Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

I beg to move amendment No. 6, in clause 3, page 2, line 22, after ‘time’, insert

‘, such time not to exceed two months,’.

Christopher Chope (Christchurch, Conservative)

With this it will be convenient to discuss the following amendments: No. 7, in clause 3, page 2, line 28, at end insert—

‘(1A)The consideration referred to in subsection (1)(a) shall include consideration by the local authority cabinet member responsible for education, such consideration to be evidenced by a minute signed by such person certifying that he has personally considered the representation and is responsible for the response taken by the authority.’.

No. 11, in clause 3, page 2, line 36, at end insert

‘within the last five years.’.

No. 8, in clause 3, page 2, line 36, at end insert—

‘(3A)Where a local authority receives a representation that appears to it to be frivolous and vexatious in accordance with subsection (3)(a), the authority shall, within a reasonable time, provide the parent with a statement setting out the reasons for being of that opinion.’.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

I now realise that amendment No. 6 is a pale imitation of the one I should have tabled. It seeks to define the time within which the local authority has to respond to representations from parents. Some local authorities might simply sit on such representations for months on end and not bother to address parents’ concerns.

Clause 3 is excellent and in many ways ought not to be necessary. In theory, it should not be necessary to prescribe that an elected body has the duty to respond to representations, but the reality is that some local authorities have become divorced from society and the concerns of parents, and that they have become nothing more than state-run bureaucracies.

This clause is one of many in the Bill that one could describe as prescriptive and centralising. The hon. Member for Brent, East (Sarah Teather) has said that the thrust of her party’s policies is against that, but the Bill is full of many similar clauses that do precisely that. This clause forces local authorities to respond within a reasonable time, and this amendment defines that reasonable time as two months.

However, having read the illustrative guidance the Minister sent to all Committee members, I have learned that I and my hon. Friends were wet when we proposed that period of two months. Paragraph 23 states:

“As a minimum we would expect local authorities to respond to any parental representations within four weeks”—

in other words, in half the time we propose in our amendment. I simply ask the Minister to agree to add to the clause a reference to that four-week period. If she were to do that, that would certainly receive our support on Report. Can she give a commitment now to introduce such an amendment? This shows how useful and valuable it is for the Government to issue such guidance alongside Bills.

There are other useful statements in that illustrative guidance, and some of them are so useful that it would be helpful if they were added to the Bill. For instance, there is the issue of what constitutes a parental representation. Is that a letter, or a generalised complaint, or does it have to be a formal representation in some specified form? The guidance points out:

“Research on parental preferences carried out in 2001 showed that almost 3 in 10 parents ... did not apply to their nearest state school.”

It also points out that

“the local authority should exercise its judgement in considering whether the approach is a representation from parents requiring a response under the new duty.”

David Chaytor (Bury North, Labour)

On the point about three in 10 parents not applying to their nearest school, presumably part of the reason for that is that their nearest school has selective admissions criteria of one kind or another that exclude their children. Does the hon. Gentleman   agree that there is a powerful case to enshrine in law the right of every parent to have their child attend their nearest school?

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

No. This research says that they did not apply to their nearest school. [Interruption.] No, it does not imply that they applied and were turned down because of the criteria of the school, or because they had been interviewed and found not to be of sufficient calibre to go to the school. These parents decided, on the basis of what they learned and experienced of the school—for example, its results and the behaviour of its pupils as they arrived and left, and what they heard from parents of children who are already at the school, which is the best form of information about schools—that they did not wish even to apply to that school because they were not happy with it.

Christopher Chope (Christchurch, Conservative)

Order. I am concerned that we are getting into a clause stand part debate. This is a narrow group of amendments. Perhaps the hon. Gentleman will return to the matters that they address.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

I am happy to do that. I will turn from the point of the hon. Member for Bury, North, but I believe that this is about dissatisfaction with the schools.

The guidance states:

“Given the wide range of circumstances applying in individual local authorities, we do not believe it is appropriate to specify a minimum number of parents whose representation would ‘trigger’ the new duty to respond. As a general rule, we would expect parental representations and local authority responses to be monitored by the authority at the highest official and political levels.”

That brings me on to amendment No. 7, which specifies that the representations should be considered

“by the local authority cabinet member responsible for education”,

and that he or she should sign a document stating that they had “personally considered the representation” and that they had agreed with

“the response taken by the authority.”

John Hayes (Shadow Minister (Vocational Education), Education; South Holland & The Deepings, Conservative)

This seems to be absolutely vital because it engages politicians in a process that might otherwise be the preserve of officials. From your long experience in local government, Mr. Chope, you will know—as will other Committee members—that too often officials take decisions without the full understanding of politicians. This is an excellent clause in that respect, and I hope that my hon. Friend will make that case rather more fully.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

I am grateful to my hon. Friend. Of course, many such decisions have been deliberately delegated by the full council to executive officials of councils; the amendment would prevent that from happening. It would mean that the decision must be considered personally by the cabinet member responsible for education. Such an approach ensures that representations are taken seriously by a senior elected official, not just dismissed out of hand by an official lower down the chain. The idea of having such documents signed comes from the United States. There are some decisions about which the US   President has to be briefed personally for a specified length of time, or at least that is what “The West Wing” says happens occasionally. [Interruption.] Wherever the idea comes from, I think that it is a good one. I am delighted that the guidance insists on consideration at the highest official level. It says:

“As a general rule, we would expect parental representations and local authority responses to be monitored by the authority at the highest official and political levels.”

