Education Bill

Lord Peston Excerpts

Wednesday 14th September 2011 Grand Committee

[Lord Storey]

My Lords, I have a great deal of sympathy with this amendment. My experience as a head teacher for 26 years is that one of the reasons that standards in schools have risen is because of the quality of teachers, the quality of entrants going to university or college and the quality of the qualifications they received. We have to think very carefully about where we are going on this. Are we going to have unqualified people who, for example, have no child protection training, no safeguarding training and no special education training? If we do, we do a disservice to our education sector as a whole.

That is not to say that there are not people in schools who are not fully qualified as teachers. For example, currently teaching assistants with NVQ level 3 can teach, provided that the work is prepared by a teacher. Teaching assistants with a higher level qualification can teach and prepare the work, but there is a teacher at hand. The notion that in free schools you have people with no qualifications teaching children is a retrograde step. It is almost Dickensian. It goes back to the pupil teacher. I hope that the Government will look at this very carefully. I am not opposed to the notion of free schools. In fact, the first free school can be traced back to the 1960s in my home town of Liverpool, but it was opened with qualified teachers.

The other day, I was listening to a programme on Radio 5 about a school where all the people providing the teaching—I cannot use the term “teachers” because they are not qualified—are going to have a military background. I have nothing against that, provided they have qualifications to go with that role. I hope that we will look at this closely and return with some proposals that we can all accept.

[Lord Peston]

My Lords, I regard teaching is a skilled profession and one that demands all sorts of skills, but I am aware that, among the general public, many people believe that anyone can teach and that there is nothing to it at all. They are just plain wrong. Teaching is not only a skilled profession, but it is an incredibly difficult one. I shall enlarge on that in a moment.

Perhaps I may go into my own anecdotage, as I always do when addressing your Lordships. Many years ago, when I was a lecturer at the LSE, the professors decided that they ought to get some advice from the Institute of Education about teaching. I was told by a most senior professor, the great Lord Robbins, that I had been selected—it turned out that I was almost the only one who had agreed—as one of those to be examined by two people from the Institute of Education. None of the professors volunteered to be examined by them. They heard me lecture a couple of times and then they came to see me. They said, “Do you think you are a good teacher?”. I said, “I am a very good teacher, I can assure you of that”. Then they said, “Do you think it would be advantageous if the students could actually hear what you said?”. I said, “What?”. They said, “Well, you constantly march round, turn your back to them and for most of the time they cannot hear what you say, but they are too well mannered to tell you”. Then they said, “Do you think it would be useful if you wrote legibly on the blackboard so that they can see what you write?”. Again, I was taken aback.

They went through it all and I realised that I had been totally deluded in my view. In those days, you just got a first-class honours degree at the LSE and you were appointed as a junior lecturer, end of story, and you were told to go and teach. In principle, I was addressing willing learners. One thing we have to bear in mind is that the lives of many teachers are difficult because quite a large number of the people whom they are teaching do not want to learn and one of their skills has to be to persuade people that it is worth learning and that education is a useful thing. We have discussed before in Grand Committee how you persuade students when their own parents, particularly parents with girls, tell them that education is a complete waste of time.

Therefore, it seems to me that we must not go down the line of pretending that anyone can teach. I do not say that everyone who has a teaching certificate will turn out to be a good teacher, but that seems to be at least a sine qua non to start with. My noble friend mentioned whether we are to go down the next stage which is having unqualified doctors. I remember, some time ago, talking to a computer expert, saying, “Do we really need expensive doctors because as far as I can see you could write a program which would involve structured questions and answers and you could give it to me and I would follow the structured questions and answers and I would diagnose a condition and the program would also tell me what to prescribe?”. I spoke to one or two medics and they said, “Don’t you know that doctors do other things besides simply looking at a few symptoms and then prescribe?”. They were entirely right; their contribution is a human contribution and that applies to social workers and all sorts of areas where people need to be skilled and qualified. We do not need Philistines outside telling us that anyone can do this sort of thing.

