perhaps the Minister will clarify why he does not think that Ofsted is a fit body to hear those appeals from governing bodies. However, just because the Government have lost faith in Ofsted’s ability to hear an appeal of this kind, that does not mean that they should completely abandon basic principles of natural justice. If Ofsted is not trusted by the Minister for Schools and the Secretary of State in this respect, surely something else should be put in its place as a safeguard against the arbitrary use of ministerial power.

The Schools Minister and I may disagree from time to time about the reasonableness of the actions that he takes and that the Secretary of State takes. I accept that we will sometimes see things differently when we are looking at ministerial actions, but as the Minister himself pointed out earlier in today’s proceedings, we are legislating for all future possibilities, including the most unlikely of possibilities for who might be sitting in his seat or the Secretary of State’s seat in the future. I remind him that there was a time when he was on the Opposition side and I was on the Government side. A week is supposed to be a long time in politics, so yes, that is ancient history, and I accept that we are likely to be in the same position for a few years to come, but on a serious note, we are legislating for all future Ministers, so we should be vigilant about legislating for anything that allows the arbitrary use of power by Ministers.

Amendment 19 means that, when issuing a notice, the Secretary of State would have to do so by order, rather than by direction. There would therefore be an opportunity for Members to pray against the statutory instrument—to use the technical term that we use in this place, not always understandable to the public—or, in effect, to put a question mark against what the Minister is doing to trigger at least a debate on the use of the power, against which the right of appeal is being removed from governing bodies.

[Louise Haigh (Sheffield, Heeley) (Lab)]

Does my hon. Friend agree that the issue is about not only who is Secretary of State, but an additional layer of accountability? As we heard time and again in evidence last week, that confuses the system and adds yet more challenges to a demoralised and over-pressurised workforce. Does he agree that the amendment would allow Parliament to scrutinise the impact on the workforce and on the education system as a whole of any order by the Secretary of State?

[Kevin Brennan]

With her usual acuity, my hon. Friend is absolutely right. That is an additional argument. We will be hearing from her later about her amendment, and I look forward to that immensely.

Amendment 19 proposes a minimum, light touch, democratic and parliamentary safeguard against a clause that introduces ministerial fiat into the Bill. Members might not be aware of this, but even the closure of a motorway slip road has to be done by statutory instrument through this place, yet apparently the Secretary of State, under the Bill, will be able to intervene in a school without any parliamentary accountability being necessary.

Education and Adoption Bill (Fifth sitting)

Debate between Kevin Brennan and Louise Haigh

Tuesday 7th July 2015 Public Bill Committees

[Kevin Brennan]

Thank you for your guidance, Sir Alan. You have just indicated the amendments we are to consider. Amendment 16 would clarify that a local authority may give a warning notice under section 60A (teachers’ pay and conditions warning notice), even if the Secretary of State has given one. Amendment 18 would ensure that a governing body could not have two different warning notices in quick succession. Amendment 17 would enable a local authority warning notice under section 60A to remain in force, even though the Secretary of State had given one.

Amendment 20 would restore section 69A of the Education and Inspections Act 2006, which allows the Secretary of State to require a local authority to issue a warning notice. Amendment 22 refers to section 62 of the School Standards and Framework Act 1998, which gives a local authority power to take immediate action against a maintained school when there is a serious risk to pupils at the school. The amendment is aimed at probing the likely use of section 62 powers in the light of clause 2.

The amendments are designed to bring a degree of sense and order to the warning notice process or, if that is an over-ambitious aim, at least to understand how the Government intend to do that. We would like clarity on that from Ministers. It is clearly unreasonable for a school to receive two different—or indeed two similar—warning notices in quick succession. As ever, in drawing up policies, Ministers seem to have great problems in seeing matters from the viewpoint of a school and the impact of Government policies on schools. That is especially the case when we are presumably talking of schools that are in some way already short of capacity. The possibility that the school might be asked to begin to deal with requirements under a warning notice and then have them replaced by something different is clearly unsatisfactory, if that is what is envisaged in the clause.

Amendment 16 probes whether the term “warning notice” in new subsection (4A) refers to both types of warning notices: the section 60 performance standards and safety warning notices and the 60A teacher pay and conditions warning notices. In other words, a local authority can issue a section 60A warning notice if the Secretary of State has issued a section 60 one, and so on. Amendment 17 also relates to that.

Amendment 18 further explores whether the legislation is in danger of making matters even more complex. It will be highly confusing for a school, if it is trying to make rapid progress, to work to a local authority section 60 warning notice only to find that work on that must come to an abrupt end when the Secretary of State imposes a section 60 notice and stops the local authority notice that the school was already working on. Where is the evidence that, when imposing a warning notice, a local authority asks for the wrong kind of action?

Presumably, when a local authority has imposed a warning notice on a school it has done so for a reason and has not done so lightly, imposing actions that it believes will help to turn that school around or will improve the situation that triggered the warning notice. Where is the evidence that a local authority notice is likely to include the wrong actions and that a regional schools commissioner—who will have to keep an eye on a much greater number of schools than any local authority and with very limited resources, as we heard in the oral evidence before the line-by-line scrutiny of the Bill commenced—will have greater local knowledge or capacity to understand what needs to be done in relation to those warning notices?

Why does the Minister think that a regional schools commissioner, with a small number of support staff, will have better capacity to pick the right kinds of action in a warning notice than a local authority, which has, potentially, greater capacity and deals with a smaller number of schools about which it, presumably, and historically, already has more intimate knowledge?

[Louise Haigh (Sheffield, Heeley) (Lab)]

I believe that we heard from Ministers last Tuesday that they would be providing extra resources to regional schools commissioners. Does my hon. Friend agree that it would be helpful if they confirmed exactly what resources they will provide, and does he further agree that it would also be helpful for them to confirm how regional schools commissioners will work with local authorities? At present, as I understand it, they only work with headteachers of academy schools.

[Kevin Brennan]

Yes, I think that would be extremely helpful. I remember the days when Ministers were concerned about the growth of quangos, as they used to be called—bodies appointed by Ministers but without any direct accountability to the public. It seems to me that we need to understand whether the Minister is growing a whole new series of quangos around the country in creating—by stealth, in effect, and without use of legislation—the office of regional schools commissioners. Currently, as we found out from the oral evidence sessions, the commissioners have relatively small operations, namely half a dozen or so staff, but are now being given all these extra responsibilities. Who knows what other responsibilities are to be placed upon them in the future? It is inevitable that questions about accountability will grow as these institutions become more and more significant in the educational landscape and, potentially, as more and more Government resources are given to them to carry out the additional duties that the Government place upon them in this legislation and elsewhere.

The second point that my hon. Friend the Member for Sheffield, Heeley made in relation to headteacher boards—which is what I think she was referring to—was a question that I raised with Lord Nash during the oral evidence session. I asked him whether it was time for headteachers of maintained schools to be treated as equal to headteachers of academy schools by allowing their participation in headteacher panels, not least because of the expansion of the regional schools commissioners’ duties to have more and more responsibility for maintained schools.

How can the regional schools commissioners be properly advised by a headteacher panel that does not contain any maintained school headteachers, especially if they are dispassionately, properly and neutrally to deal with the problems faced by maintained schools? We have not yet even got to the question of key performance indicators of the regional schools commissioners in relation to targets for academisation. All sorts of problems are contained in my hon. Friend’s intervention, which I am sure the Minister will refer to.