I fully agree with that guidance, but it would be better to have it specified in the Bill.

Meg Hillier (Hackney South & Shoreditch, Labour)

The hon. Gentleman may not be aware of this, but in my local authority area of Hackney, the council is not also the education authority. We have the Learning Trust, which was set up as the education authority to deal with the day-to-day management of schools. There is a cabinet member for education, but her job, along with the elected mayor, is to set strategic direction of education in Hackney and to take parents’ representations about that issue. Is the hon. Gentleman suggesting that that divide between the political direction and the existing structure for running schools should be broken?

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

Those matters are for locally elected people to decide, but my view is that too often in local authorities, decisions are not taken at the highest level. When that happens there is no mechanism for parental concerns to be reflected in the education strategy of their local authority. It is terribly important that it should do that because otherwise there would be no democratic method by which parents can express their concerns and see action taken. It is that lack of connection between parental concerns and political action that leads to people getting disillusioned with politics and the democratic process. They say, “What is the point of voting? It does not have any effect on the decisions that are taken that affect my life.” We have to ensure that we make that connection again between what people are concerned about and what happens. That is why I mentioned the proportion of parents who do not apply to their nearest school. That relates to dissatisfaction with the quality of the school more than anything else, rather than the school excluding applications from certain categories of children or parents.

Amendments Nos. 11 and 8 deal with the issue of repetitious and frivolous representations. The Bill says that the local authority does not have to consider representations from parents that it considers frivolous or vexatious. The dictionary definition of frivolous refers to “trifling; not serious”, while the definition of vexatious refers to “causing annoyance or worry”. The legal case of the Attorney-General v. Barker in 2000 suggests that it may be reasonable to treat as vexatious a request that is designed to subject a public authority to inconvenience, harassment or expense. That could be an open door for a local authority to regard all representations by parents as frivolous because many parents understandably get very emotional about their children’s education. Such representations might easily be regarded by an unsympathetic official as vexatious.

John Hayes (Shadow Minister (Vocational Education), Education; South Holland & The Deepings, Conservative)

I am extremely grateful to my hon. Friend for giving way again. Like me, he knows that there are many good local councils and good local councillors, who give their time to the service of their communities. Is it not more the case that local authorities and parents who have a concern might find themselves in dispute? Without clarity in the Bill, we might see an unhappy tendency for cases to be challenged, for matters to go to court and for parents to become dissatisfied. Even when a local authority is doing its job dutifully, the lack of clarity in the Bill might lead to that sort of unhappy circumstance, which is not in anyone’s interest.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

My hon. Friend makes a good point very well, and I fully agree. Amendment No. 11 insists that if the local authority takes the view that a particular representation is vexatious or frivolous, it has to set out its reasons. There is precedent for that approach in part 64 of the criminal procedure rules:

“If the judge considers that the application is frivolous, he may refuse to state a case and shall in that case, if the applicant so requires, cause a certificate stating the reasons for the refusal to be given to him.”

The judge has to write, saying why he regards the action as frivolous. The same approach should be taken in respect of local authorities that refuse to consider a parent’s representations.

Paragraph 38 of the guidance gives a little bit of help:

“The local authority is not under an obligation to respond to representations which appear to it to be frivolous or vexatious, that is, which are clearly and evidently futile or misconceived or that are brought forward from a mischievous or obstructive motive. Nor is it obliged to respond to a representation which is the same or substantially the same as one received previously from the same person. The authority is expected, however, to exercise reasonable judgment in deciding whether to consider a parental representation.”

The guidance says that it is good practice to reply to such a representation, even when the local authority believes that it is unreasonable to determine it.

The amendment would also limit the exception for local authorities not being required to respond where the representation came from the same person, or was similar to a representation sent for a different purpose within the previous five years. I hope that that limitation will be too lax and the Minister will insist on two or three years, which would be welcome. In some ways, the guideline is better than my amendment, because it refers to “changes of circumstances” as sufficient reason to allow parental representations of a similar kind. Of course, that could be within a significantly shorter period than five years.

The guidance also sets out some helpful expectations about the help that parents can receive from the local authority:

“Where the level of parental demand for a new school appears to be considerable and where a group of parent promoters come forward then the local authority should offer help and support for parents in developing their proposals. The presumption is that the local authority should not respond to parents on the basis that, although a proposal for a new school appeared to have backing from parents, the actual proposal was under-developed, unworkable or in practical respects sub-standard. It is the responsibility of local authorities to work with parents to bring viable proposals through the”

decision-making process.