In following what has been said already, it overwhelmingly seems to me that we must not go down the path of diluting the educational training of those are to be our education trainers. None the less, having said that, we must place all this—the point has already been made—within the context in which people teach. As I have already said, there is no big deal when teaching willing learners. Equally, teaching becomes a good deal easier when classes are small. I do not see this Government, with their ridiculous economic policies, suddenly increasing the amount of expenditure on education so that all schools could have the same class sizes as private, independent schools. Our teachers have to cope in difficult circumstances. Above all, the job of your Lordships is to be supportive and not to undermine them in any way whatever.

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[Lord Sutherland of Houndwood]

My Lords, unusually, I disagree with my noble friend Lady Murphy, and I do so for three reasons. First, we are talking about consultation, not a power of veto. Secondly, it seems to me only good manners to talk to the sponsoring body, and good manners are not yet wholly absent from public life. Thirdly, and perhaps more importantly, I have no doubt that consulting the body in question would enable a smoother transition to the new status because one wants the co-operation of those who have helped to appoint the head teacher and of the original sponsors in order to make the school successful in the future.

[Lord Peston]

My Lords, I have been reading a lot recently about ambiguity in legislation and the problem of its interpretation. I find this section of the Bill potentially extremely ambiguous. Indeed, whoever drafted this section was perfectly well aware of that because the sentence which we are asked to omit includes the words,

“the appropriate religious body”.

If you then read on further to subsection (5), there is no doubt that, in the case of the Church of England and the Roman Catholic Church, the appropriate religious body is well defined—it can be done. It must suddenly have dawned on whoever drafted this provision that in the case of almost all the other religious schools, there is no appropriate religious body. If we take a Jewish school, a number of multifarious bodies might claim to be the significant body for Jews—certainly, it would not be the Chief Rabbi who has only a bit of the orthodox Jewish community as there are lots of other bits. I would not be at all surprised in the case of Muslims or Islam, whichever way you look at it, that, again, there would be a great many bodies which would all claim to be the appropriate religious body.

Therefore, this bit of the legislation is just plain wrong. It needs to be taken away by the Minister and redrafted no matter what happens with the amendment in the name of the noble Baroness, Lady Murphy. I am clear that whoever drafted it knew this at the time that this was written. I do not think that the Minister can get away from this at all.

[Lord Elton]

My Lords—

[Lord Peston]

Perhaps I may just finish. The other ambiguity concerns the word “consult”. What does it mean? Certainly, when I was a professor, I used to consult the students but it did not mean that I took any notice of them. In this case, does consult mean, and is it clear in terms of the interpretation, listening to them and doing something about what they are worried about? That is always a problem. We have had this issue on many other bits of legislation in my career here. The best advice that we in this Committee could give the Minister is for him to go away and come back to us with better drafted legislation.

[Lord Elton]

As the noble Lord is on the question of definitions, I assume that consultation is the same in all statute. It occurs in so many clauses in every statute that everyone knows what it means. As to his second point, Section 88F(3)(e) of the 1998 Act contains the definition of the body which he says is not defined.

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[Lord Hill of Oareford]

I am sorry not to be able to be more helpful to the noble Baroness because I know that she is also extremely reasonable. She will no doubt keep pressing and we can return to this another time. But the Government’s position is that the legislative requirement on a converting governing body is set out in the Academies Act 2010. The Government take into account whether or not schools have demonstrated that they have complied with those requirements, which are set out clearly and were inserted as a result of debate on this Bill last summer.

[Lord Peston]

My Lords, is the noble Lord going to respond to his noble friend’s devastating intervention on new Clause 5(3)(b) to be inserted in the 2010 Act under Clause 55? Will he explain why she is not right that the one group which should not under any circumstances carry out the consultation is the people mentioned in that new clause?

[Lord Hill of Oareford]

I was coming to that point. I have not got very far with my response. On precisely that point, my noble friend Lady Brinton raised the issue of who should do the consulting when schools are considering converting to academy status. As we have just been discussing, the starting point of the Government is that it should be carried out by the school’s governing body. However, this approach might not always work with underperforming schools that are eligible for intervention. There may be rare occasions when the governing body of the underperforming school seeks to block the development of an academy solution by refusing to consult. Clause 55 resolves this issue, as my noble friend pointed out, by permitting the proposed sponsor to do the consulting.