John Hayes (Shadow Minister (Vocational Education), Education; South Holland & The Deepings, Conservative)

That last point is vital. There will be many circumstances where an embryonic school will develop only if it has the sort of advice and support that my hon. Friend recommends. It is right that that provision is included in the Bill, but it needs to be given emphasis and teeth, because where parents and the community are seeking to develop a new school, they will desperately need such guidance if their ideas are to come to fruition.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

My hon. Friend is right. If parents came forward with a representation that was not fully costedand did not have tax schedules or technical specifications, it could be regarded as frivolous. However, that would be wrong. Parents should not have to provide that level of detail; they should express their concern as consumers and users of local facilities. It is right that the guidance sets that out, but it would be nice if we had something of that kind in the Bill. According to the guidance:

“The kinds of material help and support which local authorities should offer includes dedicated consultancy support to work through the process of arriving at a proposal and steering it through the decision-making process.”

That is welcome. The guidance also says:

“Many school proposals fall at the most basic hurdle—finding suitable buildings and site, and, where needed, securing sufficient capital funding.”

Local authorities should assist parents with those sorts of things, including locating a site—perhaps one that it already owns, or even an existing school that is underperforming. That information is helpful and needs to be highlighted as much as possible for parents. Perhaps local authorities do not publicise the fact that they are going to offer such assistance to parents who are concerned, but they should.

The guidance also sets out a useful complaints procedure:

“If parents believe that their local authority has not taken proper account of its duties under section 14A of the 2006 Act”—

I think that it means the 1996 Act—

“then they may complain to the Secretary of State. The Secretary of State might ask the Schools Commissioner to investigate whether the authority is in default of its duties and advise her on the use of the powers of intervention.”

That gives me the opportunity to ask the Minister to say something about the schools commissioner. The regulatory impact assessment mentions the commissioner at paragraph 1.17. It says:

“The Schools Commissioner will be charged with monitoring local authorities’ effectiveness in carrying out their modernised role, and in particular their new duties to promote choice and diversity and respond to parental demand.”

So far as I can see, there is no reference to the schools commissioner in the Bill, yet the post features strongly in the guidance and in the regulatory impact assessment. Will the Minister explain the statutory basis for the commissioner? Will he or she operate under existing law, or will he or she simply be an appointed civil servant in the Department for Education and Skills? Is the commissioner a job description within her Department rather than a new officer with duties to Parliament?

The amendments would significantly strengthen the Bill. They operate in the same direction as those provisions that the Government seek to deliver. The amendments would encourage if not force local authorities to take representations from parents seriously, to respond rapidly to them and not to get into the mindset of dismissing such representations as frivolous or vexatious, just because they happened to be inconvenient to local authorities in the conduct of their affairs.

We have too many underperforming schools. Some 23 per cent. of schools are underperforming. It is less than but similar to the percentage of parents who do not apply to their local school. That is no coincidence; the two are related. I hope that the Bill will deal with that. The amendments would strengthen rather than weaken the clause.

Sarah Teather (Shadow Secretary of State for Education and Skills, Education & Skills; Brent East, Liberal Democrat)

This is another set of highly centralising amendments from the Conservatives. I do not have a particular problem with the clause, but it is largely superfluous. I should have thought that any local authority worth its salt would do what is laid out in the clause anyway. There is nothing wrong with it, but I wonder whether we have begun from a perspective of not trusting local government whatever. If local government is not up to the job, it will get voted out. That is the point of democratic accountability. If an authority fails to respond to enough parental complaints, it will get a reputation for it.

Amendments Nos. 6 and 7 are very much in that vein. They attempt to teach grandmothers to suck eggs, and they are entirely superfluous. Amendment No. 8 is largely good practice and it seems to be perfectly acceptable. I do not have a problem with it, but its provisions are common sense. The Conservatives begin from the perspective of wanting to put everything from the guidance in the Bill. The point of guidance is that it is different from legislation. Things can be written into guidance which cannot be in the Bill. I should like to test the Conservatives’ presumption that people are more likely to obtain the information easily if it is in the Bill, than they are if it is written into guidance.

We were happy to support amendment No. 9, because it is important that the Government publish their guidance. Personally, I am not bothered whether they stick it in the Library, on the website or anywhere else, but it is important that it is published and that the expectation is that as soon as it is published, it is made available so that people know where to get hold of it. It is important to note that there is a role for guidance. We do not have to have everything enshrined in legislation. It would be highly over-regulatory.

From a legal perspective, I should be interested to hear from the Minister whether it is possible to act in accordance with guidance anyway. I suspect that from a legal perspective, it is not.

Christopher Chope (Christchurch, Conservative)

The hon. Lady is addressing amendment No. 9, which we shall consider in the next group.

Sarah Teather (Shadow Secretary of State for Education and Skills, Education & Skills; Brent East, Liberal Democrat)

Forgive me, Mr. Chope. You are entirely correct. I think that we have changed the order. I am most terribly sorry—I have muddled all my amendments and have them in the wrong order. We shall return to the helpful point that I was making. On a point of clarification, are we considering amendments nos. 6, 7, 11 and 8 and then stopping? [Hon. Members: “Yes.”] That makes life a lot easier.

Amendments Nos. 6 and 7 are superfluous, amendment No. 8 is good practice, and I have a problem with amendment No. 11, which removes power from parents. It is possible that parents will have more than one child at a school and may wish to complain about a systemic failure more than once. Saying that any complaints made more than once

“within the last five years”

should be treated as vexatious or frivolous is unacceptable and would prevent parents from campaigning to improve standards in their local areas. Therefore, we oppose amendment No. 11.

David Chaytor (Bury North, Labour)

Clause 3 is important and useful. It is drafted in the context of concern about the lack of responsiveness of some local authorities and the lack of capacity of some to raise standards in their schools. Therefore, the shift towards giving parents greater power and influence is useful. Some of the Conservatives’ amendments are attractive—the ideas to set specified time limits and to have certifying documents signed by local authority cabinet members have some merits.

The point is, however, that the shift of influence to parents would take place in the context of the strength of local democracy and the growing disengagement from it of some citizens. I am not sure that under the guise of devolving greater power to parents and enabling them to use other mechanisms to bypass the normal democratic process, we would necessarily strengthen trust and confidence. In reality, we would be encouraging a form of direct action. Although direct action has a place in democratic societies, it should not be allowed to override the normal process of the ballot box. I mention that because it is a risk involved with policy to strengthen the role of parents.

John Hayes (Shadow Minister (Vocational Education), Education; South Holland & The Deepings, Conservative)

The hon. Gentleman is right that we are determined to give parents more authority. The Government share that view. Indeed, when challenged on the contrast between decentralising power through the established mechanisms of local government and giving power directly to the people, the Prime Minister made the case that decentralisation of power can take many forms and that enlivening and empowering people is not necessarily achieved by conventional means. It can be achieved through other means.

David Chaytor (Bury North, Labour)

I agree completely. Decentralisation of power can take many forms, and I am in favour of diversification. However, giving a smaller number of people the power to achieve change through a mechanism other than the ballot box can undermine the majority of the population’s confidence in the use of the ballot box. I make that point in reference to amendment No. 10, which would—

Christopher Chope (Christchurch, Conservative)

Order. Amendment No. 10 has not been selected. It is not in order for the hon. Gentleman to refer to it. Perhaps he will wish to speak to the next group of amendments because, at the moment, his remarks do not relate in any way to amendments Nos. 6, 7, 11 and 8.

David Chaytor (Bury North, Labour)

Although I take your point on board, Mr. Chairman, I am trying desperately to find a way round it to allow me to make mine about amendment No. 10. Perhaps I should phrase it in more general terms in regard to amendments Nos. 6, 7, 11 and 8.

In the context of parents making representations and the time that local authorities have to respond, we must draw the distinction between a group of parents getting their own way and securing their personal and fairly limited objectives and the community’s being able to influence the shape of the provision of education in the neighbourhood or district as a whole.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

Does the hon. Gentleman accept, though, that the amendment is about trying to insist on best practice? When he is elected at a general election, he does not just disappear for four or five years and then come back and stand again. During those years, he and I and all members of the Committee spend a lot of time talking to all kinds of people in the constituency to ensure that we are aware of opinion on every subject on which we must debate and vote in this place. The intention of the amendment is simply that that is how local authorities should act, and that in matters of education policy they should, in particular, talk to local parents.

David Chaytor (Bury North, Labour)

I understand that, and I agree and sympathise; but the process of democracy would be undermined, not strengthened, by a proposition such as the one included in amendment No. 10—which has not been selected for debate with this group of amendments—that lobbying by a minimum number of parents for a particular change in the structure of the local system should give rise to an absolute right.

Christopher Chope (Christchurch, Conservative)

Order. Before the hon. Gentleman gives way to the hon. Member for Bognor Regis and Littlehampton it might help if I drew his attention to the fact that when we reach clause 7 we will come to an amendment very similar to amendment No. 10. It is on the selection list, and it may be better to rehearse this debate then, rather than now.

David Chaytor (Bury North, Labour)

I am grateful for your advice, Mr. Chope, but perhaps I may make a further, different point in response to the hon. Gentleman’s earlier remarks about the proportion of parents who do not choose that their children should attend the local school—the three out of 10 figure that he quoted earlier. Those parents’ reason for not sending their children to the local school may be their preference not to do so. My point is that it is not possible to conclude from the figures that that is the only reason.

There are other reasons why people cannot send their children to their local school. They may be specifically excluded by the admissions process. Alternatively, the parents may not choose those   schools, because they judge that their children would be excluded by it. I wanted to ask the hon. Gentleman whether he agrees that it would be of great benefit to most parents if an absolute right for children to attend the nearest school were enshrined in law.

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

It is worth reminding hon. Members that clause 3, as we have heard, requires local authorities to consider and respond to parental representations about how they carry out their duties under section 14 of the Education Act 1996, including the new duties to secure diversity and increase opportunities for parental choice in the provision of schools.