My noble friend suggests that the local authority would be a better alternative than the proposed sponsor. Clause 55 relates to schools that are failing their pupils and we think need radical improvement. We know that the evidence shows that converting such schools into academies with excellent sponsors can bring about that improvement. Becoming an academy involves, by definition, moving out of local authority control, so it seemed to us it was not right for the local authority to lead the consultation. It is the sponsor who has been identified as able to transform the school, so in our view they are better placed to consult on its future direction. But that consultation has to be carried out in a proper way.

My noble friend also raised important points about the local authority role in decisions about new and additional academies, such as free schools. I hope that I can reassure my noble friend that what her amendment seeks to put into law is already happening in practice. As a result of views expressed during the passage of the Academies Act, the Government introduced a specific requirement on the Secretary of State to take account of the impact of free school proposals on other schools. In meeting this requirement, the department seeks the view of relevant local authorities. In addition, any group wishing to set up a free school has to consult locally on its proposals. The consultation report is an important part of its application to the department. In deciding whether to approve a free school proposal, the Secretary of State therefore takes account of the views of the local authority and other interested parties, including on the issue of the level of need for additional school places.

We know that in practice, many local authorities are already playing a more active role than this. Some are building the free schools programme into their strategic schools planning and have provided proposers with support in areas such as finding sites, getting planning permission and working out levels of demand. It is the case that we do not believe that free schools should be set up only where local authorities identify that they are needed. The key point is to try to make the system more responsive to parental demand by giving parents, teachers or community groups the opportunity to do so.

We accept that consultation is important. It should be conducted in an open way. It should be appropriate to local circumstances. The Academies Act and this Bill provide for such consultation and I would therefore urge the noble Baroness, Lady Hughes of Stretford, to withdraw her amendment.

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[Baroness Murphy]

I shall speak to Amendment 133 in the group. It has very similar effects to Amendment 134 tabled by the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Avebury. Clause 58 introduces a new power for the Secretary of State to override by order the rules that have been imported governing the employment of teachers at voluntary-controlled and foundation schools with a religious character, which allow discrimination on religious grounds in favour of reserved teachers. Of course, Clause 58 allows new and wider discrimination, so that the academy school may apply preference to the appointment, promotion or remuneration of all teachers at the school in accordance with the tenets of a religion or religious denomination. This has the potential for many thousands of teachers to be implicated in changes of rules.

I understand that the Minister for Schools, Nick Gibb, has said that, as with maintained schools, the Secretary of State would allow this change only where a strong proposal was made and a thorough consultation had been carried out. However, it seems extraordinary that any state-maintained school should be able to discriminate against teachers or staff on grounds of religion. There is no statutory guarantee that future Secretaries of State will not simply allow all schools to make this change under Clause 58. It seems strange to allow this new and potentially wide discrimination against teachers in an academy school that has transferred from a voluntary controlled school with a religious character. Amendments 133 and 134—the latter is perhaps a little weaker in terms of the consultation that it asks for—basically ask the Government to withdraw this. In the light of the discussion by the noble Lord, Lord Avebury, of the legal implications, I wonder why Clause 58 is in the Bill at all.

[Lord Peston]

Noble Lords will not be surprised to know that I take it for granted, somewhat cynically, that religious schools will be biased in favour of appointing and promoting people of the same religion. That is part of human nature and it is how people carry on. I do not need to remind noble Lords that I am not qualified in the law. However, I am absolutely horrified to hear what both my noble friend Lady Turner and the noble Lord, Lord Avebury, have said about the legal advice they have been given from lawyers, who are certainly well qualified to give such advice.