With those provisions, the clause forms the legislative basis for the new role of the local authority as parents’ and pupils’ champion and as the commissioner, rather than the provider, of a range of quality schools. We are determined that the duty should give parents the right to be heard by their local authority on the subject of schools provision in their area, and to receive a considered and proportionate response.

The effect of the clause, and associated statutory guidance, will be to give a greater voice to parents who are concerned about the choice of schools available to their children. It does not—to allude to the remarks of my hon. Friend the Member for Bury, North—cut across the democratically accountable role of local authorities. In fact, it is precisely our emphasis on the local authority as parents’ and pupils’ champion that strengthens the argument that it will be necessary for electors to consider whether their representative will be likely to be able to fulfil that role.

We have, of course, explicitly covered the other issue that was a part of my hon. Friend’s concerns, of whether we are effectively allowing a few articulate parents to bypass the system. The argument is a little like the one I made about choice this morning. It is already much easier for small groups of articulate parents to have their views represented in the system. We are trying, through this clause and the associated guidance, to ensure that local authorities actively look beyond such parents. I refer hon. Members to paragraph 16 of the draft guidance, which says that many local authorities are successfully reaching out to the majority of parents in their areas. Some are leading the way in innovatively engaging the full range of their local residents. In future all local authorities will need to think creatively about capturing the views of socially and economically disadvantaged parents, fathers, mothers and other carers, those who are not fluent in English and those who are otherwise hard to reach.

It is because we want to broaden the reach in that way that we are emphasising the clause and the guidance that goes with it.

James Clappison (Hertsmere, Conservative)

I welcome the tone of the Minister’s remarks. Does she agree that the measure would be of significant benefit if it were to   get more parents interested in the education of their children? That would benefit their own children and other people’s children as well.

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

The hon. Gentleman is absolutely right. If there has been a key theme throughout the development of the White Paper and the legislation, it has been the engagement of parents. We need a more sophisticated understanding of how that engagement would work but it would encompass everything from what we have said about the rights of parents to have better information about the progress of their own children and their ability to engage with the school through to how we can ensure that local authorities fulfil their new duty to be responsive—in general terms—to parents’ representations about the system. The hon. Gentleman’s analysis is correct.

Angela Smith (PPS (Yvette Cooper, Minister of State), Office of the Deputy Prime Minister; Sheffield, Hillsborough, Labour)

I was heartened to hear what my right hon. Friend said about needing to think more creatively and to engage more widely with parents, given my recent experience of the opening of a city academy. That had been vociferously opposed by parents who lived nowhere near the catchment area of the proposed school, but when it came to consulting with those inside the catchment area, there was 100 per cent. support for the proposal. Does that not underline the importance of the proposals in the Bill?

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

My hon. Friend makes a very important point. The strength and significance of parents’ views is not always matched by their ability to organise a campaign. We need to ensure that we involve a wider range of parents. There has been some discussion about a particular element of parental representation—for a new school, for example. The clause does not mean that parents have an automatic right to a new school—proposals for opening a new school are always considered on their merits—but it will make it easier for groups of parents to make their case for a new parent-promoted school.

The guidance makes it clear both how those issues should be responded to and how authorities should actively seek the views of parents on the school provision in their communities. Parents should not have to want a particular school or have a particular gripe in order to become engaged through this duty. Authorities might find new ways in which to engage parents in the context of drafting and updating the children and young people’s plan, or when planning capital investment through the building schools for the future programme, or when considering school organisation proposals.

Local authorities will also be required to support groups of parents in working up their proposals. That support could take the form of local authority officer time, money for consultancy advice—from, for example, the Specialist Schools and Academies Trust—or access to existing foundations to learn from their experience. It could, as hon. Members opposite have identified, include local authorities’ making available suitable sites or buildings, or giving parents access to information about land in the area. If they were to do that, they would go considerably beyond   what most local authorities do at the moment, but they would be right to do so. Decisions about new schools proposed by parents should be made on whether they would be good for local children. Such proposals should not be scuppered at the first hurdle by the parents’ lack of knowledge or ability to formulate their ideas and put them to the local authority.

Like my hon. Friend the Member for Bury, North, I am not unsympathetic to the general thrust of the amendments, not least because in many areas, as the hon. Member for Bognor Regis and Littlehampton has identified, we aim to go further than the amendments propose. The question is whether defining such matters in primary legislation is the right approach. Although she was not addressing the right amendment, the hon. Member for Brent, East made precisely the correct point: it is often more appropriate for such matters to be set out in statutory guidance, to which local authorities will need to have regard, than to be stated inflexibly in legislation. There may be alterations in local government organisation, for example, which would then mean changes would be necessary in primary legislation. The issues are important, but they are most suitably addressed in the statutory guidance that we will publish.

The hon. Member for Bognor Regis and Littlehampton has done much of my work for me. Speaking to amendment No. 6, which calls for a two-month limit on response time, he identified that paragraph 23 of our guidance says that local authorities should respond to any parental representation within four weeks setting out their initial response and, where appropriate, a timetabled plan of action.

Circumstances will of course vary from authority to authority and from case to case. There will be occasions when a representation can fully be answered within the four-week deadline and others when a complete response will require more work by the authority, for example an investigation to establish the profile of parental concern, a public meeting or other forms of local consultation or further discussions with parents to establish a way forward. That process could take longer than two months, for entirely legitimate and productive reasons, but we are clear that the local authority will indicate within a month when it will produce a final response. It will also have the responsibility to keep parents informed about action and progress and update them at key points agreed in advance.

Amendment No. 7 would require

“consideration by the local authority cabinet member responsible for education”.

I do not quibble with the idea behind the amendment, but I am concerned about whether it is appropriate for it to be in the Bill and whether we should completely remove local flexibility in determining how a consultation would happen. We will of course expect local authorities to involve their cabinet members for education in the vast majority of cases, but it should be as they deem appropriate. We understand the hon. Gentleman’s concerns on the matter, and as he has identified we specify in paragraph 19 of our guidance   that parental representations and authority responses should be monitored at the highest official and political levels.

I am also a fan of “The West Wing,” but I am not sure that analogies with presidential responsibilities get us very far in the circumstances. I hope that the profile that we have given to the issue in the statutory guidance reassures the hon. Gentleman that what he seeks to achieve in the amendments will be instead be achieved through that route.

Amendments Nos. 8 and 11 relate to “frivolous and vexatious” representations and the resubmission of representations. I accept the hon. Gentleman’s argument that it is key to ensure for the first time that local authorities are obliged to listen and respond to parental voices. The clause and the statutory guidance robustly set out how that response should be undertaken and delivered. However we all accept that there may be occasions when local authorities receive correspondence that is, as paragraph 38 of our guidance puts it,

“clearly and evidently futile or misconceived or that are bought forward from a mischievous or obstructive motive”

Some of us as MPs occasionally get correspondence that falls into that category, too, but just as I am sure that we are all assiduous in responding to all our constituency correspondence, our guidance makes it clear to local authorities that it is good practice to acknowledge receipt of all correspondence with a short explanatory reply. It is not necessary to place that sort of good practice in the Bill. The guidance makes it clear that that is what we expect.

On the point about resubmitting representations, the crucial point for parents and authorities is not whether a certain number of years have elapsed, but whether the situation has changed in a way which would warrant a reconsideration of the issue. The hon. Gentleman is right. In some circumstances, five years might be too long to wait, but it is not easy to determine a set period of time within which resubmission should be considered. There may be times when we would not wish local authorities to expend public money in investigating and answering a parental case simply because five years had passed since it landed on the authority’s doormat.

We have made it clear in the guidance that the authority must apply its judgment on resubmission and consider whether it is reasonable to respond, given changes in circumstance. There may be times when it is appropriate to respond much more quickly than within five years, perhaps because circumstances have changed or because it is clear that there is a strengthening of parental views on a particular issue. There are safeguards for parents in relation to the new responsibilities. Where parents believe that their local authority has not taken proper account of its duties under new section 14A of the Education Act 1996, they can complain to the Secretary of State. The schools commissioner could investigate whether the authority was in default of its duties and advise her on the use of   her powers of intervention. If it appeared that the authority was in default, the Secretary of State could direct the authority to reconsider its decision.

That is one element of the work of the schools commissioner. I am very aware of your careful chairmanship this afternoon, Mr. Chope, and I do not want to go into a lengthy explanation of the role of the schools commissioner, but perhaps in the spirit of consensus that we are aiming to achieve on the Committee, I can offer to write to all members of the Committee with some of the details about how we envisage the role and the operation of the school commissioner, as the hon. Member for Bognor Regis and Littlehampton requested. I hope that on the basis of those arguments, and the illustrative guidance that we have published, that he will feel sufficiently reassured to withdraw his amendment.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

It is clear from the Minister’s response that we are very much in tune with one another on the thrust of the Bill and the clause in particular. That is why we were so keen to support the Bill on Second Reading. The amendments were tabled before the publication of the illustrative guidance on Monday. It shows that we are driving in the same direction. She said that I had done some of her work for her when I introduced the amendments. I am happy to do more of the right hon. Lady’s work for her if she wishes. In fact, I would quite like to do all her work for her at some stage.

I was pleased that she agreed with the idea that I stole from “West Wing” about having a cabinet member sign in blood a statement that they had listened to and read the representations. I also agree that it should not be in the Bill. The amendments were tabled as probing amendments to try to flush out how seriously the local authorities will take their new duties. I was pleased with the Minister’s answer today and with the helpful guidance that she published. I was particularly pleased when I read that illustrative guidance. On that note, I beg to ask leave to withdraw the amendment.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

I beg to move amendment No. 12, in clause 3, page 2, line 38, leave out ‘have regard to’ and insert ‘act in accordance with’.

Christopher Chope (Christchurch, Conservative)

With this it will be convenient to discuss the following amendments: No. 9, in clause 3, page 2, line 39, at end insert

‘, such guidance to be placed in the Library of the House of Commons and notice given of the publication of the guidance by written Ministerial statement.’.