I have a couple of points for the Minister. First, do we have any data on what actually goes on in these religious schools? They are financed using public money but do we have data on the religious mix of their staff and of who gets promoted and who does not? Are there any facts at all that could guide us? Secondly, if the law is being broken, I am not clear who is breaking it. I would have guessed that it was the schools that were breaking the law but the noble Lord, Lord Avebury, seemed to suggest that it was the Government, so I am a bit lost on that. I wonder if the Minister could tell us something about that as well. I assume that for one lawyer who you could buy to give you one opinion, the Government could buy another one to give them a different one. That adds to my cynicism. Finally, I hope that the Minister is not going to go through a legal document sentence by sentence, otherwise we will be here past 10 pm.

[Lord Hill of Oareford]

My Lords, on that particular point let me reassure the noble Lord, Lord Peston, that I do not intend to do that and am not equipped to do it. Generally, there have been a number of important detailed and technical points made by the noble Baroness, Lady Turner of Camden, who moved the amendment, and by my noble friend Lord Avebury. The sensible thing on some of those technical matters is to follow them up in writing and to have the kind of meeting that my noble friend suggested. I would go through it in that way rather than trying to grind through technical and detailed points now, which I would not get right either. Generally, that is a sensible way forward but perhaps I might make a few general responses to some of the broad points that have been made, then I will follow them up as I have suggested.

The Government’s overall position, as noble Lords will know, is that we accept that faith schools should have freedoms to employ certain staff according to religious considerations. Those freedoms are there for a reason: to maintain their ethos and to provide the sort of education that parents want. The School Standards and Framework Act 1998, which was passed by the previous Government, reflects that position and we believe that it still strikes the right balance between the prohibition of religious discrimination and the need for faith schools to maintain their religious character.

As for the general point made by my noble friend Lord Avebury about the European framework directive concerned, as I said I will follow that up with him. We do not accept that Section 60 of the School Standards and Framework Act contravenes it. We have seen the opinion that my noble friend referred to and I am advised that we have not changed our view on that. However, as I said, we will reflect and I will meet him to discuss that with officials who will be better equipped than I to have a sensible conversation with him.

So far as academies generally are concerned, it is our policy that faith schools converting to academies will, upon conversion, retain the freedoms and responsibilities which come with those freedoms. That is true in terms of admissions, as we have discussed before, and in terms of staffing. Voluntary-aided schools have always had the ability to take faith into account in the employment of all of their teachers, so where a VA school converts we have preserved this position. Voluntary-controlled and foundation schools have, in comparison, historically only been allowed 20 per cent of staff as reserved teachers, employed to deliver RE in accordance with the tenets of the school’s faith. Where a school’s freedom to take religious considerations into account has historically been restricted in this way, we have also made a commitment that those restrictions will continue when a school converts. This position is currently protected in academies’ funding agreements but, as the noble Baroness, Lady Turner of Camden, said, we are using Clause 60 to ensure that these protections are also preserved in legislation. That was a commitment I made last year to the noble Baroness, Lady Massey, who is sadly not in her place, during the passage of the Academies Act, and I am glad to have the chance to give it legislative effect.

The noble Baroness and the right reverend Prelate discussed a specific point, and I hope this will clarify their exchange. I am told that the Education and Inspections Act 2006 amended the School Standards and Framework Act 1998 to allow, but not require, the head teacher to be a reserved teacher, so the head teacher may be a reserved teacher, but does not have to be. That was to meet the needs of small schools with few teachers.

Turning to the specifics of the clause, Amendments 133 and 134 relate to the Secretary of State’s power to make an order to disapply the requirement that academies that were previously voluntary-controlled or foundation schools must employ up to 20 per cent of their teachers who are selected on their ability and willingness to teach denominational RE. Once that requirement is disapplied, the academy will have the ability to select up to 100 per cent of its teachers based on faith criteria, as any other independent school can. This was the point that the noble Baroness, Lady Murphy, was concerned about. I would like to make it clear to her that the power to issue such an order would be used only in circumstances where such an academy had changed its governance arrangements from minority to majority faith representation. It would mirror a process that is already possible in the maintained sector whereby, for example, a VC school can change category to a VA school and has to go through a consultation.

I agree with the point that issuing an order should not be a decision that is taken lightly. Any order would be issued only if a clear proposal had been set out justifying a change in the academy’s governance and staffing arrangements, a consultation of affected parties had taken place and a considered decision had been made in the light of responses to that consultation. Such an order would contain transitional provisions to protect the employment of teachers employed prior to the order taking effect. I hope that provides some reassurance.

On Amendment 127, I am advised that the provisions of the Equality Act 2010 mean that no teacher in an academy without a religious ethos can lawfully suffer less favourable treatment because of their religion or belief, as is required by the framework directive, so we think that the replication of Section 59 of the School Standards and Framework Act 1998 for non-religious academies would be an unnecessary additional layer of legislation.

As I said, I will follow up some of these more technical, detailed points, and we can pursue them further. Overall, the Government’s position is that parents choosing to sent their children to a faith school do so with the understanding that—

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[The Lord Bishop of Hereford]

That puts the noble Lord very much within the faith spectrum and reflects the views, understanding and philosophy that lie behind what the noble Lord said. It might help understanding of the debate if that is put more clearly in the faith spectrum rather than in some pseudoneutral position because it is a position of faith about belief. Therefore it reflects the understanding of the debate.

There are 12 amendments in this group which makes it very difficult for me to know how best to address quite so many amendments in one go when they address such sensitive and critical issues. They all relate to Clause 60. I know that the National Society has been in discussion with the Minister’s department about a certain ambiguity there, and I shall make a general comment about that before going on to more particular points on some of the amendments.

We would be grateful if the Minister would confirm that while the bulk of Clause 60 refers to reserved teachers only, Clause 60(3)(9) refers to all teachers in a voluntary-controlled or foundation school with a designated religious character. As we have quite rightly been reminded, the purpose of reserved teachers is to provide denominational religious education when parents request it, as is their right. They may also teach the agreed syllabus for religious education, but that is not the reason for their appointment as reserved teachers. No other teachers may be required to teach religious education, whether the agreed syllabus or denominational. However, any teacher may agree to do so if requested, and any teacher may be specifically appointed to teach agreed syllabus religious education in accordance with a contract duly advertised and accepted. I would appreciate it if the Minister could clarify that understanding because the National Society is of the view that the clause has a certain ambiguity that we do not want to cause difficulties elsewhere.

To come more specifically to the amendments, part of my difficulty in listening to the debate is that it seems that noble Lords are in danger of omitting a clear starting point: namely, that faith schools are held on trusts, which require the relevant religious character to be sustained. Governance, employment, admissions, denominational worship and denominational religious education are the mechanisms by which the trustees, via the governing body and the religious authority, are able to ensure that the terms of their trust are being carried out. That is fundamental to the whole nature of this debate and therefore to the legislation itself. The Charity Commission would obviously have a great deal to say if the trustees were not carrying out their proper duties under law.

As has been observed in the other debates on these issues over the past nine days, the ethos and standards are all closely connected within the schools. A strong Christian ethos and high standards overwhelmingly go hand in hand. The noble Lord was asking about measures. There are plenty of them and plenty of objective evidence about precisely those kinds of areas.

[Lord Peston]

Is the right reverend Prelate saying that we know that there is no discrimination in appointments or promotion in these schools? Is there any evidence of that at all?

[The Lord Bishop of Hereford]

At the moment, I am making the point rather about the inspections and the transparency that there is about them, as there is for any other schools. The same standards are required about the appointments processes in church schools as indeed in any other schools.

[Lord Peston]

The right reverend Prelate does not seem to understand my question. I was simply asking: do we know the facts? My view is that we do not. For example, I am not sure how many religious schools there are in the right reverend Prelate’s diocese, but does he know the religious composition of all the teachers in all those schools—and if so, can that be made public?

[Baroness Garden of Frognal]

It might help the Committee if this debate were continued on a different occasion, because we are straying from the amendments which are on the Table. The Committee stage is designed to focus very much on the specific amendments that are here, rather than the more general debate such as we have on Second Reading.