No. 22, in clause 6, page 6, line 13, at end insert

‘, such guidance to be placed in the Library of the House of Commons and notice given of the publication of the guidance by written Ministerial statement.’.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

Going through the illustrative guidance in relation to the previous group of amendments, it became clear how useful and effective that guidance will be in ensuring that the Bill’s provisions are   implemented properly at local authority level. We leant on the wording used in clause 37 when drafting amendment No. 12, which would replace “have regard to” with “act in accordance with”. If that is good enough wording for the admissions code and for Labour rebels—all but 52 of them—it should be good enough for those of us who want the key drivers behind the Bill to be implemented as effectively as possible.

One of the key elements of the Bill—probably the most important one—is the ability of parents to make representations for a new school or for a better quality of education provision. During deliberations on the last group of amendments, we discussed the concern expressed by the hon. Member for Brent, East which was that it is unnecessary and wrong to provide for such issues in the Bill, and that, somehow, guidance is enough.

In some ways, I disagree. Over the years, a new form of legislation has developed that is neither primary nor secondary—made through a statutory instrument—but is almost a tertiary form of legislation that applies to all areas, be it guidance to magistrates or to local authorities. It is almost quasi-law, to which local authorities must have more than regard—they have to explain themselves if they do not obey the guidance issued to them by the relevant Government Department—yet that guidance is never scrutinised by the House. It is never considered in Committee as would be a statutory instrument, or on the Floor of the House. On many occasions, in fact, guidance is slipped out and we are unaware of it, thereby making it difficult for the Opposition to scrutinise the guidance as part of our routine procedure. We are unable therefore to raise issues with Ministers when that guidance is wrong or is not serving the best interests of the public.

I have tabled an amendment, which I and my hon. Friends tabled also during deliberations on the Childcare Bill—we are making the same point in relation to this Bill. On the previous occasion, I detected that the Minister in question was sympathetic to our view, but she assured me that guidance would be placed in the House of Commons Library, although she was not sure whether we would be alerted by a written ministerial statement. That statement is important to make us and outside bodies aware that the guidance has been issued, so that people can read that guidance and decide whether it is in the country’s best interests.

That is all I wanted to say on the issue before us—it is a general concern regarding parliamentary scrutiny of an increasing amount of Government diktat to all kinds of bodies in this country. That should be scrutinised and examined—not necessarily voted upon, but at least looked at by hon. Members so that we are aware of what the Government are doing.

Sarah Teather (Shadow Secretary of State for Education and Skills, Education & Skills; Brent East, Liberal Democrat)

I shall see whether I can manage to speak to the right amendment this time. I suspect that I have said all that needs to be said on the matter before us, so I will be brief as always.

I support amendment Nos. 22 and 9. It is important that guidance be placed where people know they can get hold of it, and that we are alerted to its publication. There is a tendency for things to appear on Department websites without any notice: that is not good enough, so I support those two amendments. However, will the Minister say whether, from a legal perspective, it is possible to “act in accordance with” guidance? I am concerned about whether that is possible.

Nadine Dorries (Mid Bedfordshire, Conservative)

The current code of admissions contains the phrase “have regard to”, which is probably why the top 200 performing schools in the United Kingdom have no children taking free meals or children with special needs. All the schools have to do is to have regard to, and then they carry on as they wish. I fully support amendment No. 12. Stronger wording such as “act in accordance” should be in the Bill, because it will ensure that a local education authority adheres to what the Secretary of State says. There have been 23 written ministerial statements today, so perhaps we should have something stronger than that, such as oral ministerial statements.

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

I am sorry, Mr. Chope, I was just choking on my water at the idea that Ministers should stand at the Dispatch Box to announce every piece of guidance that was published by the Government.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

But, of course, each piece of ministerial guidance must be read by certain people, so it is not terribly inconvenient for the Minister to raise such issues on the Floor of the House. Each piece of the guidance that the right hon. Lady issues must be read by 173 people in each of the 173 local education authorities throughout the country. It is not too inconvenient for her to have to raise such matters in the House. However, if she does not wish to do so, I shall have to do it in her place.

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

I was about to be reasonably consensual about the hon. Gentleman’s response. Of course, the guidance is important, but there are a few other important issues to be dealt with, too. The vision of Ministers standing up each day in the House of Commons and reading out a series of announcements about what guidance they had issued that day is ridiculous. It would not be a good use of time in the House.

I shall now be more constructive in my response to the amendments. Amendment No. 12 aims to make local authorities act in accordance with guidance in respect of considering parental representations. During our discussion on the previous group of amendments, I outlined the importance of the clause. I do not disagree with the hon. Gentleman that it is a fundamental part of the Bill and that it is crucial that the change in practice for many local authorities that the clause and its guidance represent is considered. There is, however, a fundamental difference between what we are proposing under the guidance and the admissions code to which the hon. Gentleman referred. Each community and school is different. It is right that, within a framework set out by the Secretary   of State, local authorities should be able to determine their own arrangements to make sure that they work for their parents and their community. A duty to “have regard to” guidance means just that. It must be taken into account, but case law has found that it is possible to have regard to a provision, but not to follow it in a particular situation.

More importantly, the guidance to local authorities on responding to parents will necessarily cover a wide range of situations. For example, in some circumstances a new school may be the right response to a group of parents who want a specific provision in a particular area, whereas an expansion may be right for another group of parents who want more places at a good school. The guidance cannot be exhaustive, as it would be impossible to anticipate each type of representation that parents might make. It would be similarly impossible to prescribe in guidance what might constitute a reasonable response by a local authority in all eventualities.

Members of the Committee will appreciate that a duty to have regard to guidance is the normal formulation and is appropriate to most of the guidance that the Department issues. As the hon. Gentleman has identified, when something is a clear duty and is applicable universally, it goes into primary or secondary legislation. When we are recommending good practice, it goes into guidance and it is for local bodies to take it into account sensibly in their local situations.

Primary and secondary legislation is subject to parliamentary scrutiny before becoming law. The hon. Gentleman is right, guidance is not usually subject to parliamentary scrutiny so we believe that it is inappropriate to compel schools and local authorities to comply with it, as if it were a piece of legislation. Even if it were possible to make guidance more strongly statutory than it is, guidance by its very nature is not normally intended to be mandatory or binding in the same way as primary and secondary legislation.

To support his argument, the hon. Gentleman prayed in aid our approach to the school admissions code. The code is different from the parental representations guidance for the following reasons. First, the admissions code has always been subject to parliamentary scrutiny before coming into force. That provides an important safeguard. If it is rejected by Parliament, it cannot be issued and the existing code remains in force. By contrast, most guidance, even statutory guidance, is simply approved by the Secretary of State. Secondly, the school admissions code will contain some admissions practices that we wish to rule in or out irrespective of circumstances, but which would be extremely difficult to define accurately in regulations. Those parts of the code will be mandatory, high-level statements of principles with which authorities will always be required to comply. That is of a different order of exhortation than the guidance arising from the clause.

For those reasons, we do not believe that the words “act in accordance with” would be appropriate for the guidance. We want to ensure that local authorities have sufficient flexibility to respond to local needs when setting up their arrangements. It would not be possible to produce a document that provided such flexibility and had the mandatory basis that the amendment demands.

Amendments Nos. 9 and 22 aim to ensure that statutory guidance issued under the clause is placed in the Library of the House and signalled to Members by a written statement. I fully agree that the documents should be placed in the Library. It is now a matter of custom and practice for every Department, irrespective of what party is in power, to ensure that that happens. I am assured that no example can be found in recent years of a failure by the Department for Education and Skills to place a copy of relevant or important documents in the Library of the House of Commons. Officials further assure me that that is true of other Departments.

As I pointed out, I have laid a draft copy of the guidance before the Committee, and local authorities will be notified when the final version is published. I am sure that all hon. Members would agree that guidance has an important role to play in helping schools and local authorities carry out their day-to-day functions efficiently and fairly while trusting people to respond appropriately according to their local circumstances.

I hope that Conservative hon. Members will take seriously my assurances about placing guidance in the Library. The only bit of advice I shall offer to the hon. Member for Bognor Regis and Littlehampton is that in the unlikely event that he ever does my job, his top priority will not be standing in front of the Dispatch Box and reading out a list of the guidance published that day. I urge him to withdraw his amendment.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

The right hon. Lady is almost certainly right on that last point. There will be a lot of issues to deal with. The 23 per cent. of secondary schools in this country that are underperforming will almost certainly be the No. 1 priority of an incoming Conservative Schools Minister.

I am heartened by the Minister’s agreement that clause 3 is a fundamental part of the Bill. I agree with her that it is, which is one of the key reasons why we supported the Bill on Second Reading. I shall not push the amendments to a vote, because they are essentially probing amendments. We have tabled amendments with the same principle on previous occasions, because of the concern that guidance is becoming a form of tertiary legislation. We need to take great care to ensure that it has political scrutiny at some level beyond Ministers.

I take the Minister’s point about the difference between the admissions code and general guidance—the admissions code is a statutory instrument that receives scrutiny in the House—but I hope that local authorities will adhere strongly to the guidance relating to clause 3, because it is very effective   guidance. I hope that they will pay particular attention to the parts of the guidance that relate to how they should respond to parental representations—they should be taken seriously—and to the aspects relating to the assistance that local authorities should give to parents when they are putting together a proposal for a new school. It is difficult for parents to find the resources and the specialist knowledge to put together such plans, and to obtain information about available sites. I hope that local authorities will take it seriously, devote resources to enabling such things to happen and not act as some schools organisational committees have acted in the past—as though they were there simply to preserve the status quo.

I agree fully that guidance has been placed in the House of Commons Library in recent years. I am delighted to hear that no examples can be found of guidance that has not found its way to the Library. I accept the Minister’s assurances, and I beg to ask leave to withdraw the amendment.